British Columbia court ruling results in temporary layoff changes

Court found provisions in ESA didn’t give employers carte blanche to temporarily lay off employees; province adjusted layoff guidelines to reflect court’s interpretation

The British Columbia director of employment standards has changed the way temporary layoff provisions in the Employment Standards Act are applied as a result of a recent British Columbia Supreme Court decision.

In the case of Besse v. Dr. A.S. Machner Inc. (see the Oct. 21, 2009, issue of Canadian Employment Law Today or search for article #2051), the court reiterated other legal judgments that stated the Employment Standards Act does not give employers the right to temporarily lay off employees unless the right to lay-off is part of the employment relationship. In this case, the court ruled the temporary layoff constituted a wrongful dismissal.

Employment Standards has revised its Termination of Employment Fact Sheet and the temporary layoff information in its Interpretation Guidelines Manual to make it clear that any layoff, including a temporary layoff, results in a termination of employment unless a temporary layoff is:

•Expressly provided for in the contract of employment.
•Implied by well-known industry-wide practice — such as logging, where work cannot be performed during a "break-up."
•Agreed to by the employee.

Employment Standards further states that it is up to the employer to prove that the employment relationship allows for a temporary layoff in one of these ways.

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