Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY

ESA Section 52.2 – Reservists' Leave 


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains the circumstances in which an employee is entitled to take reservists’ leave and the length of time allowed for the leave.


Text of Legislation

52.2

52.2  (1) In this section:

"Canadian Forces" has the same meaning as in section 14 of the National Defence Act (Canada);

"reservist" means a member of the reserve force, as defined in section 2 (1) of the National Defence Act (Canada).

(2) Subject to the regulations, an employee who is a reservist and who requests leave under this section is entitled to unpaid leave, for the period described in subsection (3), if

(a) the employee is deployed to a Canadian Forces operation outside Canada or is engaged, either inside or outside Canada, in a pre-deployment or post-deployment activity required by the Canadian Forces in connection with such an operation,

(b) the employee is deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath, or

(c) the prescribed circumstances apply.

(3) An employee who is a reservist is entitled to take leave under this section for the prescribed period or, if no period is prescribed, for as long as subsection (2) (a), (b) or (c) applies to the employee.

(4) Subject to subsection (5), a request for leave must

(a) be in writing,

(b) be given to the employer,

(i) unless subparagraph (ii) or (iii) applies, at least 4 weeks before the employee proposes to begin leave,

(ii) in the case of leave under subsection (2) (a) or (b), if the employee receives notice of the deployment less than 4 weeks before it will begin, as soon as practicable after the employee receives the notice, or

(iii) in the case of leave under subsection (2) (c), within the prescribed period, and

(c) include the date the employee proposes to begin leave and the date the employee proposes to return to work.

(5) If circumstances require leave to be taken beyond the date specified in the request under subsection (4) (c), the employee must

(a) notify the employer of the need for the extended leave and of the date the employee now proposes to return to work, and

(b) provide the notice referred to in paragraph (a),

(i) unless subparagraph (ii) or (iii) applies, at least 4 weeks before the date the employee had proposed, in the request under subsection (4), to return to work,

(ii) in the case of leave under subsection (2) (a) or (b), if the employee receives notice of the extended deployment less than 4 weeks before the date referred to in subparagraph (i), as soon as practicable after the employee receives the notice, or

(iii) in the case of a leave under subsection (2) (c), within the prescribed period.

(6) If an employee who is a reservist proposes to return to work earlier than specified in the request submitted under subsection (4) or the notice provided under subsection (5), if applicable, the employee must notify the employer of this proposal at least one week before the date the employee proposes to return to work.

(7) An employer may require an employee who takes leave under this section to provide further information respecting the leave.

(8) If an employer requires an employee to provide further information under subsection (7), the employee must

(a) provide the prescribed information in accordance with the regulations, or

(b) if no information is prescribed, provide information reasonable in the circumstances to explain why subsection (2) (a), (b) or (c) applies to the employee and provide it within a reasonable time after the employee learns of the requirement under subsection (7).


Policy Interpretation

Employees who are reservists are entitled to unpaid leave if they are deployed to a Canadian Forces operation outside Canada, or if they are engaged, either inside or outside Canada, in pre-deployment or post-deployment activities in connection with such an operation.

Reservists are also entitled to unpaid leave if they are deployed to a Canadian Forces operation inside Canada that will be providing assistance in dealing with an emergency or its aftermath.

The Reservists’ Leave Regulation provides that employees who are reservists are entitled to 20 days’ unpaid leave to participate in Canadian Forces training activities.

The right to reservists’ leave is available to all eligible employees regardless of how long they have been employed. The leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.

An employee must request the leave in writing, and provide the dates the leave is to begin and end. In the case of a deployment, the employee must provide such notice four weeks before the leave is to begin, if possible, or as soon as is practicable, and keep the employer informed of changes to the length of the deployment which in turn affect the length of the leave. In the case of training, the employee must provide such notice four weeks before the leave is to begin. If more leave is needed, the employee must notify the employer at least four weeks before the employee was supposed to return to work.

Subsection (1)

For the purposes of reservists’ leave, “Canadian Forces” has the same meaning as in the federal National Defence Act. Section 14 of that Act defines “Canadian Forces” as follows:

            Canadian Forces

       14. The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.

Section 2(1) of the National Defence Act says “Reservist” means a member of the reserve force, which is referred to in section 15(3) of that Act as follows:

            Reserve force

      15(3) There shall be a component of the Canadian Forces, called the reserve force, that consists of officers and non-commissioned members who are enrolled for other than continuing, full-time military service when not on active service.

Subsection (2)

An employee who is a reservist and requests leave is entitled to an unpaid leave if the employee is deployed to a Canadian Forces operation outside Canada. The employee is also entitled to a leave if the employee is engaged in pre- or post-deployment activities either inside or outside Canada.

An employee is also entitled to an unpaid leave if the employee is deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath.

The Reservists’ Leave Regulation sets out prescribed circumstances for this subsection. An employee is entitled to unpaid leave if the employee is engaged in Canadian Forces training activities or travelling to or from the location of the training.

Subsection (3)

An employee who is a reservist is entitled to take leave as long as the deployment circumstances referred to in subsection (2) apply.

The Reservists’ Leave Regulation sets out a prescribed period for training activities. An employee who is a reservist is entitled to take leave of up to 20 days per year for training activities. If a reservist participates in more than one training activity, the total time off for all periods of training is 20 days.

Subsection (4)

A request for leave for a deployment must be in writing, and must be given to the employer at least four weeks before the deployment begins. If the employee receives notice of deployment less than four weeks before it will begin, the employee must give notice to the employer as soon as is practicable. The notice must include the date the leave will begin and the date the employee will return to work.

The Reservists’ Leave Regulation requires that a request for leave to participate in a training activity must be given in writing at least four weeks before the employee proposes to begin leave.

Subsection (5)

If circumstances require leave to be taken beyond the return date stated in the original request for leave, the employee must notify the employer of the need for an extended leave and of the new date that the employee proposes to return to work.

In the case of an extended deployment, the employee must notify the employer at least four weeks before the employee had originally planned to return to work. If the employee does not receive notice of the extended deployment in time to give the employer four weeks’ notice, the employee must notify the employer as soon as practicable after the employee receives notice of the extended deployment.

The Reservists’ Leave Regulation requires that, in the case of a training activity, the employee must notify the employer at least four weeks before the employee had originally planned to return to work.

Subsection (6)

If the employee wishes to return to work sooner than he or she specified in either the original request, or in the request for an extension, the employee must notify the employer of the new return date at least one week before the date the employee proposes to return to work.

Subsection (7)

The employer may require an employee who is requesting leave to provide further information.

Subsection (8)

There is presently no prescribed information. The employer is entitled to sufficient information as to the nature and dates of the deployment or pre- or post-deployment activity to satisfy the employer that the employee is entitled to the leave.

Terms and Conditions of Employment Protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also section 56 for an explanation of the effects of leave under this Part. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s. 54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s. 79(2). The determination will include an escalating monetary penalty, subject to s. 98.

Employees Covered by a Collective Agreement

Under the provisions of s. 3, parties to a collective agreement are prohibited from giving up the specific employment protection provided in Part 6. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in this Part of the Act, or Part 6 will be deemed to be incorporated into the collective agreement.

Under s. 3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to Part 6 is through the grievance procedure, not through the enforcement provisions of the Act.


Related Information

Employment Standards Tribunal Decisions

John Dale and Fiona Dale dba Windsor Holdings, BC EST #D495/97

Related sections of the Act or Regulation

ESA

Other

Reservists' Leave Regulation

Factsheets

Leaves and Jury Duty

Collective Agreements and the Employment Standards Act