BC Employment Standards


BC Employment Standards

Which statute applies to determine minimum requirements for notice or severance?

If you are an employer in B.C., for most occupations the applicable legislation is the British Columbia Employment Standards Act. If, however, you are a federally regulated employer, such as a bank, airport, railway, shipping and trucking company, the Canada Labour Code applies.

Are the notice and severance provisions in the Employment Standards Act all that an employer is required to give an employee when firing them without cause?

No. The common law often requires a longer notice period than is provided in the Employment Standards Act. The amount of notice an employer might be required to give at common law is “reasonable notice.” Reasonableness depends on several factors including the character and length of employment, the employee’s age, experience, training and qualifications, and the availability of similar employment.

If an employer has a written contract with their employee that deals with notice and/or severance, then the provisions in the contract will determine how much notice the employer is required to give the employee they fire without cause, so long as it is not less that what they would be required to give under the Employment Standards Act. Employers are not allowed to contract out of the minimum notice provisions set out in the Employment Standards Act. If the contractual provisions dealing with notice and severance are not worded properly, that entire section of the contract could be void, in which case the common law rules for calculating notice would apply.

I have just hired a new employee and I put them on probation for 3 months. What is the significance of the probationary period?

The probationary period is a defined time period (often 3 months, but it can be longer or shorter) established at the start of your new employee’s employment which is intended to give you sufficient time to determine that employee’s suitability for the job. If, during this period, you determine that the new employee is not suitable for the position, you may be able to terminate your employment without cause and without any obligation to give notice or severance, as long as there was a clear understanding that you could do this during the probation, and the assessment of the employee’s suitability is done on a fair and reasonable basis and was not done in bad faith or for an improper motive. In all cases, if a probation period lasts longer than 3 months and an employee is terminated without cause, you are still required to give them the minimum notice set out under the Employment Standards Act.

If a company lays off 50 employees or more, does it have any extra obligations to its former employees?

Under the Employment Standards Act, if 50 or more employees will be laid off within any 2 month period, the employer must provide a minimum of 8 weeks’ written notice to each employee who will be affected, as well as to any trade union who may be certified to represent the employees or recognized by the employer as the bargaining agent of any affected employees, and the Minister of Labour and Citizens’ Services. Written notice must be provided before the effective date of the first termination. Such notice is in addition to any notice, or pay in lieu of notice, that the employee is otherwise entitled to under the Employment Standards Act, or by contract, or pursuant to the common law.

What minimum standards does the Employment Standards Act set for notice or pay in lieu of notice of termination?

The Employment Standards Act states that if you terminate an employee without cause, you are required to give them either one week’s notice, or pay in lieu of notice (or a combination of both) for employment of between 3 and 12 months in duration. For periods of service in excess of 12 months, you must compensate your employee as follows:

  1. after 12 consecutive months of employment, you must give the employee 2 weeks’ written notice or an amount equal to 2 weeks’ wages, (or a combination of both); and
  2. after 3 years of consecutive of employment, you must give the employee 3 weeks’ notice and 1 additional week’s notice for each additional year of employment up to 8 weeks’ notice, or an amount equal to 3 weeks’ wages plus 1 additional week’s wages for each additional year of employment, to a maximum of 8 weeks’ wages (or a combination of both notice and wages).
Do directors or officers have any personal liability for severance pay?

Yes, under the Employment Standards Act, all directors and officers of a company, who hold those positions at the time that the employees are being laid off, are personally liable for up to two months of severance pay per employee, unless the company is in formal receivership or subject to statutory insolvency proceedings.

Is an employer required to provide notice and/or severance pay if the employer's business closes down and they lay everyone off?

Employers are required to provide the same notice and/or severance pay in lieu of notice if a business closes for any reason, just as they would be required to do if they terminated the employment without cause. At a minimum, employers must provide notice, or pay in lieu of notice, as set out in the Employment Standards Act. However, employers may be required to do more than the statutory minimum if there is a contract setting out longer periods, or if required by the common law.

Our payroll staff has inadvertently overpaid some of our employees. Can we simply deduct the overpayment from future pay to those employees?

The Employment Standards Act prohibits any deductions from wages unless authorized by law (tax, EI, CPP) or agreed to by the employee. This means that if the employee does not voluntarily agree to a re-payment plan via payroll deduction, the employer must pursue either a grievance through the employee’s union, or commence Court proceedings against the employee to recover the overpayment.

One of our employees has quit and he owes us money from a loan program we had to assist employees purchase a home computer. Can we deduct what that employee owes us from his final pay?

No, the Employment Standards Act prevents the employer from making this deduction unless the employee agreed to such a deduction in the employment agreement or some subsequent separate agreement. Without an express agreement to deduct amounts owed from final pay, an employer must pursue a claim in Court unless the ex-employee agrees to voluntarily repay the amount.

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