Smithson: To give working notice, minus the work

Most employers likely believe an employee given notice of termination and who refuses to keep working has forfeited legal claim to damages.

Most employers likely believe that an employee given working notice of termination and who refuses to keep working has forfeited any legal claim to damages.

They likely would have been correct in that belief, until now.

British Columbia’s Court of Appeal has issued a judgment stating that—in some circumstances—an employee given working notice can refuse to work and will not lose the right to sue for wrongful dismissal.

This is a bit of a complicated matter that seems to tilt the playing field somewhat in employees’ favour. The basis of the law of wrongful dismissal is an employee’s right to receive reasonable working notice of termination.

Unless an employee’s rights have been properly altered by contract or there is just cause for summary dismissal, the employer must to provide reasonable working notice of termination.

What is “reasonable” depends on the circumstances.

The courts take into account factors such as the employee’s age, tenure of employment, position, extent of managerial responsibilities, and likely difficulty in finding new employment.

When an employer fails, or refuses, to provide reasonable working notice, the employee can sue for damages for wrongful dismissal.

The “wrongful” part is the employer’s failure to provide the required amount of working notice and the damages the employee can obtain are the monetary equivalent of that lost notice period.

In return for reasonable working notice, employees have historically been required to continue to perform their usual tasks and duties during that notice period.

If they resigned their position—by walking away—during the working notice period they were treated as having forfeited the right to claim damages for wrongful dismissal.

So, the employer is obligated to give reasonable working notice and the employee is obligated to keep working.  Seems sensible, right? Not always, according to the B.C. Court of Appeal.

Raymond Giza, 61, had been a bus driver for the Sechelt School Bus Service Ltd. for five years. In 2009, his employer gave him approximately five weeks’ working notice of termination.

In response, Giza drove to the bus terminal, parked his bus, left his job  and didn’t return. He then sued for wrongful dismissal.

At trial, the B.C. Supreme Court did what employers would expect—it rejected his claim on the basis that, by walking away from his job, he had disqualified himself from receiving damages.

The Supreme Court stated: “(T)here is no reason why Mr. Giza could not have continued to work through the period of reasonable notice. Mr. Giza failed to do so, and as a result, quit his employment before it ended. Therefore, he is not entitled to damages for wrongful dismissal.”

His appeal of that decision produced a different, and perhaps puzzling, result. It determined that, although Giza failed to work through the working notice provided to him, he was not prevented from suing for damages.

The Court of Appeal stated: “In classic terms, (Giza) 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.”

The critical element seems to have been that the five weeks’ working notice given to Giza was clearly insufficient. The two courts agreed on that point.

In all of the circumstances, Giza was entitled to working notice in the range of six months.

The employer’s error was, apparently, in thinking it only needed to provide him the five weeks’ notice mandated by B.C.’s Employment Standards Act.

The Court of Appeal found that Giza’s “right to damages in lieu of reasonable notice had accrued when he was given inadequate notice.”

His repudiation— by walking away—apparently did not take away that right. This would seem to be the judicial equivalent of pointing at the employer and saying, “You started it!”

In the end, Giza took away his damages in lieu of reasonable notice. The employer took away the lesson that, when contemplating giving working notice of termination, it should seek advice about what is reasonable in the circumstances.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna.

Kelowna Capital News

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