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BC Employment Standards Act

"Corporate Transactions and the Employment Standards Act: Don't Get Bitten!"

Jurisdiction: - British Columbia

"Corporate Transactions and the Employment Standards Act: Don't Get Bitten!" is the title of a paper written by Michelle Alman of the Legal Services Branch, BC Ministry of Attorney General, and Elani Kassaris, Blakes, Cassels & Graydon LLP.

The authors wrote the paper for the Employment Law Conference - 2008, which was held in April 2008 and is organized by Continuing Legal Education of BC.   

Employees not entitled to enforce Employment Standards Act rights in court

Jurisdiction: - British Columbia

In Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, the BC Court of Appeal ruled that employees are not entitled to enforce Employment Standards Act rights in court. Rather, they must enforce these statutory rights through the employment standards complaint process.

The appeal court's decision overturned the decision of Madam Justice Wedge at the trial level (2006 BCSC 1851).

New leave provisions to be added to BC Employment Standards Act for military reservists

Jurisdiction: - British Columbia

The BC government has introduced Bill 43 that will, among other things, amend the BC Employment Standards Act to provide job protection for reservists who temporarily leave their civilian employment in order to serve with the Canadian Forces.

According to the government's news release, there are about 2,700 reservists in BC.

"Exclusions, Variances and Averaging Agreements under the Employment Standards Act"

Jurisdiction: - British Columbia

Shanti P. Reda of Black Gropper & Co. in Vancouver presented a paper entitled "Exclusions, Variances and Averaging Agreements under the Employment Standards Act" (February 1, 2008), at a Lorman Educational Seminar. The paper deals with the following:

Part 1 of this paper discusses employees and other types of workers who are
partially or totally excluded from the protections provided by the British
Columbia Employment Standards Act
(the "Act") and its associated
Regulations. This includes: unionized employees, certain professionals,
independent contractors, federally-regulated employees and managers. Part 2 of
this paper discusses options available to employers and employees to voluntarily
modify certain provisions of the Act that would otherwise apply to the
employee(s), allowing for more flexibility in the workplace, including variances
and averaging agreements.

Can a "professional" have his/her notice entitlement limited to that in the BC Employment Standards Act?

Jurisdiction: - British Columbia
Sector: - Education

Mr. Wong, a chartered accountant, was hired by UBC in a newly created position of Controller, commencing on September 3, 2002.

The letter confirming his employment stated that the terms and conditions of his employment would be those found in two agreements that UBC had entered into with the Association of Administrative and Professional Staff. One of these agreements contained the following terms in relation to notice:

An employee terminated during the probationary period for reasons other than just cause shall receive notice or pay in lieu of notice in accordance with the provision of the Employment Standards Act.

UBC ended up not implementing Wong's position and thus his employment was terminated just under 7 months later. UBC took the position that, in accordance with the employment contract, it was required to provide him with only 1 week's pay. However, "out of courtesy", it had paid him 1 month's salary.  read more »

Compassionate Care Leave Regulation Enacted

Jurisdiction: - British Columbia

The Compassionate Care Leave Regulation under the BC Employment Standards Act came into effect on October 20, 2006 (OIC 738).

In accordance with the Regulation, an employee may now take this type of leave in relation to the following additional classes of "family members":  read more »

Compassionate Care Leave provisions added to BC Employment Standards Act

Jurisdiction: - British Columbia

A bill that will amend the BC Employment Standards Act (the "Act") to provide for Compassionate Care Leave just passed Third Reading.

Specifically, the amendments will entitle employees to take up to 8 weeks of unpaid leave to provide care or support to an immediate family member who is terminally ill and is at risk of death within the next 26 weeks.

Most other Canadian jurisdictions already offer a similar leave (Alberta and the NWT being the exceptions). Although employers will not be required to pay an employee who is absent on this leave, the employee may be eligible to collect employment insurance benefits.

Currently, the Act provides employees with 4 types of leaves, all of them unpaid:

  • Pregnancy Leave (17 weeks, in most cases);
  • Parental Leave (from 35 to 37 weeks - depending in the circumstances - in most cases);
  • Family Responsibility Leave (5 days); and
  • Bereavement Leave (3 days).

The Act also offers protections to employees who are called for jury duty.

HRSDC issues chart setting out employers' "Notice of CollectiveTermination" obligations across Canada

HRSDC has prepared a very useful chart setting out an employer's Notice of Collective Termination requirements under employment standards legislation across Canada. The chart can be found here.

The chart is dated October 20, 2005.

Deductions From An Employee's Pay Cheque

Jurisdiction: - British Columbia
Sector: - Health Care

Published in Lawson Lundell LPP Labour and Employment Newsletter (Summer 2005)

The BC Court of Appeal recently confirmed that, pursuant to the BC Employment Standards Act, an employer is prohibited from making unilateral withholdings/deductions from an employee's pay cheque for any purpose, including to recoup a previous overpayment of wages to the employee.

An employer is, however, permitted to make withholdings/deductions from an employee's pay cheque in certain circumstances, including to recover an overpayment of wages, where: (1) the employee consents to the specific withholding/deduction; or (2) a statute or a collective agreement expressly authorizes the employer's action.

If the employer does not have consent or authorization by way of a statute or a collective agreement, it must recover overpayments (or other monies owed) by pursuing a grievance (in a unionized workplace) or bringing a claim in court (in a non unionized workplace).  read more »

Maternity policy that would have been operative during working notice period relied on to reduce damages award

In Wilson v. UBS Securities Canada Inc., 2005 BCSC 563, a 37 year old trader with 14.5 years of service was awarded 12 months notice.

However, because the employee was pregnant when dismissed, the court ruled that the company's paid maternity leave policy must be considered when assessing the employee's damages. Pursuant to the maternity leave policy, the employee would have earned less income than if she had continued working. In this regard, the employee's damages were reduced.