Construction worker employed at multiple sites protected by the Employment Standards Act
John Tyler was employed by Daryl-Evans Mechanical Ltd. (DEM) as a plumber from March 6, 1994, to July 15, 1999, on a number of different and consecutive construction projects on various sites. DEM’s principal business is construction. Mr. Tyler did not belong to a union. When his employment with DEM ceased, Mr. Tyler sought compensation under the terms of the Employment Standards Act. The director of employment standards dismissed the claim.
Section 63 of the Act sets out minimum requirements for notice in lieu of severance pay. However section 65 of the Act provides that section 63 is not applicable to an employee employed at a construction site by an employer whose principal business is construction. The basis for the dismissal of Mr. Taylor’s claim by the Employment Standards Branch was that he was working on construction sites, thereby excluded from the notice provisions of the Act.
Mr. Tyler appealed successfully to the tribunal. The adjudicator ordered DEM to pay Mr. Tyler compensation for length of service. DEM sought a reconsideration of the adjudicator’s decision. The tribunal upheld the adjudicator’s decision stating that Mr. Tyler was entitled to compensation as an employee of some permanence who was not employed to work on a single site.
DEM then filed a petition with the British Columbia Supreme Court to quash the tribunal’s decision and to affirm the decision of the director.
The standard to be applied by the Court in a petition to quash a decision of the director of employment standards was that of patent unreasonableness. The Court would accord a high level of deference to a decision of the tribunal and only interfere where its decision was patently unreasonable. This means that it is not enough that the decision in question was wrong in the eyes of the Court. In order to be considered patently unreasonable, it must be found by the Court to be clearly irrational.
It was argued by DEM that the decision of the tribunal was patently unreasonable because it purported to legislate which it must not do. It focused on the legislative intent of the Act, which had recently been amended as a result of an extensive study and report prepared by Mark Thompson, who had been commissioned to prepare the report. The report acknowledged that the provision in the former Act dealing with severance pay for construction workers was subject to several interpretations and should be clarified.
However the legislature chose not to make any changes. DEM argued that it could be inferred from the fact that the legislature did not change the wording that it meant to leave the exemption broad enough to cover both short-term workers on one site and those workers who were retained by employers between projects.
The tribunal had focused on the fact that section 65 of the Act refers to an employee employed at “a” construction site. Mr. Tyler worked continuously for DEM at many construction sites, not just one. Therefore he was not prevented from compensation in lieu of notice upon his termination.
The Court considered the Interpretation Act which stated that “words in the singular include the plural, and words in the plural include the singular.” The tribunal in their interpretation of the Employment Standards Act had not taken the Interpretation Act into consideration.
The Court held that, although the tribunal had not considered the implications of the Interpretation Act, the decision of the tribunal was not clearly irrational nor was it an attempt to legislate or negate the legislative will.
The petition to quash the decision of the tribunal was dismissed.
For more information:
• Daryl-Evans Mechanical Ltd. v. British Columbia (director of employment standards), 2002 BCSC 48.
Section 63 of the Act sets out minimum requirements for notice in lieu of severance pay. However section 65 of the Act provides that section 63 is not applicable to an employee employed at a construction site by an employer whose principal business is construction. The basis for the dismissal of Mr. Taylor’s claim by the Employment Standards Branch was that he was working on construction sites, thereby excluded from the notice provisions of the Act.
Mr. Tyler appealed successfully to the tribunal. The adjudicator ordered DEM to pay Mr. Tyler compensation for length of service. DEM sought a reconsideration of the adjudicator’s decision. The tribunal upheld the adjudicator’s decision stating that Mr. Tyler was entitled to compensation as an employee of some permanence who was not employed to work on a single site.
DEM then filed a petition with the British Columbia Supreme Court to quash the tribunal’s decision and to affirm the decision of the director.
The standard to be applied by the Court in a petition to quash a decision of the director of employment standards was that of patent unreasonableness. The Court would accord a high level of deference to a decision of the tribunal and only interfere where its decision was patently unreasonable. This means that it is not enough that the decision in question was wrong in the eyes of the Court. In order to be considered patently unreasonable, it must be found by the Court to be clearly irrational.
It was argued by DEM that the decision of the tribunal was patently unreasonable because it purported to legislate which it must not do. It focused on the legislative intent of the Act, which had recently been amended as a result of an extensive study and report prepared by Mark Thompson, who had been commissioned to prepare the report. The report acknowledged that the provision in the former Act dealing with severance pay for construction workers was subject to several interpretations and should be clarified.
However the legislature chose not to make any changes. DEM argued that it could be inferred from the fact that the legislature did not change the wording that it meant to leave the exemption broad enough to cover both short-term workers on one site and those workers who were retained by employers between projects.
The tribunal had focused on the fact that section 65 of the Act refers to an employee employed at “a” construction site. Mr. Tyler worked continuously for DEM at many construction sites, not just one. Therefore he was not prevented from compensation in lieu of notice upon his termination.
The Court considered the Interpretation Act which stated that “words in the singular include the plural, and words in the plural include the singular.” The tribunal in their interpretation of the Employment Standards Act had not taken the Interpretation Act into consideration.
The Court held that, although the tribunal had not considered the implications of the Interpretation Act, the decision of the tribunal was not clearly irrational nor was it an attempt to legislate or negate the legislative will.
The petition to quash the decision of the tribunal was dismissed.
For more information:
• Daryl-Evans Mechanical Ltd. v. British Columbia (director of employment standards), 2002 BCSC 48.
