Short of constructive dismissal, an employee who is provided with working notice must complete the working notice period they are provided with, otherwise they may be held to have resigned and forfeit any future claim of notice. The decision in Giza v. Sechelt School Bus Services Ltd. demonstrates this aspect of Employment Law.
Mr. Giza worked for his employer, Sechelt School Bus Service Ltd. (“SSBS”) for approximately five years as a part time bus driver for some of the local schools. In 2009, after a meeting with SSBS, Mr. Giza was assigned to a different school bus route. After driving the newly assigned bus route, Mr. Giza became concerned with possible issues regarding the timing of connections on the route. Mr. Giza informed both SSBS and the vice-principle of the school involved with the connections of his concerns. SSBS was not impressed that Mr. Giza approached the vice-principal of the school as the work from the school made up approximately 90%-95% of SSBS’s business.
Following this incident, SSBS decided to terminate Mr. Giza’s employment and provided him with a termination letter on September 30, 2009 which indicated that in accordance with the Employment Standards Act Mr. Giza would receive just over 5 weeks working notice and that his last day of work would be November 6, 2009. That same day after reading the termination letter, Mr. Giza left work early and did not return to complete the working notice period. Mr. Giza thereafter commenced an action in the British Columbia Supreme Court claiming wrongful dismissal and other associated damages.
British Columbia Supreme Court Decision
At trial, the Court concluded that SSBS failed to provide Mr. Giza with the reasonable notice that he was entitled to upon termination. However, despite this finding, the Court concluded that Mr. Giza was not entitled to an award of damages for notice as he had effectively resigned from his employment when he elected not to return to complete the working notice period provided by SSBS. Therefore, the Court dismissed Mr. Giza’s claim for wrongful dismissal.
Points of Note
The decision in this case demonstrates a fundamental concept in Employment Law: an employee is not entitled to notice of termination if they resign from their position with the employer. As demonstrated in the case above, an employee can be found to have resigned from their employment even after they have been provided with notice of their upcoming termination.
Given that terminations are involuntary, notice is provided as financial compensation to the terminated employee in order to make the employee whole for the period of time it would reasonably take to find re-employment. However, when an employee resigns they are electing to alter their financial situation and are therefore not entitled to any notice. The same reasoning applies when an employee fails to complete a period of working notice, as by doing so, the employee is electing to end their employment prior to the assigned termination date, therefore altering their financial situation and eliminating the employer’s obligation to provide any remaining notice.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.
For recent developments see: Court Awards Notice Despite Employee’s Resignation During Working Notice Period, Feb. 7, 2012.
See also: Giza v. Sechelt School Bus Service Ltd. and Gould, 2011 BCSC 669 (CanLII)
Related Employment Law Articles
- “Employer Entitled to 10 Months’ Notice: Court” (originally published in Canadian Employment Law Today, January 13, 2010)