Starting a lawsuit too early can significantly reduce your recovery, even when your underlying claim is strong.
A recent decision from the British Columbia Supreme Court serves as an important reminder for employees and employers alike: how and when a wrongful dismissal claim is started can materially affect damages.
In Adrain v. Agricom International Inc., 2025 BCSC 1842, the Court considered what happens when an employee sues their employer while still working through a period of working notice. The result was not what the employee expected.
The Facts
The employee had nearly 30 years of service. Her employer provided 13 months of working notice, meaning she would continue working and receiving pay during that period instead of being paid out immediately.
Believing that 13 months was insufficient given her long service, the employee retained counsel. Two demand letters were sent seeking $200,000 in compensation. When the employer declined, the employee commenced a lawsuit while still employed and receiving working notice.
What the Court Decided
Justice Brongers made several key findings that clarify an often misunderstood area of employment law.
1. Suing While Still Working Is Not Just Cause
The Court confirmed that starting a lawsuit against your employer while still working does not amount to just cause for dismissal. Employees are not automatically misconducting themselves simply by asserting their legal rights.
2. But It Can Be a Repudiation of the Employment Contract
While it was not just cause, the Court held that commencing the lawsuit did amount to a repudiation of the employment contract.
Repudiation occurs when one party demonstrates an intention not to be bound by the contract. By suing while still on working notice, the employee effectively signaled that the employment relationship could not continue as agreed.
Critically, repudiation only has legal consequences if the employer accepts it, which Agricom did.
3. How Damages Were Calculated
This is where the case has the most practical impact.
The Court first determined the employee’s reasonable notice period, which was 24 months, reflecting her long service and seniority.
From that 24-month entitlement, the Court deducted:
-
- The 1.5 months of working notice she actually worked, and
- The 11.5 months of working notice she refused to work after repudiating the contract
The math was straightforward:
24 months
minus (1.5 months worked + 11.5 months not worked)
= 11 months of damages
Despite being entitled to 24 months’ notice in principle, the employee recovered less than half of that amount.
Why This Case Matters
This decision highlights a critical strategic point for employees:
- Starting a lawsuit too early can significantly reduce your recovery, even when your underlying claim is strong.
Employees who believe their working notice is inadequate should seek legal advice before taking steps that may unintentionally shorten their entitlement.
For employers, the case confirms that:
- Working notice can meaningfully reduce liability when properly managed, and
- An employee’s repudiation can be accepted without alleging just cause, preserving the employer’s position.
Practical Takeaways
For Employees
- Working notice does not prevent you from seeking legal advice
- But starting a lawsuit before the notice period ends can reduce damages
- Timing matters as much as entitlement
For Employers
- Properly structured working notice remains a powerful risk-management tool
- Repudiation does not require misconduct, only a clear refusal to continue the contract
- Documentation and response strategy are critical once litigation begins
Final Thoughts
Adrain v. Agricom International Inc. is a reminder that employment law outcomes often turn on process and timing, not just fairness. Both employees and employers should tread carefully when disputes arise during a working notice period.
How Minken Employment Lawyers (1990) Can Help
Whether you are an employer that needs to downsize or a professional navigating the aftermath of a layoff, Minken Employment Lawyers (Est. 1990) offers trusted guidance. With more than three decades of experience, our team helps employers and executives alike manage notice, severance, employment contract issues and restructuring risk.
Contact Minken Employment Lawyers (Est. 1990) today for a confidential consultation at 905-477-7011 or contact@minken.com to connect with our team.
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Please note that this article is for informational purposes only and does not constitute legal advice or opinion.
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