The British Columbia Supreme Court just certified a class action where the plaintiffs (a group of foreign workers) allege that the employer failed to provide them with the amount of work promised, overtime pay and reimbursements for travel expenses and recruitment fees contrary to the Employment Standards Act. Also, the employees argued the employer breached the contract and its fiduciary duty, and was unjustly enriched for having the workers work without being paid. To top it off, they argued all of these alleged breaches were systemic because there were no practices in place to ensure the employees were properly compensated.
The story goes like this: the employer recruited about 70 temporary foreign workers. Their employment contracts said they would work up to 40 hours, but after they started, they were provided with less than 40 hours of work per week, and they were not compensated for the hours not worked, even though they were able and willing to work. When one employee complained about the lack of hours, her hours were cut even further. In some cases, workers were not given enough hours to meet the requirements to qualify for permanent residency in Canada.
Moreover, when the workers worked overtime, the employer did not always pay them overtime pay. On other occasions, the employer moved worked hours to other days when the employees did not work a full day so that it did not have to pay overtime. Several workers produced pay statements showing overtime hours were worked, but no overtime was paid.
The workers also had to pay recruitment fees to the recruitment companies. The employer argued it had no knowledge of this, and had to do with the recruitment companies. The employment agreements also promised the foreign workers that the employer would pay their return airfare. Again, the employer pointed to the recruitment companies and argued it was requesting invoicing on several occasions because it expected to be billed in due course.
Employees have had success in the past with complaints under the Employment Standards Act regarding unpaid wages and airfare. But once the employees applied for a class action, several class members were contacted by the employer, which caused the employees to feel threatened.
The Court had no problems certifying the class action under the Class Proceedings Act. All of the requirements were met: there was a cause of action that was properly pled; there was an identifiable class; there was an appropriate representative plaintiff in the case; there were common issues; and the class action was a preferable procedure.
As a result, the action met the statutory requirements to go ahead.
As we saw from the overtime class actions in the banking industry, many class actions do not get certified and do not proceed. But this one did. We will keep you posted on any developments.
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, PhD
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