The British Columbia Court of Appeal has dismissed an appeal by a forest technologist who claimed he was wrongfully dismissed from his job at Timberland Consultants after being laid off. The court ruled that the arbitrator in the original case did not err in concluding that the layoff was voluntary and therefore did not trigger the deemed termination provisions of the Employment Standards Act (ESA).
C.M., who had worked for Timberland Consultants since 2001, argued that he was laid off in October 2020 and had not been recalled to work within the 13-week period allowed under the ESA for a temporary layoff. The ESA stipulates that if an employee is laid off for more than 13 weeks, their employment is deemed terminated, entitling them to severance pay. C.M. contended that he should be entitled to damages for wrongful dismissal as a result of Timberland’s failure to recall him.
An arbitrator dismissed his claim, finding that the layoff was not initiated by the company, but by C.M. himself, who had requested time off in October 2020 — something he had done in previous years. The arbitrator concluded that since the layoff was voluntary, the ESA’s deemed termination provisions did not apply.
C.M. appealed the decision, arguing that the arbitrator had wrongly distinguished between an employer-initiated and employee-initiated layoff when determining whether the ESA applied. He contended that such a distinction was not supported by the legislation and that any layoff, regardless of who initiated it, should trigger the ESA provisions.
The Court of Appeal rejected his argument, stating that the arbitrator had not relied on a distinction between employee- and employer-initiated layoffs as the determinative factor. “Though the language used by the arbitrator could have been clearer, it is apparent that the arbitrator’s award, considered functionally and in context, did not draw any such principled distinction,” the court wrote.
Instead, the court found that the arbitrator’s decision was based on factual findings specific to C.M.’s employment history. The arbitrator had found that C.M. had requested time off in October 2020, as he had done in previous years, and that Timberland had work available for him if he had requested it during the layoff period. “These facts do not support an application of the deemed termination provisions set out in the Act, which contemplate a layoff initiated by the employer,” the court said.
“We must accept the arbitrator’s conclusion that on the evidence, it is clear … that the layoff was initiated by (C.M.) … [and] that if (he) had requested work from Timberland outside of the TCP Contracts, it would have been provided,” the court wrote.
However, Justice Griffin dissented, arguing that the arbitrator had indeed made an error in law by focusing on the voluntary nature of the layoff. Griffin contended that the ESA does not distinguish between layoffs initiated by the employer or the employee and that both types of layoffs can trigger the ESA’s deemed termination provisions. In her view, the appeal should have been allowed, and the case remitted to arbitration.
C.M. had worked as a project manager overseeing contracts with BC Timber Sales (BCTS) for 15 years. His responsibilities included fieldwork during the “field season” and office work during the winter months, referred to as the “off-season.” C.M. claimed that in October 2020, his work for BCTS had been cancelled early and that he was placed on a temporary layoff. However, Timberland argued that C.M. had requested the time off, as he had in previous years, and that there was work available for him during the off-season if he had wanted it.
The court also addressed his employment with a competitor, Atlas Information Systems, in March and April 2021. The arbitrator had found that C.M.’s decision to assist Atlas in bidding on a contract with BCTS — a contract that Timberland also bid on — was dishonest and constituted a repudiation of his employment contract. C.M.’s claims for damages were dismissed.
With the dismissal of the appeal, the original arbitration decision stands, and Timberland Consultants is not required to pay damages for wrongful dismissal.
Justice Griffin, in her dissenting reasons, emphasized that the case should have been returned to the arbitrator for reconsideration, arguing that the error in interpreting the ESA was material to the outcome of the case.
For more information, see Morrison v. 0812652 B.C. Ltd. dba Timberland Consultants, 2024 BCCA 321 (CanLII).
