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Staff Who Are Provided and Refuse Various Employment with Their Employer Might Not Be Entitled to Statutory Termination Pay

Usually talking, when an worker is dismissed with out trigger, they’re entitled to note or pay in lieu of discover as set out within the British Columbia Employment Requirements Act (“ESA”). Nonetheless, there are particular exceptions to this rule. One such exception is the place the worker is obtainable and refuses cheap various employment by their employer.

Legislative Framework

Pursuant to part 63 of the ESA, after three consecutive months of employment, an worker turns into entitled to note of termination or pay in lieu of discover primarily based on their size of employment.

Nonetheless, part 65 of the ESA units out sure exceptions to this basic rule, and part 65(1)(f) states that part 63 (particular person termination pay) and part 64 (group termination pay) don’t apply to an worker who has been supplied and has refused cheap various employment by the employer.

Employment requirements determination makers have held that “the employer” means:

  1. the worker’s present employer;
  2. an related employer;[i] or
  3. a successor employer.[ii]

The check underneath s. 65(1)(f) to find out if a proposal is affordable is the “cheap particular person check.” That is an “goal check, that’s, what a fairly officious bystander would contemplate as cheap, not what the worker believes is affordable.”[iii] The onus of displaying that a proposal is affordable is on the celebration making the supply (i.e. the employer).[iv]

In making use of the check and figuring out what cheap various employment is, the next non-exhaustive listing of things could also be thought-about:

  1. Whether or not there’s a commonplace follow within the enterprise or business during which the worker is working: For instance, if it is not uncommon place for workers to work at completely different areas, then providing an worker a job at one other location could possibly be cheap if the job is identical or comparable.
  2. The character of the job supplied in comparison with the one at the moment carried out: If the job supplied entails a very completely different sort of labor that the worker doesn’t need to carry out (even when the employer supplies coaching), or the job requires expertise or {qualifications} the worker doesn’t have, then the supply is probably going not going to be cheap.
  3. Any specific or implied understandings or agreements: This might embrace any agreements made through the hiring course of, and the phrases of the worker’s Employment Settlement.
  4. Whether or not the wages, advantages, working circumstances and safety of employment are comparable: If the job supplied is at a decrease wage or would represent a demotion or drop in standing, then the supply is probably going not going to be cheap.
  5. Geographic proximity or prices of relocation: If the supply would require a major commute, it might not be cheap.
  6. Any goal private circumstances which may function in opposition to accepting the supply: What could also be cheap for one worker, might not be for one more as a consequence of their private circumstances. Such circumstances might embrace an worker’s childcare obligations or their capability to journey to a brand new location or work completely different hours.[v]

An worker who refuses a proposal of other employment might not be entitled to termination pay underneath the ESA, if, after making use of the above elements, the supply is deemed to be cheap.  

Instance One: Supply Possible Cheap

ABC Ltd. operates a restaurant and bakery. Sally is the top baker and has labored for ABC Ltd. for 3 years. ABC Ltd. is being bought by 123 Ltd. Sally is obtainable a job as head baker with 123 Ltd. on the identical location that she at the moment works and on the identical phrases and circumstances as her present employment. Sally declines the supply.

Within the context of the acquisition and sale of a enterprise, “the employer” contains the purchaser. As such, the supply of other employment is probably going cheap as Sally was basically supplied precisely the identical job with 123 Ltd. as she already has with ABC Ltd. Subsequently, Sally would seemingly not be entitled to termination pay.

Instance Two: Supply Possible Not Cheap

An employer has two areas in Vancouver that are a ten minute stroll from one another. The employer is closing one of many areas and has supplied Sandy, the Supervisor of the closing location, a job because the Assistant Supervisor on the different location. Sandy has labored for her present employer for 10 years and at the moment earns $30/hr and experiences to the proprietor. The hourly price for the Assistant Supervisor place is $25/hr and Sandy must report back to Bob (the Supervisor of the opposite location). Sandy declines the supply.

The supply of other employment is probably going not cheap because it quantities to a demotion and would require Sandy to take a pay lower. Subsequently, Sandy would seemingly be entitled to termination pay primarily based on her size of employment.

Take Away

Whereas an employer won’t all the time be in a positon to supply an worker another positon as an alternative of dismissing them (e.g. if there are efficiency points or monetary constraints), if there are different positions that could possibly be supplied to an worker previous to dismissing them, it’s all the time value contemplating doing so. Nonetheless, employers ought to first consider the supply to find out whether or not it’s objectively cheap within the circumstances.

If in case you have any questions on this matter, or about labour and employment issues usually, please contact a member of our Labour, Employment, and Human Rights Group.

[i] As outlined in part 95 of the ESA.

[ii] As outlined in part 97 of the ESA.

[iii] Hopp (Re), 1997 CanLII 25649 (BC EST) [Hopp].

[iv] Isle Three Holdings Ltd. (Thrifty Meals) (Re), 2008 CanLII 93086 (BC EST), at para. 11.

[v] Hopp supra; Helliker (Re), 1997 CanLII 25626 (BC EST); Information to the Employment Requirements Act and Regulation.



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