The British Columbia Court of Appeal (the Court) released its
decision in Giza v.Sechelt School Bus Service Ltd. on
January 13, 2012. The Court held that the employee, who quit his
job immediately after being given working notice of termination of
employment was nevertheless entitled to sue for damages for
wrongful dismissal for the period of reasonable notice the employee
should have received in excess of the working notice given. The
decision marks a departure from the Court's previous decisions
that stated clearly that the contract of employment was not
terminated until the end of the working notice period and that an
employee was required to work during such notice period so that the
employer can benefit from the employee's services.
Mr. Giza was employed as a bus driver by the Sechelt School Bus
Service Ltd. (SSBS) for a period of five years. In September 2009,
the employer terminated Mr. Giza without cause, providing him with
five weeks of working notice in accordance with the provisions of
the British Columbia Employment Standards Act. No
provision was made by the employer to compensate the employee for
reasonable notice at common law based on the employee's length
of service and other factors relevant to the employment
relationship. When Mr. Giza received the letter, which was left on
the seat of his bus by the employer, he returned the bus to the
terminal and left work permanently. He subsequently sued his former
employer for wrongful dismissal damages, seeking 10 months' pay
in lieu of reasonable notice.
At trial, the judge held that the provision of five weeks of
working notice was inadequate notice in the circumstances. However,
because the employee left his employment immediately after
receiving the termination notice, he effectively repudiated the
employment agreement, which disentitled him to damages in respect
of wrongful dismissal.
The trial judge also considered whether Mr. Giza was
constructively dismissed, in light of his argument that it would
have been "intolerable" for him to continue working for
SSBS after receiving inadequate notice of termination by the
employer simply leaving a letter on the seat of his bus. The trial
judge emphasized that in assessing whether there has been a
constructive dismissal, the court is required to consider,
objectively, whether the employer changed a fundamental term of the
employment, such that it would have been unreasonable for the
employee to continue working. These circumstances did not exist in
this case. An employer is entitled to give working notice of
termination of the employment contract, and accordingly, the fact
that SSBS gave such notice was not a constructive dismissal.
Court of Appeal Decision
The Court overturned the trial decision with respect to the
employee's right to damages for reasonable notice. The Court
agreed that the employee was not constructively dismissed and has,
in fact, repudiated the employment contract by failing to work
during the notice period. The Court found, however, that quitting
did not deprive the employee of his right to damages for the
company's breach of contract in providing him with inadequate
notice in the first place. Even though Mr. Giza had quit after
receiving his working notice of termination, the employee's
right to damages in lieu of reasonable notice had already accrued
when he was given inadequate notice of termination.
Essentially, the Court found that although the employee's
repudiation ends the ongoing rights and obligations under the
employment contract, it does not affect the rights that have
already accrued by virtue of the employer's breach of contract.
Thus, Mr. Giza was found entitled to the difference between
reasonable notice he should have received and the actual working
notice the employer attempted to provide.
The Court determined 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 notice.
The decision in Gizastands for the principle that an
employee who receives inadequate termination notice and quits
without working through the working notice period does not lose his
or her right to sue for damages for wrongful dismissal. Employers
should take stock of their termination procedures and keep in mind
that if they attempt to dismiss an employee by providing working
notice but fail to do so properly, they could be liable for damages
even if the employee quits. The employee will likely be entitled to
damages in an amount equal to the difference between the working
notice offered by the employer and the assessment of what
constitutes reasonable notice at common law for that particular
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