Seven-year wage dispute remitted for new investigation after tribunal finds unfair process
After seven years of employment standards proceedings, a British Columbia employer must undergo a new investigation and determination in a wage dispute involving commission structure changes and a finding that the employee was constructively terminated.
In a decision released Dec. 3, 2025, Justice Jennifer Lynn Whately dismissed Bioriginal Food & Science Corp.'s judicial review petition, upholding the Employment Standards Tribunal’s order to cancel the determination and return the matter to the Director for investigation and determination afresh.
The case arose from disputes over unilateral changes to a sales employee’s commission structure and whether those changes, and later events, resulted in a termination of her employment, as well as from the subsequent findings and procedural steps taken by the Director and the Employment Standards Tribunal.
Angela Zavediuk, who worked in sales at Bioriginal from January 2015 to November 2020, filed her first complaint in April 2018 alleging unauthorized wage deductions totaling $107,179. Five additional complaints followed, including allegations of mistreatment and violations of multiple ESA provisions.
Did wage changes add up to termination?
The first delegate investigating the matter, Delegate S, issued a report in October 2020 that concluded that Bioriginal had unilaterally changed Zavediuk's commission structure in May 2017: “By unilaterally changing how it calculated her wages under its incentive program, [the employer] terminated her employment, following section 66 of the Act."
Delegate S found the employer owed $201,061. However, he left the branch shortly after, triggering a 16-month unexplained delay before a new delegate took over in March 2022.
The eventual adjudicating delegate, the third to handle the file, issued a determination in August 2023 ordering Bioriginal to pay $97,615. Critically, this delegate rejected the section 66 finding, stating: "I agree with [Delegate S] that there was a unilateral change to a condition of the complainant's employment (i.e., her incentive compensation), but do not agree that this change was substantial, such that would make it proper for me to exercise my discretion to find the complainant had been terminated."
Instead, the adjudicating delegate found that Bioriginal had constructively terminated Zavediuk in November 2020, not May 2017.
Section 66 and ‘substantial alteration’ test
Section 66 of the ESA provides that "if a condition of employment is substantially altered, the director may determine that the employment of an employee has been terminated." The determination of whether changes to compensation structures meet this threshold is discretionary.
In this case, the shifting findings on whether the May 2017 commission changes were substantial enough to trigger a finding of termination became central to the tribunal’s ultimate decision. The tribunal noted that key factual issues remained unresolved, including findings based on the parties' expectations regarding employment contract terms and whether compensation changes over time were contractually contemplated.
The tribunal found these issues were not amenable to appellate review and required fresh investigation by the director.
Denied procedural fairness
On reconsideration, the tribunal determined that Zavediuk had been denied procedural fairness despite making extensive submissions. The tribunal found that "if new findings are made in a determination which contradict other findings shared with the parties during the investigation of a complaint, so that the opportunity for an informed and effective presentation of a party's case to the Tribunal is for that reason frustrated, a natural justice concern may arise."
The tribunal emphasized that the point, however, is not the number of submissions the [employee] delivered, or their length, but what the nature and substance of the issues were that those submissions were intended to address."
Ultimately, the tribunal concluded: "In our view, the failure to alert [Zavediuk] that the determination would incorporate new findings means that the process followed in the investigation was unfair."
See Bioriginal Food & Science Corp. v Employment Standards Tribunal, 2025 BCSC 2396
