Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 1 - INTRODUCTORY PROVISIONS
ESA Section 1 – Definitions – Temporary Layoff
This section contains definitions for terms used throughout the Employment Standards Act and its Regulation.
"temporary layoff" means
(a) in the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and
(b) in any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;
This provision applies to employees covered by a collective agreement. Section 1(2) of the Employment Standards Regulation states that for purposes of subsection (a) above, “exceeds” means the specified recall cannot be exceeded by more than 24 hours.
That is, an employee must be recalled within 24 hours after their specified recall date or their employment is considered terminated.
The Act does not give employers a general right to temporarily lay off employees.
A fundamental term of an employment contract is that an employee works and is paid for his or her services. An employer cannot temporarily lay off an employee unless temporary layoff:
- is expressly provided for in the contract of employment;
- is implied by well-known industry-wide practice (e.g. logging, where work cannot be performed during “break-up”); or
- is agreed to by the employee.
In the absence of an express or implied provision allowing temporary layoff, a layoff constitutes termination of employment.
The onus is on the employer to prove that the employment relationship provides for a temporary layoff in one of the above ways. In situations where temporary layoff is permitted by the terms and conditions of employment, the Act limits the length of the layoff.
If temporary layoff is permitted, employers may temporarily lay off employees for up to 13 weeks in a consecutive 20-week period. The 20-week period begins on the first day of the layoff and the 13-week period is exceeded on the first day of the 14th week of layoff. The layoff is deemed to be a termination of employment once the 13 weeks of layoff are exceeded.
Under the Act, any week in which an employee earns less than 50% of regular wages is considered to be a week of layoff for purposes of Part 8, Termination of Employment. (Refer to s.62, definition of “week of layoff)
Related sections of the Act or Regulation
- s.1. Definition “regular wage”
- s.1, Definition “right of recall”
- s.1, Definition “termination of employment”
- s.3, Scope of the Act.
- s.62, Definition “week of layoff”
- s.63, Liability resulting from length of service
- s.66, Director may determine employment has been terminated.
- s.67, Rules about notice
- s.72, Application for variance
Termination of Employment
Collins v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Automotive Group)  B.C.J. No. 1201; 7 B.C.L.R. (3d) 13;
Dawn Besse v. Dr. A.S. Machner Inc., 2009 BCSC 1316