Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 ABOUT THE AUTHOR ANDRES BARKER Andres Barker is a Vancouver-based employment lawyer with Kent Employment Law. He can be reached at (604) 266- 7006 ext. 225 or andres@kentemploymentlaw.com. CREDIT: BGSMITH/SHUTTERSTOCK conditions during the relevant period were responsible for unusually high or low com- mission earnings. Section 63 of the ESA, on the other hand, contains a specific formula for the calculation of severance pay, known as "compensation for length of service." e employer must add up the regular wages the employee earned in the last eight weeks she worked normal or average hours, and divide that number by eight to arrive at the calculation of one week's wages. In completing its calculations, the employer must exclude any weeks which are not representative of the employee's typical hours of work. e result is that an employee who works on a commission or piecework basis could see her entitlement fluctuate depending on his sales or work vol- ume in the eight weeks before termination. Another difference from the common law is that the ESA excludes overtime from the calculation of severance pay. By comparison, an employee may be able to make a claim for lost overtime in court if she worked overtime so consistently that it had become a regular part of the compensation package. ese differences can create a situation where the calculation used by the employer to pay the employee her statutory severance amount is significantly different from the cal- culation used in the parties' forward-looking separation negotiations or by the courts. erefore, employers and employees both should be mindful of these differences and consider whether the departing employee is being under- or over-compensated through the final negotiated severance amount. Notice of termination At common-law, an employer is not required to give an employee written notice of termi- nation. While it is advisable to provide writ- ten notice since this will create clarity around the date of notice and the terms of dismissal, there is no obligation to do so. By contrast, the ESA requires that notice of termination be delivered in writing. Even if notice is clearly delivered verbally, an em- ployee can still claim minimum termination pay through the ESB if she failed to receive notice in writing. is can create a scenario of an employee receiving common-law rea- sonable notice entitlements, but still being able to file a complaint with the Employment Standards Branch to obtain further separa- tion payments. Take-away for employers and employees Although this article is specific to British Columbia, it highlights the need to consider how a provincial employment standards re- gime may differ from general common law principles. Employers and employees should both keep in mind the above differences where an actual or constructive dismissal has occurred, and when negotiating and calcu- lating appropriate separation packages. For more information see: • Macaraeg v. E Care Contract Centers Ltd., 2008 CarswellBC 855 (B.C. C.A.). • Isle ree Holdings Ltd. and British Colum- bia (Director of Employment Standards), Re, 2008 CarswellBC 3712 (B.C. Empl. Stnds. Trib.). September 30, 2015 | Canadian Employment Law Today

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