Employers will, on occasion, give an employee advance working notice of termination. The issue sometimes arises about whether the employee is required to actually work through that period of working notice or can refuse to do so, and the implications associated with the employee refusing.
The British Columbia Court of Appeal has recently considered this issue in Giza v. Sechelt School Bus Service Ltd. (January 13, 2012). In this case, the employee, a school bus driver, commenced employment with the company in September 2004. He was informed, on September 30, 2009 that his employment was being terminated providing him with 5 weeks working notice seemingly in accordance with the BC employment standards obligations.
Rather than continue to work through the period of working notice, the employee “ drove his bus back to the respondent’s terminal and left work permanently.”
The trial judge found that, in the circumstances, the 5 weeks notice was inadequate at common law, but that the employee “repudiated his employment contract by failing to work after notice was given and was not entitled to damages.”
The employee appealed.
One of the issues, and the one I want to discuss, is “the legal effect of an employer’s termination of an employee’s contract of employment with inadequate notice as well as the effect of the employee’s failure to work during the notice period given.”
The Court outlined the trial judge’s reasons on the issue and, specifically, the observation that unless the employer constructively dismissed him during the period of working notice the employee repudiated the employment agreement, or in other words, quit by failing to remain through the period of working notice. According to the trial judge, the mere giving of working notice (even if inadequate) does not amount to a constructive dismissal.
According to the Court of Appeal, there was no error in this finding in the circumstances. The Court noted:
In my view, it is clear that the respondent did not constructively dismiss the appellant and that the appellant repudiated the employment contract by failing to work during the notice period. In classic terms, he evidenced an intention not to be bound by the contract, but that did not deprive him of his right to damages for the respondent’s breach of contract in giving him inadequate notice. [Emphasis added]
In other words, the employee’s right to damages in lieu of reasonable notice accrued when “he was given inadequate notice” and his “repudiation did not take away that right and it did not take away the right of the [employer] to the [employees’] services during the period of notice given.
The Court provided the following helpful summary:
- the respondent breached its contract of employment by failing to give adequate notice of termination;
- the respondent’s conduct did not amount to a constructive dismissal, that is, a repudiation by the respondent of the employment relationship; it continued during the notice period;
- the respondent’s breach gave the appellant a cause of action for damages in lieu of reasonable notice;
- the period of reasonable notice for which damages could be recoverable is the period of reasonable notice to which the appellant was entitled less the period of notice actually given during which the appellant could have and should have worked and been paid;
- the appellant’s failure to work during the notice period was a repudiation that brought to an end the employment relationship and the ongoing rights and obligations of the parties under it;
- that repudiation did not take away the appellant’s cause of action for damages in lieu of notice or the respondent’s right to have the appellant’s services during the notice period that was given because those rights had accrued before the repudiation.
The Court determined that the period of reasonable notice in this case was 6 months from which was deducted the 5 weeks of working notice provided but not worked.
While there are some practical difficulties with satisfying the reasonable notice obligations through reasonable notice, this case supports the fact that the employer may do so, and, absent more (e.g. conduct giving rise to a constructive dismissal or other conduct justifying the employee refusing to work through the period of reasonable notice) the employee must do so.
This is an instructive case for employers and employees who provide or are provided with working notice of termination in whole or in part.