Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 54 – Duties of employer
This section explains the responsibilities of the employer before, during and after an employee requests leave under this Part of the Act.
54. (1) An employer must give an employee who requests leave under this Part the leave to which the employee is entitled.
(2) An employer must not, because of an employee's pregnancy or a leave allowed by this Part,
(a) terminate employment, or
(b) change a condition of employment without the employee's written consent.
(3) As soon as the leave ends, the employer must place the employee
(a) in the position the employee held before taking leave under this Part, or
(b) in a comparable position.
(4) If the employer's operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, comply with subsection (3) as soon as operations are resumed.
Remedies under s.79(2) of the Act protect an employee’s entitlements under Part 6. A determination issued under s.79(2) will include an escalating monetary penalty, subject to s.98.
If any dispute occurs about the reason for a job change, layoff, termination, or a business reorganization, under s.126(4)(c), the onus is on the employer to justify that the changes would have taken place even if the employee had not taken the leave or jury duty under this Part.
Any leave under Part 6 is a statutory entitlement, not something that may or may not be granted at the discretion of the employer. Leaves under this Part are available to employees regardless of how long they have been employed.
Employers may not terminate an employee for reasons related to a leave under this Part of the Act.
An employer gives Alice notice of termination immediately upon her return to work after pregnancy leave, merely because the employer prefers the replacement employee. This is a contravention of s.54, because the employer’s action was caused by an absence authorized by this Act.
Any change in a condition of employment must be with the employee’s written consent. An employer may not use the employee’s leave of absence to make significant changes to the employee’s job. Changes are only acceptable if they are unrelated to the employee’s absence and would have occurred even if the employee had been at work.
The employer has a statutory obligation to allow the employee an orderly return to work at the end of the leave, or jury duty, to the position held by the employee before taking the leave, or a comparable position. The burden is on the employer to establish that they attempted to recall the employee.
The requirements of this section extend beyond simply allowing the employee to return to work.
When determining a “comparable position”, the conditions of employment which are considered include, but are not limited to, the following:
- job title
- job duties
- reporting relationships
- status as perceived by other staff and the public
- pay package
- benefit plans
- hours of work
- location of work
- location of office, desk
- provision of equipment and tools
If an employee begins work in the new position, this may be, but is not necessarily, evidence of accepting the changed conditions of employment. The employee is expected to accept reasonable changes in working conditions. If the employee is not happy with a change in position or conditions of employment, the employee must convey any dissatisfaction to the employer or the director.
If the employer's business operations have been suspended or discontinued at the time an employee's leave ends, the employer must comply with Part 6, s.54 (3) when operations resume.
If an employer reduces operations for genuine business reasons during an employee's leave, and the employee returns to a significantly different or lesser job, it must be determined what would have happened had the employee not taken leave under this Part. If the employee would have been affected in the same manner if they had continued working and had not taken leave, the employer has not contravened this section.
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 sections of the Act or Regulation
- s 1, Definition, “conditions of employment”
- s.1, Definition, “temporary layoff”
- s.1, Definition, “termination of employment”
- s.1, Definition, “termination pay”
- s.3, Scope of the Act
- s.50, Pregnancy leave
- s.51, Parental leave
- s.52. Family Responsibility Leave
- s.52.1, Compassionate Care Leave
- s.53, Bereavement leave
- s.56, Employment deemed continuous while employee on leave or jury duty
- s.63, Liability resulting from length of service
- s.64, Group terminations
- s.67, Rules about notice
- s.79(2), Determinations and Consequences
- s.126(4)(b), Evidence and burden of proof