Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 8 - TERMINATION OF EMPLOYMENT
ESA Section 64 – Group terminations
This section outlines the responsibilities of the employer when terminating the employment of 50 or more people at a single location within any 2-month period.
The requirement for written notice of group termination is in addition to the employer’s liability, if any, to individual employee termination under section 63 of the Act.
64. (1) If the employment of 50 or more employees at a single location is to be terminated within any 2 month period, the employer must give written notice of group termination to all of the following:
(a) each employee who will be affected;
(b) a trade union certified to represent, or recognized by the employer as the bargaining agent of, any affected employees;
(c) the minister.
(2) The notice of group termination must specify all of the following:
(a) the number of employees who will be affected;
(b) the effective date or dates of the termination;
(c) the reasons for the termination.
(3) The notice of group termination must be given as follows:
(a) at least 8 weeks before the effective date of the first termination, if 50 to 100 employees will be affected;
(b) at least 12 weeks before the effective date of the first termination, if 101 to 300 employees will be affected;
(c) at least 16 weeks before the effective date of the first termination, if 301 or more employees will be affected.
(4) If an employee is not given notice as required by this section, the employer must give the employee termination pay instead of the required notice or a combination of notice and termination pay.
(5) The notice and termination pay requirements of this section are in addition to the employer's liability, if any, to the employee in respect of individual termination under section 63 or under the collective agreement, as the case may be.
(6) This section applies whether the employment is terminated by the employer or by operation of law.
If an employer terminates 50 or more employees at a single location within any two-month period, the employer must provide written notice of group termination to all affected employees, the Minister responsible for the Ministry of Labour and the trade union, if a trade union is certified to represent the employees or recognized by the employer as the employees’ bargaining agent.
A decision about what constitutes a single location is based on the facts of each case. Factors taken into consideration include:
- the working relationship of the employees affected;
- the degree of integration of their work or worksites;
- the location where employees work from, or are controlled and directed from.
The two-month period is any consecutive two-month period in which terminations occur.
Pilar provides home care services to seniors. All of the administrative, human resources and dispatching decisions are made at the employer’s head office. If the employer goes out of business, all locations would be considered a “single location” for the purpose of this section. This section would apply if there were 50 or more employees affected, including those dispatched from the office.
Over a 6-month period, an employer terminates 20 employees every 6 weeks. Since no more than 40 employees are ever laid off within a single 2-month period, the group termination requirements do not apply.
The written notice referred to in subsection (1) does not have to contain all of the names of the individuals who are affected. It must state the number of employees who will be affected, and the effective date. If there is more than one effective date, it must state the number of employees who will be affected on each date. It must also state the reasons for the termination.
The required notice period will vary depending on the number of affected employees. If an employer is terminating groups of employees on different dates within a two-month period, the required notice must be given to all employees the required amount of time before the effective date of the first termination.
An employer terminates 95 people, giving them the proper eight weeks' group notice. Three weeks later, the employer terminates an additional 35 people, giving only individual notices of between two and four weeks. The employer has now terminated over 100 people within a two-month period. The group notice requirement for all 130 employees is 12 weeks, plus the individual notice requirements. The employer must pay termination pay to make up the balance of the inadequate notice period.
An employer terminates 120 people. It plans to terminate 60 of them on May 31, and the other 60 on June 30. Since all of the employees will be terminated within a two-month period, the notice period is 12 weeks before the effective date of the first termination. This means that all 120 employees must receive their notice by March 1.
See also section 67, Rules about notice.
If an employer does not give notice as required by this section, the employer must give termination pay in lieu of notice. If the length of the notice given does not meet the requirements of this section, the employer must supplement the notice with termination pay. The employer may also choose to give a combination of written notice and termination pay.
Vacation pay is payable on termination pay amounts paid in lieu of written notice.
“Termination pay” in s.1 of the Act means “for each week of notice an employee is entitled to, the amount obtained by totalling the employee’s weekly wages, at the regular wage, during the last 8 weeks in which the employee worked normal or average hours of work and dividing the total by 8.”
Group termination notice and termination pay requirements are in addition to the individual written notice and compensation requirements set out in s.63 of the Act for non-unionized employees or in the collective agreement for unionized employees.
A non-unionized employee who would be entitled to three weeks’ individual notice or compensation for length of service and eight weeks’ group termination notice is entitled to a total of 11 weeks’ notice or pay, or a combination of the two.
Even where termination occurs because of an employer’s bankruptcy or other form of insolvency, employees are entitled to compensation for length of service under s.63 and group termination pay under s.64.
Variance of this section
Under s.72 of the Act an employer and any of its employees may join in a written application to the director to vary the provisions of s.64.
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.64. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in s.64.
Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to s.64 is through the grievance procedure, not through the enforcement provisions of the Act.
A large unionized pulp mill plans to close its operation. The employer reports that 295 union employees and 14 non-union employees will be terminated. All staff must be provided with written group termination notice of at least 16 weeks based on the termination of over 300 employees at the single location. Any issues arising involving the unionized employees will be resolved through the grievance procedure set out in the collective agreement. Any issues arising involving the non-unionized employees will be resolved by the Employment Standards Branch.
Employment Standards Tribunal Decisions
I.W.A. Canada Local 1-3567, BC EST #464/99
Related sections of the Act or Regulation
- s.1, Definition, “termination of employment”
- s.1, Definition “termination pay”
- s.3, Scope of the Act
- s.63, Liability resulting from length of service
- s.65(4) Exceptions
- s.67, Rules about notice
- s.68, Rules about payments
- s.72, Application for variance