I briefly discussed the Besse v. Dr. A.S. Machner Inc., 2009 BCSC 1316, decision in a post I wrote in October 2009 ("BC Employment Standards Branch announces change in how Act's "temporary layoff" provisions to be applied").

Besse confirmed that the temporary layoff provisions in the BC Employment Standards Act ("ESA") do not modify the common law such that all employers have the right to temporarily layoff employees for up to 13 weeks in a 20 week period without being exposed to a constructive claim. 

Rather, the provisions in the Act simply qualify employment agreements in which the right to lay-off has already been expressly agreed to by the parties. (i.e., in such a case, the parties cannot contract for a temporary layoff period that is greater than 13 weeks in a period of 20 weeks).

In this month's issue of The Advocate, lawyers Shafik Bhalloo and Gareth Carline, both at Kornfeld Mackoff Silber LLP, have written an article in which they call for reform of the temporary layoff provisions in the ESA.

The article - entitled "Employers Beware: The Myth Of Temporary Layoff May Result In A Wrongful Dismissal Liability" - traces the legislative history of the temporary layoff provisions and the case law that has interpreted it. (They also turn their attention to the temporary layoff provisions in employment standards legislation in other provinces.)

While the authors acknowledge that the Employment Standards Branch has made efforts to clarify/publicize this issue - including in this Termination of Employment Factsheet  - they are of the view that the current language in the ESA could still leave employers (and employees) with the false impression that employers have the right to impose temporary layoffs without facing liability for a constructive dismissal. As such, they are of the view that legislative reform is "absolutely necessary" to address this issue.