362 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
that may inform and govern the practice of temporary layoff in each
province; and (3) some leading decisions of the courts in each province
interpreting the intent of the statutes. Finally, we offer some guidance for
both employers and employees.
WHAT IS TEMPORARY LAYOFF?
The employment standards statutes of British Columbia and Alberta have
varying conceptions of temporary layoff.
In British Columbia employment standards are contained within the
Employment Standards Act1 (“B.C. ESA”). Section 1 defines “temporary layoff”
in the non-union context as “a layoff of up to 13 weeks in any period of
20 consecutive weeks”.
The definition of “termination of employment” found in the same section—“‘
termination of employment’ includes a layoff other than a temporary
layoff”—makes it clear the temporary layoff is not considered to be a
termination. On the plain language of the definition of “termination of
employment”, a difference appears to exist between a “layoff” and a “temporary
layoff”. However, though some may and do view the B.C. ESA as
granting employers the right to effect a “temporary layoff” that does not
amount to a termination, the statute does not define “layoff” or, outside the
definition of “temporary layoff”, set out an affirmative statutory right to layoff
an employee temporarily. As a result, the legislation’s precise intention
on this issue is unclear and requires interpretation, which the courts have
aimed to provide.
Clearly much information and guidance are missing from the legislation
which would help inform employers and employees of their rights and obligations.
First, there is no mention of whether employees are entitled to
wages or any pension or employment insurance benefits during a temporary
layoff, as can arise in Alberta, if the employer wants to extend the initial
period of temporary layoff. Second, the statute does not guide
employers and employees on the proper notice to be given at the time of
layoff, which is an important consideration in Alberta (as discussed below
in greater detail). Indeed, according to the decision of the Employment
Standards Tribunal in Slumber Lodge Motel Corporation Ltd.,2 the B.C. ESA
does not require the employer to provide notice to an employee of a temporary
The B.C. ESA also does not expressly mention extending the temporary
layoff, in contrast to the employment standards legislation of Alberta.
However, under s. 72(1)(a) of the B.C. ESA, employers and employees may