The British Columbia Court of Appeal has overturned the Superior Court’s decision in Giza v. Sechelt School Bus Services Ltd. finding that the Trial Judge erred when concluding that an employee who fails to work during the notice period looses their entitlement to reasonable notice or damages in lieu thereof.
Background and British Columbia Supreme Court’s Decision
For a summary of the background on this case and the British Columbia Supreme Court’s decision, please review our blog entitled “Complete Working Notice Period or Risk Loss of Notice Entitlement”.
British Columbia Court of Appeal’s Decision
On appeal by the employee, the Court of Appeal determined that despite the employee refusing to work throughout the working notice period provided by the employer, the employee was still entitled to damages in lieu of reasonable notice. In this regard, the Court of Appeal stated the following:
“…it is clear that the [employer] did not constructively dismiss the [employee] and that the [employee] repudiated the employment contract by failing to work during the notice period. In classic terms, he evidenced an intention to not be bound by the contract, but that did not deprive him of his right to damages for the [employer’s] breach of contract in giving him inadequate notice.”
Additionally, the Court of Appeal stated,
“…although repudiation ends the ongoing rights and obligations of parties under a contract, it does not affect rights and obligation that have accrued. In the present case, the [employee’s] right to damages in lieu of reasonable notice had accrued when he was given inadequate notice. His repudiation did not take away that right and it did not take away the right of the [employer] to the [employee’s] services during the period of notice given.”
Based on this finding, the Court of Appeal determined that the employee was entitled to a six month notice period, less the period of actual notice during which the employee could have worked and been paid by the employer, resulting in the employee receiving five months notice. Accordingly, while the employee was entitled to an award of notice, the overall notice entitlement was reduced by the amount of working notice initially offered by the employer, which was refused by the employee.
Points of Interest
As indicated in the blog regarding the Supreme Court’s decision, it is a fundamental concept in Employment Law that an employee is not entitled to notice of termination if they resign from their position with their employer. However, the Court of Appeal’s decision seems to have altered this fundamental concept in some limited circumstances.
The above decisions appears to permit an employee who feels as if they have not received reasonable notice of termination to effectively resign from their employment during the working notice period and still be permitted to receive an award of notice. Although such an award would be reduced by the amount of working notice that the employee waived by resigning, it appears that an employee who elects to alter their own financial situation by resigning from their employment within the context of a termination and an offer of working notice may still receive an award of notice. It will be interesting to see the effect this decision may have on future Employment Law decision and whether it is appealed to the Supreme Court of Canada.
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