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Are Construction Workers in BC Entitled to Severance?

Olivia Oszkiel

Associate
March 6, 2024

This question is a very important one to our construction clients – both employees and employers!

The primary piece of legislation that governs workers in British Columbia and sets minimum standards for working conditions is the Employment Standards Act, RSBC 1996, c 113 (the “ESA”).

As discussed in our previous post, certain workers are fully or partially excluded from the protection of the ESA due to the nature of their work.

Construction workers, for instance, are generally exempt from the requirements of sections 63 and 64 of the ESA which outline an employer’s liability resulting from an employee’s length of service:

  • Section 63 of the ESA details an employer’s obligation to either provide an employee with written notice of termination or termination pay instead of notice (or a combination of both) depending on how long the employee worked with their employer.
  • Section 64 of the ESA outlines an employer’s obligation to provide written notice of group termination or termination pay instead of notice  (or a combination of both) when the employment of 50 or more employees at a single location is to be terminated within any 2-month period.

Section 65(1)(e) of the ESA states that sections 63 and 64 do not apply to workers if: 

  • The employee is employed at one or more construction sites; and
  • The employer’s principal business is construction.

Under section 1 of the ESA, “construction” means “the construction, renovation, repair or demolition of property or the alteration or improvement of land”.

If, for example, an employee typically works on the employer’s premises, such as a shop, and rarely goes to a construction site, this subsection would not apply to that employee. If the employer’s principal business is not construction, this subsection would also not apply. If the subsection does not apply, then that employee would be covered under sections 63 and 64 of the ESA and would be entitled to notice or termination pay (or both) upon the termination of their employment following their probationary period with their employer.

An example where the exemption would apply would be where an employee is employed putting roofs on new houses by a company whose business is comprised of 70% new construction and 30% re-roofing and repairs. This employee would not be covered under sections 63 and 64 of the ESA and their employer would not be obligated to provide notice or termination pay to the employee upon their dismissal.

That said, just because construction workers may not be entitled to statutory notice or termination pay under the ESA, they may still be entitled to common law reasonable notice.

Know Your Rights and Responsibilities

Whether you are a construction worker wondering if you are entitled to notice or termination pay under the ESA or an owner of a construction company seeking clarification regarding whether you are obligated to provide severance, it is important to have effective legal support.

If you need assistance or want to discuss this issue, reach out to us! We want to help!