Working notice. The default under many pieces of employment
standards, it can be a way to reduce the costs of termination of
employment to an organization. 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 B.C. Court of Appeal case of
Giza v. Sechelt School Bus Service Ltd. (PDF),
sheds some new light.
Raymond Giza was a part-time school bus driver for the employer,
Sechelt School Bus Service Ltd. for five years. He was not
subject to an agreement that set out the amount of notice that Giza
would receive upon termination.
In September 2009, Giza was assigned to a different bus route
that required a later end time. Giza had concerns about the
route departure time, but the school administrators wanted the
departure time to remain the same. When Giza spoke to the
owner, Randy Gould, the discussion became argumentative.
Gould had previously expressed concern that Giza needed to
improve his work behaviour, 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
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 was not entitled to damages. The judge
noted that "Unless [the employer] constructively dismissed
him, Mr. Giza repudiated the employment agreement, or in other
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 the employer gave
notice of termination did not establish constructive dismissal
because the employer was "entitled to give reasonable
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 did
not constitute constructive dismissal. However, unlike the trial
judge, the Court of Appeal decided that even though Mr. 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
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 Mr. Giza refused to work
– for a total of five months' pay in lieu of
In sum, this decision stands for the principle that an employee
who receives inadequate termination notice and refuses to work
during this notice period does not lose his or her right to
damages. Conversely, it also stands for the principle that
employees can be found to have quit their employment where 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 the country.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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