August 24, 2018
Author: Lawrence N. Robinson
Organization: ALEXANDER, HOLBURN, BEAUDIN & LANG LLP
I. INTRODUCTION
The purpose of this paper is to discuss, and describe employees’ minimum entitlements to leave pursuant to the Employment Standards Act, R.S.B.C. 1996, chapter 113 (the “Act”). Unless an employee or class of employees is expressly excluded, the Act applies to most employees in British Columbia and prescribes minimum standards with which all employers are statutorily obliged to comply. Excluded employees tend to be those persons who are members of self-governing bodies, such as accountants, lawyers, and medical practitioners. A complete list of excluded occupations is set out in section 31 of the Employment Standards Regulations, B.C. Reg. 196/95. This paper does not address the law as it pertains to these excluded classes of employees.
It is important to emphasise that the Act creates a floor, and not a ceiling on employees’ rights and entitlements. It is possible for the parties to an employment contract to agree to longer leave periods than those which are mandated in the Act. These are often contained in employer handbooks or policies. An employer runs afoul of the legislation when they fail to adhere to the statutory minimums.
The purposes of the Act are set out in section 2 and include:
(a) ensuring that employees in British Columbia receive at least basic standards of compensation and conditions of employment; and
(b) assisting employees to meet work and family responsibilities. Section 4 of the Act provides:
The requirements of this Act and the regulations are minimum requirements and an agreement to waive any of those requirements … has no effect.
Therefore, the parties to an employment contract cannot purport to exempt themselves from the Act. To the extent that the terms of an employment contract fail to comply with the Act or are otherwise silent, those terms will be supplanted by the equivalent statutory provisions.
Below, we set out the various types of leave to which all employees are entitled pursuant to the Act.1 Thereafter, we discuss the duties of an employer when an employee returns to work following a leave. We then discuss the effect of having an employee’s employment deemed continuous for the duration of her/his leave, and we conclude with a discussion of the possible sanctions for non-compliance by an employer.
II. THE REQUIREMENTS OF EACH OF THE STATUTORY LEAVE PROVISIONS OF THE EMPLOYMENT STANDARDS ACT
The sections of the Act dealing with leave can be found in Part 6. Below, we deal with each of the different types of leave as they are found in the Act.
1. Pregnancy Leave (Section 50)
a) Who Is Eligible?
It should be noted that the Act distinguishes Pregnancy Leave from “Parental Leave”, which is discussed below. Moreover, the Act no longer refers to “maternity leave”. Whereas Parental Leave is available to either the mother or father of a child (or an adoptive parent of a child), only pregnant persons are eligible for Pregnancy Leave.
The Act does not require the expectant mother to give birth to be eligible for Pregnancy Leave. A woman who voluntarily terminates her pregnancy, or miscarries is eligible. Likewise, a woman who elects to give her child up for adoption is eligible for Pregnancy Leave.
Eligibility does not depend on length of employment. A person who has been employed for two weeks is no less eligible than a person with twenty years’ service. Finally, the entitlement to Employment Insurance benefits under federal legislation is separate from the obligation under the Act to provide time off from work.
b) How Long is Pregnancy Leave?
The Act provides for Pregnancy Leave of seventeen consecutive weeks. Therefore, no employer can insist on Pregnancy Leave of a shorter duration, and no employer can insist that the Pregnancy Leave be taken in intervals (i.e. in one week increments, for example). However, Pregnancy Leave can be of a shorter duration where the employee so requests. In cases where, following the birth, or termination of the pregnancy, complications develop and the employee is unable to return to work at the end of the Pregnancy Leave, she is eligible for an additional six consecutive weeks’ leave.
c) When Can Pregnancy Leave Be Taken?
Pregnancy Leave cannot be commenced earlier than eleven weeks before the expected birth date of the child, and it cannot be commenced later than the actual birth date of the child. It cannot end earlier than six weeks after the actual birth date of the child (unless the employee specifically requests a shorter period of leave), and cannot extend beyond seventeen weeks after the actual birth date of the child.
The Act recognizes certain exceptions to these time frames to accommodate employees who give birth early or whose pregnancy is terminated short of full term. For example, if an employee requests Pregnancy Leave to commence on her expected due date, and the birth is premature, then the leave begins the day following the last day on which the employee worked. This applies even if the birth occurs more than eleven weeks before the expected due date. The duration of the leave is unchanged, and expires seventeen weeks after commencement.
d) How is a Request for Pregnancy Leave Made?
Although the Act provides that a request for maternity leave must be made “in writing”, the Employment Standards Tribunal has held that a verbal request is no less valid. In Capable Enterprises Ltd. [1998] B.C.E.S.T.D. No. 372, the Tribunal noted that although the employee had not requested leave in writing, her employer was aware of the fact that she was pregnant, and was aware of her intention to commence leave on a specified date. In these circumstances, Pregnancy Leave, which was referred to as an “important benefit” could not be denied by an employer because of non-compliance with a legislative formality. Employers may require an employee requesting Pregnancy Leave to provide a medical certificate stating the actual or expected due date of the child, or showing the date on which the employee’s pregnancy was terminated. As well, when an employee requests an additional six weeks to deal with complications associated with the pregnancy (or termination of the pregnancy) as discussed above, the employer may require a medical certificate confirming the complications and justifying the extension.
2. Parental Leave (Section 51)
a) Who is Eligible?
Unlike Pregnancy Leave which is available only to pregnant employees, Parental Leave can be taken by: the birth mother, the birth father, and an adopting parent of a child. Foster parents are not eligible for Parental Leave under the Act. Eligibility does not depend on an employee’s length of service.
b) How Long is Parental Leave?
The duration of Parental Leave depends on the circumstances of the employee. Where Parental Leave is requested by a birth mother, who has taken Pregnancy Leave pursuant to section 50 of the Act, she is eligible for up to thirty-five consecutive weeks’ Parental Leave. However, birth fathers and an adoptive parents, neither of whom are eligible for Pregnancy Leave are entitled to up to thirty-seven consecutive weeks’ Parental Leave.
The Act allows for the extension of Parental Leave in cases where the child has a physical, psychological or emotional condition requiring an additional period of parental care. In these situations, the employee may request, and is entitled to, and additional five consecutive weeks’ leave.
The Act limits an employee’s combined Pregnancy and Parental Leave to fifty-two weeks, plus the additional six weeks to deal with complications associated with the pregnancy and an additional five weeks to deal a condition of the child, where appropriate.
c) When Can Parental Leave Be Taken?
In the context of birth mothers, Parental Leave will commence immediately following the expiry of her Pregnancy Leave, and will run for an additional thirty-five weeks. The employer and employee may agree to vary this, and allow for a lapse between the expiry of Pregnancy Leave and Parental Leave.
For birth mothers who have not availed themselves of Pregnancy Leave, and for birth fathers and adoptive parents, Parental Leave must be taken after the birth or adoption of the child, and within fifty-two weeks after that event. One year after the birth or adoption of the child, an employee relinquishes her/his statutory rights to unused Parental Leave.
d) How is a Request for Parental Leave Made?
The Act requires an employee requesting Parental Leave to do so in writing, and requires that such a request be delivered to the employer at least four weeks before the commencement of the leave. However, where an employee fails to make a written request, and the employer is made aware of the intention to take leave, this will probably be sufficient to allow the employee to exercise his/her statutory rights, based on the Capable Enterprises decision.
The employer may require an employee who is requesting leave to provide a medical certificate, or other evidence which supports their eligibility for parental leave. There is no bar to both parents taking leave for the time allowed under the Act. The entitlement to benefits under the Employment Insurance Act may be affected.
3. Family Responsibility Leave (Section 52)
a) Who is Eligible?
All employees are eligible for Family Responsibility Leave when such leave is required to meet an employee’s responsibilities related to:
(a) the care, health or education of a child in the employee's care, or
(b) the care or health of any other member of the employee's immediate family.
The Act defines a member of an employee’s “immediate family” as: … the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee's family;
This provision applies equally to foster parents and biological parents. An employee is entitled to Family Responsibility Leave as a matter of right. The Employment Standards Tribunal recognized this in Re Cody, [1999] B.C.E.S.T.D. No. 55 and held that an employer has no discretion to deny an employee’s leave to care for a member of her/his family.
b) How Long is Family Responsibility Leave?
Whereas Pregnancy Leave and Parental Leave allow for consecutive weeks’ leave, Family Responsibility Leave consists of an annual entitlement of five days. These five days can be allocated through a year as needed by the employee to care for her/his family. “Unused” Family Responsibility Leave cannot be carried forward to increase the amount of leave in subsequent years.
c) When Can Family Responsibility Leave Be Taken?
Family Responsibility Leave is meant to be taken “as needed” to address situations in an employee’s family. These situations will only occasionally be foreseeable.
d) How is Request For Family Responsibility Leave Made?
The Act does not require an employee to give notice of a request for Family Responsibility Leave, nor does it require an employee to obtain the employer’s permission before availing themselves of this right. This conclusion was reached by the Tribunal in Re Dale, BCEST #D495/97.
If an employee requests leave for the purposes referred to in section 52 of the Act, and the employer refuses this request, the employer cannot dismiss or otherwise discipline the employee if the employee ignores the employer’s refusal and takes the leave. In these circumstances, an employee is simply exercising his/her statutory rights.
The case of Re Phillips, [2000] B.C.E.S.T.D. No. 302, holds that an employer has a right to refuse an employee’s request for Family Responsibility Leave where the employee fails to provide sufficient details of the purposes for which the leave is required. If requested by the employer, the employee is required, at a minimum, to disclose: the identity of the person for whom they are required to provide care; the relationship of the person to the employee; and the reasons for which leave is required. The employee need not go so far as to specify the health issue of the immediate family member.
4. Compassionate Care Leave (Section 52.1)
a) Who is Eligible?
All employees are entitled to Compassionate Care Leave in circumstances where such leave is required to provide care or support to a family member faces an imminent risk of death. The provisions dealing with Compassionate Care Leave are intended to assist employees who are faced with the responsibility and stresses associated with a terminally ill family member. To be eligible, an employee must obtain and be able to provide a certificate from a qualified medical practitioner stating that the employee’s family member has a serious medical condition with a significant risk of death within 26 weeks.
b) How Long is Compassionate Care Leave?
The Act provides for Compassionate Care leave of up to 8 weeks. The leave need not be taken as a consecutive 8 week period, but must be taken in increments of at least 1 week at a time. An employee’s entitlement to Compassionate Care Leave can be extended beyond 8 weeks in circumstances where the critically ill family member does not die within 26 weeks of the commencement of the leave. The period of Compassionate Care Leave ends upon the death of the family member to whom the leave relates.
c) When Can Compassionate Care Leave Be Taken?
Compassionate Care Leave can be taken when a qualified medical practitioner provides a certificate stating that a member of the employee’s family has a significant risk of death within 26 weeks. In other words, the death of the employee’s family member must be imminent.
d) How is a Request for Parental Leave Made?
The Act requires an employee requesting Compassionate Care Leave to provide the employer with a copy of the medical certificate referred to above “as soon as practicable”. The Act is silent with respect to whether the leave must be requested in writing, and as such, it is probable that an oral request would be valid.
5. Bereavement Leave (Section 53)
a) Who is Eligible?
All employees, irrespective of length of service, and whether or not the employer agrees, is entitled to Bereavement Leave in the event of the death of a member of an employee’s “immediate family”.
b) How Long is Bereavement Leave?
At a minimum, the Act requires employers to grant leave of three days in the event of the death of a member of an employee’s immediate family. The Act does not require that these days be taken consecutively, and presumably, an employee would be entitled to take Bereavement Leave in shorter intervals, up to three days cumulatively.
c) When Can Bereavement Leave Be Taken?
The Act provides that Bereavement Leave can be taken “on the death of a member of the employee’s immediate family”. We are not aware of this provision ever having been considered judicially, but it seems clear that an employee is not entitled to statutory Bereavement Leave unless and until the death actually occurs, particularly in light of the recent addition of the Compassionate Care provisions. There is no limit of the number of times per year that the leave may be taken.
d) How is a Request for Bereavement Leave Made?
The Act does not specify the procedure for requesting Bereavement Leave, but if an employee’s right to such leave were challenged by an employer, the employee would likely be required to furnish some evidence of the death of an immediate family member. Once this is done, the employer has no discretion to deny the leave sought.
5. Jury Duty (Section 55)
The Act provides that an employee is entitled to attend Court as a juror, but it does not describe what that entails, except to say that the employee is entitled to the same rights and protections as if they were on “leave”.
We note however, that with respect to the other types of leave discussed above, the Act specifies that an employee’s entitlement is to unpaid leave. There is no such qualification with respect to leave for jury duty, but since an employee is entitled to leave for this purpose, and is to be treated “as if that employee were on leave”, and since all statutory leave is expressly unpaid leave, then this would apply to jury duty as well. The Jury Act obligates individuals to serve as jurors and provides for payment of daily fees. Exemption may be sought from serving where it would cause “serious hardship or loss”.
III. THE DUTIES OF AN EMPLOYER WHEN AN EMPLOYEE RETURNS TO WORK FOLLOWING LEAVE (Section 54)
In addition to requiring employers to give an employee the leave to which they are entitled, the Act imposes further obligations on employers while an employee is on leave, and upon the employee’s return from leave.
Specifically, an employer must not:
(a) terminate the employee’s employment, or
(b) change a term or condition of the employee’s employment because of an employee’s pregnancy or because they are on leave, without the consent of the employee.
Upon the employee’s return from leave, the employer must place the employee into the same position the employee held prior to the commencement of leave, or where that is not possible, into a “comparable position”. There will be circumstances where, during an employee’s leave, the employer’s operations are suspended, so that it will be impossible to return the employee to their former position. The Act deals with this by requiring employers to return the employee to their former position (or a “comparable position”) as soon as operations are resumed.
1. Termination of Employment During Leave (Section 54(2)(a))
The Act does not prohibit the termination of employees who are on leave. Rather, it prohibits termination because an employee has availed themselves of their entitlement to statutory leave.
That said, there are special considerations when terminating an employee who is on leave. First, when an employer seeks to terminate an employee who is on leave it will be presumed that the leave was the reason for the termination. Section 126(4)(b) of the Act provides:
The burden is on the employer to prove … that an employee’s pregnancy, a leave allowance by this Act or court attendance as a juror is not the reason for terminating the employment … Therefore, when an employee is dismissed while on leave, the employer is required to adduce evidence proving that the decision to terminate was unrelated to the fact of the employee’s leave. This is contrary to the usual standard which requires the employee to prove contraventions of the Act by the employer. Because of the foregoing provision, if an employee can establish that he/she was dismissed while on leave, the employer will have the onus of proving that the dismissal was for reasons unrelated to the leave.
If an employer dismisses an employee because she is pregnant, the employer will not only have contravened the Act, but will also likely violate the Human Rights Code. Similarly, where an employee is terminated because they take Parental Leave, this would likely constitute a valid complaint under the Human Rights Code for discrimination based on “family status” which is also prohibited. Moreover, where discrimination is a factor in an employee’s termination, the employee may be seen to have acted in “bad faith” which could entitle the employee to additional damages in a subsequent wrongful dismissal action. A comprehensive discussion of these issues is beyond the scope of this paper, but employers need to be aware of the possible repercussions.
Second, whereas the Act allows employers to terminate employment by providing notice, or providing pay in lieu of notice – the length of which is based on the employee’s length of service and is set out in the Act (see: section 63), the option of “working notice” is not available to employers in the cases of employees who are on leave. That is, an employer cannot discharge its statutory termination obligations to an employee who is on leave by giving notice. Section 67(1)(a) provides:
A notice given to an employee … has no effect if … the notice period coincides with a period during which the employee is on … leave … Aimola v. Cooper Market Ltd. (1989), 27 C.C.E.L. 248 (B.C.S.C.), concerns a situation where an employee was given notice of termination where the notice period would run concurrent with the employee’s leave. The Court held that notice given in these circumstances was ineffective to discharge the employer’s statutory obligations, and that to be effective, an employer must postpone the running of the notice period until the employee returns from leave. At that time, the employer must allow the employee to work for the full duration of the notice period, or alternatively, the employee must be given pay in lieu of notice.
2. Change in a Term or Condition of Employment (Section 54(2)(b))
As with termination of employment, an employer is not prohibited from implementing changes to the terms and conditions of an employee’s employment while that employee is on leave. However, where a change is implemented because of or in response to the employee’s leave, (in whole or in part) the employer will have contravened the Act. The law holds that where an employer introduces changes which result in a fundamental modification of the employee’s duties, the proper test is to consider what would have happened had the employee not been on leave. That is, if the changes were unrelated to the employee’s leave and would have been implemented in any event, the employer will not have contravened the Act. However, as with an employee’s dismissal, there is a statutory presumption in the Act that any change to the terms and conditions of employment while an employee is on leave, was due to or caused by the leave (See: section 126(4)).
In Capable Enterprises Ltd. [1998] B.C.E.S.T.D. No. 29, an employee had availed herself of Pregnancy Leave and Parental Leave, and when she returned to her employment as a day care instructor, her duties were significantly modified. Notably, she had been assigned different duties, in a different classroom at a significantly lower salary. The employer argued that the employee’s pregnancy had nothing to do with these changes and that they would have been implemented in any event. The Tribunal considered and rejected this argument, holding:
Even if I accepted this on its face, the simple fact is, that had (the employee) not … become pregnant, (the employer) would not have been able to take the opportunity to recruit, hire and evaluate a replacement … (The employer) violated the spirit and the intent of the Act by taking advantage of (the) pregnancy and leave … to change (the employee’s) working conditions … even if the employment was not terminated the working conditions were changed without the (her) written consent, thereby violating the Act.
Although the foregoing refers to “written consent”, the Act does not specifically require an employee’s consent to a change in terms and conditions of employment to be in writing. Therefore, an employee who orally consents to returning to modified duties following leave cannot thereafter complain and seek a remedy under the Act. This is supported by the decision of the Tribunal in Re 583667 BC Ltd., [2001] B.C.E.S.T.D. No. 460. However, employers are advised to obtain a clear, unequivocal statement from an employee who will not be returning from leave, or who agrees to waive the right to be returned to their former position. This is the advise of the Tribunal in Champers Enterprises Ltd. [2000] B.C.E.S.T.D. No. 445, which concerned a situation where an employee was not given the opportunity to return to her former position following leave. It was stated:
In these circumstances, an employer should provide a clear statement from an employee that she does not want to return to her former position after a maternity leave would be necessary to demonstrate that the employer has fulfilled its duty to her.
3. Obligation to Return the Employee to the Same or a “Comparable” Position Upon Returning from Leave (Section 54(3))
The obligations in this context are solely those of the employer. The employee who returns from leave is under no obligation to arrange for the resumption of their duties. In Afaga Beauty Service Ltd., [1997] B.C.E.S.T.D., an employee had been on Parental Leave, and had advised her employer of a planned return to work in late August, 1996. She called her employer on several occasions to arrange for her return, but she was not able to get in touch with him, and when the employee did not return as planned, he treated her as having abandoned her employment. The Tribunal held:
A careful reading of the Act clearly indicates that the employer must take the initiative in placing an employee in a former position at the conclusion of pregnancy leave. In this case … each seemed to be waiting for the other to take the initiative in arranging for (the employee’s) return to work. There was no evidence of bad faith on (the employer’s) part, but it was his obligation to offer (the employee) a position on the same terms as she had prior to February 3, 1996. He seemed to think that (she) was obligated to arrange for the resumption of her work, which is contrary to the requirements of the law.
The employer’s obligation to place the employee in the same or a comparable position is immediate upon the employee’s return from leave. This issue arose in Re Ogurek, [2000] B.C.E.S.T.D. No. 355 which involved an employee who was planning to return to work twenty-six weeks after having given birth. She advised her employer of this, but he refused to allow her to return to her former position for an additional month following the end of her leave. The Tribunal noted that the Act imposes an obligation to place an employee into their former position “as soon as the leave ends”, and held that an employer has no discretion to unilaterally delay this obligation.
However, it should be noted that an employer is under no obligation to maintain an employee’s position while an employee is on leave. Employees have no absolute right to return to their former position before the expiration of their leave. Re Flint [2000] B.C.E.S.T.D. No. 458 concerned a situation where the employee (“Flint”) has taken Pregnancy / Parental Leave. She requested, and was granted leave for a period of approximately eight months. During her leave, the employer (“CSI”) experienced a significant reduction in business and was forced to curtail operations, resulting in the elimination of three positions. Flint’s position was one of those eliminated. Two months before the planned expiration of her leave, Flint contacted CSI and asked if she could return. She was advised that her position no longer existed, but she was offered another position, which CSI maintained was “comparable”. The Tribunal held:
… the obligation set out in section 54(3) does not take effect until an employee’s pregnancy leave has ended. As Flint’s leave had not ended at the time CSI offered her an alternative position, there was no duty on CSI to comply with this section.
The Tribunal also went on to consider whether CSI, in changing the terms and conditions of Flint’s employment, had contravened section 54(2)(b). The Tribunal held:
… it is unreasonable to impose a duty on an employer to place
an employee, at the end of several months pregnancy leave, in
the same position, or a comparable position, if the business of
the employer has undergone significant changes for reasons
unrelated to the employee’s pregnancy. It would otherwise
place an employee who has taken pregnancy or parental leave
in a better position than another employee who may have
continued to work through that period, and had been offered
other work, or laid off, because of that significant change.
Therefore, as long as the change is bona fide, and not motivated by the employee’s leave, in whole or in part, the employer will not be found to have contravened the Act2.
IV. THE EFFECT OF HAVING EMPLOYMENT DEEMED CONTINUOUS DURING AN EMPLOYEE’S LEAVE (SECTION 56)
Section 56 of the Act provides that the services of an employee who is on leave is deemed to be continuous for the following purposes:
(a) calculating annual vacation entitlement and entitlement under sections 63 and 64, and
(b) any pension, medical or other plan beneficial to the employee.
In addition section 56 requires employers to continue to fund an employee’s medical, pension or other beneficial fund for the full duration of an employee’s statutory leave, and employees are further entitled to all increases and benefits to which they would have been entitled had they not been on leave which accrue during the leave period. This will include sharing premium contributions where that occurred prior to the leave.
The only exception to this is where an employee’s leave exceeds the duration stated in the Act, without the consent of the employer.
1. Annual Vacation (Section 56(1)(a))
Every employee to whom the Act applies is entitled to an annual vacation. At a minimum, employees are entitled to two weeks’ vacation after completing twelve consecutive months of employment, increasing to three weeks’ vacation after five consecutive years of employment (see: section 57).
The Act does not entitle employees to any vacation until after having completed twelve consecutive months of employment. Therefore, during the first year of employment, an employee has no statutory right to an annual vacation. However, if during the first year of employment, an employee becomes pregnant, and avails herself of Pregnancy Leave followed by a period of Parental Leave, upon returning her length of service is deemed to have been continuous for the duration of the leave, and thus, she is entitled to two weeks’ vacation. The same would apply to an employee in similar circumstances whose leave commences during the fourth year of employment, in which case upon returning, she would be entitled to three weeks’ vacation. Vacation pay is calculated separately based on the prior year’s total wages which will be lower where the employee has been on leave.
2. Entitlement Under Section 63 and 64 (Section 56(1)(a))
Sections 63 and 64 of the Act address an employer’s obligations in terminating employment. Section 63 deals with the termination of an individual employee, and section 64 deals with “group terminations” (i.e. terminations of more than fifty employees within a two month period). In either case, as discussed above, the Act requires employers to provide employees with notice of termination, or alternatively, pay in lieu of notice, unless the termination is for just cause.
The length of notice under section 63 depends entirely on the length of the employee’s service. An employee who has been employed for less than three months is not entitled to any notice under the Act. Those employed more than three months, but less than twelve months are entitled to one week. After twelve months’ service an employee is entitled to two weeks’ notice, increasing to three weeks’ after three years of employment, and an additional week’s notice thereafter to a maximum of eight weeks.
The notice periods are longer in the case of employees who are being terminated as part of a group. In these situations, the required notice ranges from a minimum of eight weeks’ to a maximum of sixteen weeks’ notice. This requirement is in addition to the employer’s obligation to provide notice pursuant to section 63.
Therefore, there will be situations where an employee is on leave, or serving jury duty, where the anniversary of their date of hire passes in the interim. On the event of this happening, the employer’s obligation to provide notice or pay in lieu thereof increases.
3. Employers’ Obligations to Fund Benefits Plans for the Duration of Leave (Section 56(2))
There are several types of coverage which may be provided to employees as employment benefits. Most common are: basic medical coverage, extended health, dental coverage, and life and disability insurance. To the extent that these are funded by the employer, funding must continue unabated for the duration of an employee’s leave. In cases where the employee is responsible for partially funding an employment benefit, an employer is only obligated to continue to make its share of contributions if the employer pays their share. If the plan is completely employer funded, the employer has no discretion to suspend or cancel funding while the employee is on leave.
4. Increases in Wages and Benefits During Leave (Section 56(3))
If an employee’s contract includes a term entitling them to annual wage increases, then notwithstanding that the employee is on leave on the date of the contract’s anniversary, the employee will be entitled to the wage increase upon returning. An employer who fails to recognize the time of leave for establishing an employee’s wage increase will contravene the Act.
The same is true of benefits. So for example, if an employee agrees to a “waiting period” before becoming eligible to participate in certain plans, time spent on leave must be considered in establishing eligibility.
V. SANCTIONS FOR NON-COMPLIANCE WITH THE LEAVE PROVISIONS OF THE ACT
An employee who perceives that their employer has violated the Act is entitled to complain to the Employment Standards Branch, and if necessary, where the parties are not able to resolve the complaint, the Branch will adjudicate the complaint. If the employer is found to have violated the Act, it will be required to pay a mandatory monetary penalty, in addition to any compensation owed to the employee. Time limits for complaint will be 6 months from termination.
We have listed some of the types of sanctions which may be levied for non-compliance with the Act. However, we point out that the following is not an exhaustive list of possible sanctions.
1. Monetary Penalties (Section 98 and Section 29 of the Employment Standard Regulation)
Section 98 of the Act empowers the Director of Employment Standards (or any person to whom the Director’s authority is delegated) to impose monetary penalties on employers who contravene the Act. The amount of the monetary penalty is prescribed by section 29 of the
Employment Standard Regulation:
(a) first violation $500
(b) violation of the same provision of the Act within three years of the first violation $2500
(c) violation of the same provision of the Act within three years of the second violation $10,000
It should be noted that these penalties are mandatory, and are not subject to being waived. Moreover, where the employee is a corporation, section 98 (2) of the Act provides that:
… an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the contravention is also liable to the penalty.
2. Lien for Unpaid Wages (Section 87)
If the Director finds that the employee is owed a sum of money as unpaid wages, this debt constitutes a lien on the employee’s property. This lien takes effect from the date on which the wages were earned, and it takes priority over all other claims to an employer’s property except a prior registered mortgage or debenture against the employer’s land.
3. Interest on Unpaid Wages (Section 88)
If an employer is found to be liable to pay an employee an amount for unpaid wages, there will be an additional amount representing interest. The interest rate is adjusted quarterly in accordance with the prime rate Provincial Government’s banker.
4. Demands on Third Parties (Section 89)
Just as a party who obtains a court judgement can take steps to garnish the Defendant’s creditors, so too can the Director of Employment Standards use such steps to recover money owing by an employer under the Act. If, for example, an employer is determined to owe money for a violation of the Act, the Director may demand payment from the employer’s debtors requiring them to pay the Director instead of the employer. Such payment constitutes satisfaction of the debt to the employer. If the third party debtor does not comply with the demand of the Director, the Director is empowered to collect directly against the third party.
5. Court Judgments (Section 91)
If the Director makes a determination, or if the employer and employee enter into a formal settlement, or of the Tribunal orders an employer to pay money, this determination/settlement/order can be filed in the Supreme Court of British Columbia, and may be enforced as though it were an Order of the Court.
6. Seizure of Assets (Section 92)
The Act allows for the seizure of an employer’s assets to an extent required to satisfy an employer’s obligation to pay money owing under the Act. Where the employer is an individual, this includes personal assets, and is not limited to assets used in the employer’s business.
7. Liability of Corporate Officers (Section 96)
The Act provides that, subject to certain exceptions, a person who was a corporate officer at the time wages should have been but were not paid is personally liable for up to two months wages in respect of each employee.
8. Publication of Violator’s Names (Section 101)
If an employer violates the Act, the Director has discretion to compile and retain information about the violation, and may publish that information notwithstanding Provincial protection of privacy legislation.
VI. CONCLUSION
The statutory leave provisions of the Employment Standards Act provide entitlements to all employees. The most significant leave is the right to pregnancy and parental leave. An employer must ensure that they comply with those obligations or face a statutory complaint process and possible sanctions.
Many employers merely rely upon the Act while others expressly incorporate the statutory provisions into handbooks or policies. Some employers offer additional benefits including salary continuation during jury duty. Employers will want to recognize that the statutory provisions are the minimum entitlements and may be added to by express policies.
1 We recognize that certain employees are excluded from the Act as discussed above, however, for the purposes of this paper, we have disregarded those persons to whom the Act does not apply.
2 However, the employer may have breached an express or implied term of the employment contract, and the employee may have a remedy at common law for “constructive dismissal” – a complete discussion of which is beyond the scope of this paper.