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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Working Notice Must Be Reasonable

Posted in Litigation, Termination
Earl Phillips

Can an employee quit after getting working notice of termination and still collect damages? “Yes,” says the B.C. Court of Appeal.

Unless there is an employment contract term to the contrary, employment may be terminated by giving actual notice. In fact, that is the employee’s common law right for a termination without cause: to get notice that employment will end on some future date. The employee then goes back to work. Hence, “working notice”.

But the general view has been that an employee who refuses to work during the working notice period cannot sue for damages. In other words, the expectation was that the employee would work out the notice period and only then might sue if still unemployed.

A 61 year-old bus driver with five years service was given five weeks working notice. He refused to work the notice period and sued. The Court of Appeal agreed that he was not given reasonable notice. Giving only five weeks notice was a breach by the employer. The employee ended the employment relationship by quitting before the five weeks was up, but that did not affect his accrued right to sue for the employer’s breach. The employee got six months less the period of time he refused to work.

The simple conclusion: If you are going to give working notice of termination, make it reasonable.

[Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18]