THE ADVOCATE 361
VOL. 76 PART 3 MAY 2018
A COMPARATIVE REVIEW OF THE LAW
IN BRITISH COLUMBIA AND ALBERTA
By Shafik Bhalloo and Hana Holbrook*
In a fluctuating economy, an employer may search for ways to cut
costs to survive. An employer may consider temporarily laying off
some of its employees during a period of minimal business activity.
A temporary layoff, generally speaking, is a practice that temporarily
suspends, but does not terminate, the contract of employment without
any obligation on the part of the employer to provide the employee with
advance notice or severance pay. The parties’ contractual relationship persists
during the layoff term and there is an expectation that the employee
will be recalled when the employer’s business improves.
While the practice of temporary layoff is not novel, it is not universally
understood. Some of this confusion may result from the interplay between
the seemingly simple and straightforward, but widely differing, definitions
of temporary layoff in different provincial employment standards legislation
and the common law decisions of courts interpreting that legislation.
In practice, courts have dramatically limited the use of temporary layoff
provisions contained in some pieces of provincial employment standards
legislation. If temporary layoff is implemented under a misunderstanding
of the law of the jurisdiction, serious unintended consequences may follow,
particularly for the employer. In some cases, temporary layoff may be construed
as a substantial change in the terms of the employee’s employment
contract amounting to constructive dismissal at common law, resulting in
liability for wrongful dismissal.
This article addresses the interplay between the common law and statutory
law regimes governing temporary layoffs in a non-union context in
British Columbia and Alberta, examining (1) the statutory regime governing
temporary layoffs and, in particular, the varying definitions of “temporary
layoffs” contained in provincial legislation; (2) the policy considerations
* The authors thank Herb Silber, Q.C., for his comments and skillful editing.