Is my Employer Permitted to Terminate my Employment While I am on Leave?

Posted:  Sep 26, 2023

As an employee, one of the few things they won’t necessarily teach you is that there is a clear dichotomy between your work and personal life. For instance, when it comes to your personal life, you can excuse yourself from a task as it pleases you without any repercussions. In the employment world, however, you won’t always have the freedom to grant yourself a leave of absence (unless you are the business owner).

Now, regarding whether an employer can terminate an employee during their leave of absence, it depends largely on a combination of legal factors, company policies, and individual circumstances.

In this blog, we shall provide clarity on this issue and the possible solution if you are faced with a situation like this.


Employee Protections in British Columbia

The Employment Standard Act (ESA) in British Columbia typically protects the rights and well-being of employees in the province. One of the things that this act protects is the employment status and benefits of employees when they exercise their right to a statutory leave of absence.

This act mandates that every British Columbia employee, on returning from their leave of absence, must remain in the same or similar position they ought to have been in if they hadn’t gone on leave, plus their employment benefits must also be maintained.

Specifically, in the context of leave of absence, employees in British Columbia enjoy the following rights under the Employment Standards Act (ESA).

  1. Reinstatement rights: The British Columbia Employment Standard Act (ESA) mandates that employees have the right to return to the same or a comparable position they would have occupied if the leave had not been initiated. This safeguard is intended to prevent any adverse consequences stemming from an employee’s decision to exercise their statutory leave entitlement.
  2. Benefit preservation: The ESA also posits that employees, during their leave of absence, must also retain their entitlement to their employment benefits, such as health insurance, pension contributions, and other relevant benefits.
  3. The right to retain their seniority: The act also gives employees the right to accrue seniority while on leave. This contributes significantly to the employee's long-term job security and potential advancement within the organization.
  4. Vacation entitlement: The Employment Standard Act in British Columbia also ensures that employees, while on leave, retain their vacation entitlement. This means that employees, upon resumption, will enjoy their accrued vacation.
  5. Protection from reprisal: The Employment Standards Act in British Columbia explicitly safeguards employees from any form of reprisal or retaliation by their employer due to exercising their statutory leave rights.


Legitimate Reasons Why an Employee’s Employment Contract May be Terminated While on Leave.

Although the British Columbia ESA protects employees from wrongful or unlawful dismissal because they exercise their right to a statutory leave of absence, circumstances could cause a business owner to terminate an employee’s contract while on leave. In this blog section, we shall look at at least three circumstances.


       Dismissal Unrelated to the Employee’s Leave of Absence:

In some situations, an employee could get dismissed for reasons unrelated to the employee’s leave of absence. For instance, an employee may be dismissed for reasons such as business restructuring or the elimination of a department. Even while the employee is on leave, this type of dismissal will still be considered a legitimate dismissal.

It should, however, be noted that when an employee is dismissed without cause, certain obligations come into play to protect the employee’s rights. For instance, the employer will be mandated to provide the employee with either notice of termination or pay in lieu of notice. Failure to do any of these could get the employer sued for damage.


       Dismissal for just cause during leave

It is also possible for an employee to get dismissed while on leave for issues they are guilty of. For instance, if the employee has been involved in serious misconduct, the employer may terminate his or her employment contract. It should, however, be noted that, for this type of termination to be justified, the employee's actions must be deliberate or on purpose, making it difficult for employers to prove wrongdoing.

Employees dismissed because of their wrongdoings will not be eligible for any notice or pay in lieu of notice of their dismissal.


       Dismissal due to frustration of contract during leave

It is also possible for an employee to get dismissed when they go on an extended leave with no reasonable prospect of returning to the workplace. In this situation, an employer may easily conclude that the employee is unsatisfied with his contract and terminate it. When the employee terminates such a contract, the employee will not be entitled to compensation.

It is, however, fair to mention that an employee could go on extended leave for many reasons. For example, if an employee becomes terminally ill or disabled and can no longer work in any capacity When this type of situation arises, an employee might terminate their contract because it is possible that they will not be able to return to the workplace in the foreseeable future.



The British Columbia ESA typically provides a comprehensive framework for protecting employees if they decide to go on leave. As employers and employees, knowing how these regulations work is crucial to avoid legal issues.

That said, if you are an employee or an employer and need proper guidance, don’t hesitate to contact Stevens and Company Law Corporation today.







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