Earlier this summer, the British Columbia government extended the Employment Standards Act (ESA) temporary layoff provisions to a maximum of 24 weeks for cases in which the COVID-19 emergency is a cause of all or part of the layoff. That extension ended on August 30, 2020.
Employees who have been laid off for at least 13 weeks in any 20 week period, and who remain laid off, may now be permanently dismissed.
This triggers a statutory obligation on the employer to provide employees with notice of dismissal or pay in lieu of such notice. The amount of that notice or pay varies depending on the employee’s length of service.
Common law obligations may also be triggered.
B.C. Variances To Extend a Temporary Lay-off Beyond August 30, 2020
Section 72 of the ESA allows an employer and any of its employees to jointly apply to the Director of Employment Standards to vary certain provisions of the ESA, including the 13 week maximum temporary layoff period.
Section 73 of the ESA allows the Director of Employment Standards to vary a time period if he or she is satisfied that:
- a majority of the employees who will be affected by the variance are aware of its effect and approve of the application, and
- the variance is not inconsistent with the purposes of the ESA.
The purposes of the ESA are:
- to ensure that employees in British Columbia receive at least basic standards of compensation and conditions of employment;
- to promote the fair treatment of employees and employers;
- to encourage open communication between employers and employees;
- to provide fair and efficient procedures for resolving disputes over the application and interpretation of this Act;
- to foster the development of a productive and efficient labour force that can contribute fully to the prosperity of British Columbia; and
- to contribute in assisting employees to meet work and family responsibilities.
The government of B.C.undertook to process all complete applications received on or before August 30, 2020. Variances are being made effective the date the application was received.
Normally, pursuant to section 30 of the Employment Standards Regulation, an application for a variance is made by letter. That letter must be signed by the employer and a majority of the employees affected by the variance.
Section 30.2 of the Employment Standards Regulation now permits an application for a variance to extend a temporary layoff to be made without being signed by employees. Such an application must:
- be made in a form and manner required by the Director,
- be certified by the employer and include written approvals, made in a form and manner required by the Director, from a majority of the employees who will be affected by the variance, and
- the variance requested;
- the duration of the variance;
- the reason for requesting the variance;
- the employer’s name, address, email address and telephone number;
- the name, email address and home phone number of each employee whose written approval is included in the application; and
- the total number of employees who will be affected by the variance.
Employee Opposition to a Variance
A variance can be approved in the face of employee opposition, as long as a majority of affected employees support it. If a variance is issued, all affected employees who continued to be employed as of the date of the application remain laid off. That includes those who opposed it.
By way of example, an employer with 48 employees must obtain agreement of only 25 employees.
Once a variance is granted, section 73(4) of the ESA requires the employer to post a copy of it in each workplace, in locations where it can be read by any affected employees.
The document may be posted briefly.
Employees whose consent were not sought and who do not see the decision posted may have no idea that their legal rights have been altered.
A majority of affected employees may apply under section 86 of the ESA to the Director of Employment Standards to cancel a variance. But they must know about it first.
Unlike Alberta, British Columbia does not disclose online variances granted. It is unclear how many, if any, are refused. Employees may feel that the entire process is shrouded in secrecy.
After all, employment standards legislation exists to provide a minimum level of protection to employees.
Repeatedly eroding these protections, particularly through a process that lacks transparency, renders key basic rights meaningless.
While governments are seeking to assist employers in response to the COVID-19 situation, it is important that employee rights not be eroded in the process.
This is a modified version of a September 13, 2020 article appearing in online publications including the Kelowna Capital News. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.