Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 8 - TERMINATION OF EMPLOYMENT

ESA Section 67 – Rules about notice


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains when notice of termination that has been given to an employee under Part 8 has no effect. This section also explains how an employee’s conditions of employment are maintained and protected during this notice period. 


Text of Legislation

67. (1) A notice given to an employee under this Part has no effect if

(a) the notice period coincides with a period during which the employee is on annual vacation, leave, temporary layoff, strike or lockout or is unavailable for work due to a strike or lockout or medical reasons, or

(b) the employment continues after the notice period ends.

(2) Once notice is given to an employee under this Part, the employee’s wage rate, or any other condition of employment, must not be altered without the written consent of

(a) the employee, or

(b) a trade union representing the employee.


Policy Interpretation

This section of the Act provides that written notice of termination is not valid when given to employees who are not able to work during their notice period.

Subsection (1)(a)

Written working notice of termination has no effect if it is given while an employee is on vacation or using up banked time, or is on jury duty, temporary layoff, strike, lockout, or other leave (either employer-granted or as provided under this Act). In these circumstances, an employer must pay compensation for length of service upon termination of the employee.

If, after written working notice is given, an employee commences leave under Part 6, Leaves and Jury Duty, or is unavailable for work due to a strike, lockout, or for medical reasons, the notice period is interrupted and resumes upon conclusion of the interruption. An employer cannot require an employee to take vacation during the notice period.

Subsection (1) (b)

Notice of termination is without effect if an employee continues to work past the end of the notice period.

Variance of s.64

An employer and any of its employees may submit a written joint application to the director under s.72(i) requesting a variance to s.64 (notice and termination pay requirements for group terminations).

If an employee quits before the employer's termination notice period ends, the employer is only required to pay wages up to the employee’s last day of work.

Subsection(2)

Once notice of termination has been given, the conditions of employment, as defined in s.1 of the Act, cannot be changed unless the employee (or the trade union representing the employee, where applicable,) agrees to the change in writing.

Employees covered by a collective agreement

Under s.3 of the Act parties to a collective agreement are prohibited from giving up the specific employment protection provided in s.67. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in s.67.

Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to s.67 is through the grievance procedure, not through the enforcement provisions of the Act.


Related Information

Related sections of the Act or Regulation

ESA

Other

See Employment Standards Factsheets

Factsheets

Termination of Employment

Collective Agreements and the Employment Standards Act

Variances