THE ADVOCATE 375
VOL. 76 PART 3 MAY 2018
Third, it would be good practice to include the following information in
the employer’s notice of temporary layoff: (1) the effective date of the temporary
layoff; (2) sound business reasons for the layoff; (3) the applicable
provisions from the employment standards legislation; and (4) any direction
to fact sheets on temporary layoff, if available from the relevant
employment standards branch or board in the province. Though this recommendation
is mostly applicable to the Alberta employment law regime, it is
also advisable for employers in British Columbia to adhere to these recommendations,
as this will allow the employer to demonstrate that they have
fully and fairly informed the employee of their rights and obligations during
the period of temporary layoff. It may also be helpful to the employer
in keeping a record of the temporary layoff period and period for recall.
Fourth, if the employment standards legislation requires that the
employee continue to receive substantial payments, benefits or supplementary
unemployment benefits during the temporary layoff period,
employers should continue to provide such contributions. Certainly in
Alberta, the payment of wages or benefits, pursuant to terms of the employment
standards legislation, will allow the employer to extend the initial
temporary layoff timeframe by a further period. The B.C. ESA, however,
does not provide for such benefits to be paid and the extension of temporary
layoff in B.C. requires the employer and the employee to make a joint
written application to vary the time period specified in the definition of
“temporary layoff”.
Guidance for Employees
Understandably, temporary layoff is more beneficial to the employer. As
can be seen in the legislation in both provinces considered in this article,
employers have certain, albeit limited, rights and obligations connected to
temporary layoff. Therefore, much of the emphasis in this area of employment
law is focused on the employer. However, there are pitfalls that the
employee should be aware of in order not to diminish their own rights.
First, employees should always read the employment contract and the
workplace policies to instruct themselves on whether their employer has a
contractual right to lay them off. In Alberta, it remains to be seen whether
an affirmative right to layoff in the Alberta ESC obviates the need for an
employer to preserve in the written employment contract its ability to
impose temporary layoffs.
Second, where the contract permits the employer to lay off the employee
temporarily, the employee should make sure to be aware of the maximum
time period during which a layoff can last under the employment standards
legislation, and what obligations the employer has to the employee during