Maternity Leave and Reasonable Notice for Employment Termination

Posted by Johannes Schenk on December 8th, 2009 — Posted in Employment Law, Human Rights Law

In case it wasn’t obvious, reasonable notice periods are suspended by maternity leave. Don’t terminate your pregnant employees or employees that are on maternity leave. See the following cases:

Whelehan v. Laidlaw Environmental Services Ltd.

Winterburn v. Domtar Inc., 2002 BCSC 1418

Wells v. Patina Salons Ltd., 2003 BCSC 1731

No Statutory Cause of Action in Employment Standards Act

Posted by Johannes Schenk on December 7th, 2009 — Posted in Employment Law

Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, deals with the issue of whether rights under the Employment Standards Act can form the basis of a civil action. Answer: no.

Mr. Justice Chiasson states for the Court:


[100] In my view, the learned chambers judge erred in concluding that rights granted by employment standards legislation are incorporated into employment contracts as a matter of law regardless of the intentions of the parties. The cases relied on by the chambers judge do not support such a conclusion.

[101] The proper analysis begins with Orpen: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract.

[102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available.

[103] In this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action.

This authority is not inconsistent with the caselaw that holds an employer cannot contract for less than the minimum statutory notice periods.