The BC Employment Standards Branch has announced that it is changing how it will apply the "temporary layoff" provisions of the BC Employment Standards Act.

Section 1 of the Act states that a "temporary layoff" means:

• in the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and
• in any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;

Section 1 of the Act further states that "termination of employment" includes a layoff other than a temporary layoff.

The BC Employment Standards Tribunal has interpreted these sections of the Act as follows:

The Act allows an employer to "temporarily layoff" an employee for a period of up to 13 weeks (in any period of 20 consecutive weeks) without incurring any liability for compensation for length of service or any concomitant alternative obligation to give proper advance written notice of termination in lieu of paying compensation...If a "temporary layoff" exceeds the 13-week threshold it is deemed to constitute a termination effective as of the date of the initial temporary layoff--see section 63(5).

IND Diagnostics Inc., BC EST #151/03

Based on the recent decision in Besse v. Dr. A.S. Machner Inc., 2009 BCSC 1316, the Branch has now taken the following position in relation to the temporary layoff/termination of employment provisions in the Act:

...any layoff, including a temporary layoff, constitutes termination of employment unless the possibility of temporary layoff:

-is expressly provided for in the contract of employment;

-is implied by well-known industry-wide practice (e.g. logging, where work cannot be performed during "break-up"); or

-is agreed to by the employee

In the absence of an express or implied provision in an employment agreement that allows temporary layoff, the Act alone does not give employers a general right to temporarily lay off employee.

Where temporary layoff is permitted by the terms and conditions of employment, the Act applies to limit it to

-a layoff of up to 13 weeks in a period of 20 weeks, or

-a period of time in which an employee covered by a collective agreement has the right to be recalled.

(underline added)