THE ADVOCATE 367
VOL. 76 PART 3 MAY 2018
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 employees.
Collins and Besse demonstrate the importance of including an express
provision in the employment contract creating the right to temporary layoff.
In British Columbia, where the right to temporary layoff is not found in
the employment contract, the common law regime will prevail and the
employee will be able to claim constructive dismissal.
Since Collins and Besse were decided, the B.C. Supreme Court has had further
opportunities to examine and provide clarification on temporary layoffs.
Most decisions tend to uphold the reasons adopted in Collins and
Besse.13 In Thru Windo Cleaners Inc. v. Mahood,14 the court clarified that
“unless a term for temporary layoff is expressly agreed to or clearly
impliedly agreed to, consistent with the definition of the Employment Standards
Act, a termination can be considered to have occurred upon a layoff
of over 13 weeks for an employee without a right of recall”.15
Though the B.C. Supreme Court has been consistent in applying its
approach to temporary layoff, the Employment Standards Tribunal has not.
In earlier decisions, the tribunal found that employer have a right under the
B.C. ESA to lay off an employee unilaterally and that temporary layoff will
become a deemed termination when the layoff period exceeds 13 weeks.16
However, in more recent decisions, the tribunal seems to be adopting the
reasoning of the court in Collins and Besse in finding that temporary layoff
is a fundamental breach of the employment contract if there is no express
or implied term.17
The Alberta Court of Appeal’s decision in Vrana v. Procor Limited18 helped
clarify the law on temporary layoff in Alberta. The plaintiff was employed
by the defendant for 16 years. Due to a work shortage, the plaintiff was laid
off. Rather than waiting out the 59 days of temporary layoff, the plaintiff
brought a wrongful dismissal claim against the defendant during the temporary
layoff. The defendant argued that the plaintiff was not entitled to file
such a claim until after the expiration of the 60-day period referred to in s.
63(1) of the Alberta ESC. At trial, the court sided with the defendant, reasoning
I am of the view that s. 62 of the Employment Standards Code has created
a new right for employers in Alberta. The plain and express language of
s. 62 entitles an employer who wishes to maintain an employment relationship
to temporarily lay off the employee. The length of the temporary
layoff is subject to the terms contained in ss. 63 and 64. The effect
of s. 62 is to suspend or delay the use of a common-law right until the