Employment Standards vs. Common Law Rights

In Wong v. Shell Canada, an employee, after being terminated without notice, submitted a complaint to the Employment Standards Branch. The Employment Standards Branch investigated and determined that the employee had been released for just cause. The employee appealed the decision of the Employment Standards Officer. A Senior Policy Advisor conducted a review but denied the employee’s appeal on the grounds that there was sufficient cause for dismissal. The employee then commenced an action in the Court of Queen’s Bench for wrongful dismissal.

The employer argued that the action should be dismissed because the matter in issue had already been decided. The Master and the Court of Queen’s Bench agreed with the employer. The employee then appealed to the Court of Appeal. The Court of Appeal held that while the Employment Standards Code preserves the common law rights of action for wrongful dismissal, it does not give the employee the right to both the statutory remedy and the common law remedy. By seeking redress through the Employment Standards Code, the employee was bound by the decision of the Employment Standards Officer which was final and binding. The Court of Appeal, in denying the appeal, stated that the test to be applied was: 1. has the same question been decided in a prior judicial decision; 2. was the judicial decision final; and 3. were the parties to the judicial decision the same as the parties to the proceedings.

As a result of this decision, it is important for an employee to determine which remedy to pursue. Although there are no legal costs involved when seeking redress through the Employment Standards Branch, consideration must be given to the very short notice periods provided by the Code as compared to that imposed by the common law. For example, the Code provides for only 8 weeks notice when an employee has been employed for 10 years or more while under the common law one might be entitled, in a proper case, to more than 10 months.

It is important for any terminated employee to obtain proper legal advice before making a complaint to the Employment Standards Branch.