Quitting Before End of Notice Period: Lessons from B.C. Court of Appeal

March 03, 2012 - by: Hadiya Roderique 0 COMMENTS

By Hadiya Roderique

Working notice — the default under many pieces of employment standards in Canada — can be a way to reduce an organization’s cost of termination of employment. But what happens when an employee quits in response to getting fired before the end of the notice period? And what happens when the working notice isn’t reasonable. The recently decided British Columbia Court of Appeal case of Giza v. Sechelt School Bus Service Ltd., sheds some new light.

Facts
Raymond Giza was a five-year part-time school bus driver for the employer, Sechelt School Bus Service Ltd. He wasn’t subject to an agreement setting out an amount of notice to be given upon termination.

In September 2009, Giza was assigned to a different bus route that required a later end time. He had concerns about the route departure time, but the school administrators wanted the departure time to remain the same. When he spoke to the owner, Randy Gould, the discussion became argumentative.

Gould had previously expressed concern that Giza needed to improve his work behavior and felt that this was the last straw. Gould terminated Giza’s employment without cause, providing Giza with the statutory minimum of five weeks’ working notice on September 20, 2009, with Giza’s last day of work to be November 5, 2009. When Giza received the letter, which was left on his seat on his bus, he returned his bus to the terminal and left work permanently.

Trial decision
Giza brought a claim for wrongful dismissal damages, seeking 10 months’ pay in lieu of notice. At trial, the judge held that five weeks’ notice was inadequate but that Giza had repudiated his employment contract by failing to work after notice was given. As such, he wasn’t entitled to damages. The judge noted that “Unless [the employer] constructively dismissed him, Mr. Giza repudiated the employment agreement, or in other words, quit.”

The trial judge then considered whether the employer’s conduct amounted to a constructive dismissal of the employee, noting Giza’s argument that it would have been intolerable to continue to work. The judge decided that the fact that the employer gave notice of termination didn’t establish constructive dismissal because the employer was “entitled to give reasonable notice.”

B.C. Court of Appeal
The B.C. Court of Appeal considered 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.

The Court of Appeal agreed that the company’s conduct didn’t constitute constructive dismissal. However, unlike the trial judge, the Court of Appeal decided that even though Giza quit after receiving his working notice of termination, he was still entitled to damages because his employer breached the employment contract first by giving him inadequate notice.

The Court of Appeal went on to determine that a reasonable notice period would have been six months but reduced this award by the period of working notice that Giza refused to work — for a total of five months’ pay in lieu of notice.

Lessons learned
In sum, this decision stands for the principle that an employee who receives inadequate termination notice and refuses to work during this notice period doesn’t lose his or her right to damages. Conversely, it also stands for the principle that employees can be found to have quit their employment when they have been provided with reasonable working notice of their impending termination with no entitlement to damages.

Given this is a decision by an appeal court, it may be followed by courts throughout Canada.

About Hadiya Roderique:
Hadiya Roderique is an associate in the Labour, Employment and Human Rights Group. She is engaged in a broad practice assisting employers with matters relating to restructuring, downsizing, human rights, employment agreements and terminations, labour relations and collective agreement interpretation.
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