No. 18–Wage Recovery Appeals
Wage Recovery Complaints Under Part III of the Canada Labour Code
The Canada Labour Code (the Code), Part III (Standard Hours, Wages, Vacations and Holidays), sets minimum workplace standards to ensure that employees who work in federally regulated industries receive the pay and benefits to which they are entitled and that their conditions of work meet basic standards. Hours of work, payment of wages, vacation pay, general holiday pay, termination pay and severance pay are among the topics covered under Part III of the Code.
If an employee believes that their employer has violated provisions of Part III of the Code, they may file a complaint with the Labour Program of Employment and Social Development Canada (ESDC). After a complaint is filed, the Labour Program will begin investigations. If a monetary complaint is determined to be justified, the Labour Program will attempt to have the employer voluntarily pay the wages or other amounts owing. If the employer refuses to pay, a payment order will be issued. If the alleged violations are determined to be unfounded, the complainant (employee) will be notified of the finding and a notice of unfounded complaint may be issued. A notice of voluntary compliance may also be issued to an employee to notify them of the finding that the employer has voluntarily paid the amount owing.
For more information about complaints under Part III of the Code, please contact the Labour Program at 1-800-641-4049 or consult its website.
Important Note: You MUST file a wage recovery complaint with the Labour Program, not with the CIRB.
Review by the Minister of Labour (the Minister)
A person affected by a payment order, a notice of unfounded complaint or a notice of voluntary compliance made under Part III of the Code may request a formal review, in writing and with reasons, to the Minister, within 15 days after the day the order or notice was served. In requesting a review of a payment order, an employer or director must pay to the Minister in trust the amount indicated on the payment order and any required administrative fee (or give security, in a form satisfactory to the Minister), within 15 days after the day the order was served. In a review decision, the Minister may confirm, vary or rescind an order or notice. The Minister can also treat a request for review as an appeal of the order or notice and refer the matter to the CIRB, without first undertaking a review.
Important Note: You MUST file a request for review with the Labour Program, not with the CIRB.
Wage Recovery Appeals
There are two ways in which the CIRB can receive a wage recovery appeal under Part III of the Code.
Referral by the Minister
As mentioned above, the Minister can treat a request for review as an appeal of the order or notice and refer the matter to the CIRB. In such cases, the Board shall be considered to have an appeal before it.
Direct Appeal Filed with the CIRB
A person affected by a review decision made under Part III of the Code may appeal directly to the CIRB.
Please note that a person may not file an appeal of a payment order, a notice of unfounded complaint or a notice of voluntary compliance directly with the CIRB. If a person affected by a payment order, a notice of unfounded complaint or a notice of voluntary compliance disagrees with the order or notice, they may request the Minister to conduct a formal review of the order or notice. For more information about filing a request for review, please contact the ESDC Labour Program.
After the Minister issues his or her review decision, a person affected by the review decision may file an application to appeal the review decision, pursuant to sections 251.11(1) and (1.2) of the Code,with the CIRB.
Who may file an application to appeal directly with the CIRB, and when can such an application be filed?
A person affected by a review decision may file an appeal within 15 days after the day the decision was served, but only on a question of law or jurisdiction. An appeal must be in writing and include reasons for the appeal. The appeal may be denied if reasons are not provided.
What must accompany an application to appeal a review decision concerning a payment order?
An employer or director who appeals a review decision concerning a payment order must first pay to the Minister the amount indicated in the review decision of the payment order. An employer (but not a director) must also pay to the Minister any administrative fee (a minimum of $200 or 15% of the amount of the review decision of the payment order, whichever amount is higher). The Minister may allow an employer or director to give security (e.g., a bond or irrevocable letter of credit) for all or part of the amount required. Any amount already paid to the ESDC Labour Program at the time of the request for review is subtracted from the amount required when filing an application to appeal. Payment will be held in trust by the Minister pending the outcome of the appeal.
How to File an Application to Appeal with the CIRB
A Wage Recovery Appeal Form is available online or at one of the Board’s regional offices. It is strongly recommended that applications use this form. It asks for the necessary information that the Board requires to consider and determine the application to appeal. Not completing this form may cause delays in the appeal process.
The applicant may file their application to appeal at any of the Board’s regional offices. It may also be submitted electronically through the Board’s e-Filing Web Portal, delivered in person or sent by courier or mail. In such cases, the application to appeal is deemed to be filed on the date of receipt by the Board. If the application to appeal is sent by registered mail, the filing date is the date it was registered and mailed.
The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential pursuant to section 22 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations). The Board provides public access to case files and posts key decisions on its website. Board decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.
What happens after the Part III appeal is received by the CIRB?
Referral by the Minister
In a referral from the Minister, the referral would include a copy of any document that the Minister and/or the inspector relied on for the purpose of making the decision or issuing the order or notice being appealed, as well as confirmation that an employer or director has paid the amount on the payment order and provided any required administrative fee or security within the required time limit.
Direct Appeal Filed with the CIRB
When an application to appeal is filed directly with the CIRB, the Board will inform the Minister in writing that an application to appeal has been filed, provide a copy of the application to the Minister, request from the Minister a copy of any document that the Minister relied on for the purpose of making the decision being appealed and obtain confirmation that an employer or director has paid the amount on the payment order or in the review decision of the payment order and provided any required administrative fee or security within the required time limit.
Upon receipt by the CIRB of the documents sought from the Minister and confirmation of payment by an employer or a director of any amount or security, the application to appeal will be processed by the CIRB.
A letter will be sent to the applicant and respondent, with a copy to the Minister, acknowledging receipt of the appeal and enclosing a copy of any document that the Minister and/or the inspector relied on for the purpose of making the decision or issuing the order or notice being appealed. The letter will also inform the parties of the name and contact information of the CIRB Industrial Relations Officer (IRO) appointed to the appeal. The IRO is responsible for managing the file and assisting the parties in reaching a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 1–The Role of the Board’s Industrial Relations Officers.
Filing of Further Documents or Submissions
If either party (applicant or respondent) wishes to file any further documents/submissions, that party must do so within 15 days from the receipt of the Board’s letter. Upon receipt of any further documents/submissions, the other party will have 10 days to file a submission, if any.
The Board may refuse to consider any documents/submissions received after the prescribed time limit.
Exchange of Documents
Parties are required to serve on the other party/parties a copy of any response, reply or other document filed with the Board and to advise the Board in writing of the time and manner of delivery, which is called service. The manner of service includes delivery by fax, by courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the appeal.
Representations by Minister
The Minister may, in an appeal under Part III of the Code, present evidence and make representations to the Board. If the Minister wishes to do so, he or she will be requested to file any documents/submissions within 15 days from receipt of the Board’s letter and provide a copy to the other parties. If the Minister makes representations in writing to the Board, the other parties will have 10 days from the receipt of the Minister’s representations to file a reply.
The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary and the information acquired by the officer in the mediation process shall remain confidential and shall not be divulged to the Board.
If the appeal is not resolved, it will be referred to the Board and the Board may decide the appeal without holding an oral hearing. In such a case, the Board would determine the appeal based on the written submissions filed by the parties. If the Board decides to hold an oral hearing, it will inform the parties of the date and place of the hearing.
The Chairperson of the Board may appoint a member of the CIRB or an external adjudicator to hear and determine a wage recovery appeal. Members of the CIRB and external adjudicators have all the powers, duties and functions conferred on the CIRB by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.
Decision of the Board
The Board will notify the parties in writing of its decision, with reasons. A copy of the Board’s decision will also be provided to the Minister. All key decisions of the CIRB are published on its website.
What remedies can be ordered by the Board?
The Board has the power to confirm, rescind or vary, in whole or in part, the decision being appealed, and to direct the payment of amounts that are held in trust pending the outcome of the appeal.
In an appeal concerning a payment order filed by an employer or director, if the appeal is rejected or considered inadmissible, the Board will direct that any payment or security provided in relation to the appeal be applied to satisfy the payment order or review decision and any required administrative fee. In such a case, the amount of the payment order will be paid out to the employee.
If the appeal concerning a payment order filed by an employer or director is successful, the Board will direct that any payment or security provided in relation to the appeal be returned to the employer or director.
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