In British Columbia, employee terminations are governed by both:

Employment Standards Act (ESA) – which sets out minimum statutory requirements for notice or pay in lieu.

Common law – which may provide a greater entitlement based on factors like age, tenure, position, and availability of similar employment.

For severance calculations, employers must consider both, and provide at least what is required under the ESA, though common law entitlements are often higher unless a valid employment contract limits them.

Statutory (ESA) Approach:
ESA would consider Jan 2022 as the rehire date and exclude previous service due to the resignation (i.e., break in service).

Therefore, under ESA: ~2.5 years of service (Jan 2022 – current date, excluding mat leave).

Common Law Approach:
Courts sometimes treat the employment as continuous if the resignation and rehire were connected (e.g., personal reasons but rehired within a few months under similar terms).

However, a 5-month break (Aug 2021–Jan 2022) may break continuity unless:

-The resignation was induced or prompted by the employer,
-There was a mutual understanding of return,
-No formal release was signed, and
-The job duties and terms were substantially similar upon return.

If you treated her as a new hire in Jan 2022, this will likely limit her claim under common law, unless challenged and continuity is argued.

Severance Pay Guidance
1. Minimum ESA Notice or Pay in Lieu:
For 2.5 years of service, the ESA minimum is:

-2 weeks’ notice or pay in lieu (as she hasn’t reached 3 years).

2. Common Law Reasonable Notice:
More generous than ESA, based on Bardal factors:

-Age (not provided, but relevant if 45+),
-Position/role (seniority/responsibility matters),
-Years of service (arguably 2.5 or 5+ depending on continuity),
-Availability of similar employment.

Typical awards range from 2–6 weeks per year of service, often totaling 2–6 months for short-to-mid-term employees in professional roles.

If treating her as having 2.5 years of service, a reasonable common law notice could be:

-2 to 3 months’ pay in lieu of notice.

If arguing continuous service from Aug 2018, that could increase to:

-4 to 6 months’ pay in lieu (depending on her age and role).

Recommendations
If her contract limits her to ESA minimums: 2 weeks’ pay in lieu (safe and compliant).

If no limiting contract and no claim of continuous service: consider offering 2–3 months’ pay in lieu to align with common law expectations.

If continuity may be challenged (and you want to mitigate risk): a more generous package of 3–4 months’ pay in lieu could help prevent litigation.

Document your rationale clearly, especially if you do not recognize pre-2022 service.

Suggested Next Steps
Review her current employment contract – Does it limit severance to ESA minimums?

Consult an employment lawyer – Especially if there is a risk of the employee asserting prior service.

Prepare documentation – Include a written breakdown of service periods and basis for your severance calculation.

Refer to the HRInsider Termination Letter Template and our Severance Agreement Template after speaking to legal counsel to ensure you are following through with these actions compliantly!

-HRInsider Staff