Recently, two British Columbia court cases considered the
effect of an employee refusing to work after a period of working
notice was provided by the employer.
In Allan v. Ainsworth Lumber Co. Ltd.,1 the
employer provided notice of termination to the employee in
accordance with an employment contract that provided that the
employee would receive 15 months' salary and benefits or
"pay in lieu". The company gave the employee a letter
stating he would be terminated 15 months later, but that he was no
longer required to report to work and was to focus his time and
energy instead on securing new employment. He was asked to leave
the building that day and to turn in any company property. He no
longer had access to his company email, telephone or voicemail.
The employee brought a legal action and claimed that the 15
months' pay in lieu of notice was not really notice, but a debt
due under his employment agreement. The employer denied that it had
terminated his employment and argued instead that it gave the
employee 15 months' working notice while also assigning him to
new duties devoted exclusively to searching for new employment.
In considering these issues, the Court found that the
employer's letter did, in fact, end the employee's
employment. It noted that termination must be clear and
unequivocal, and that recognition would not be given to an employer
who intentionally creates ambiguity through its own words and
conduct and for its own advantage. The Court also rejected the
employer's argument that the employee had been constructively
dismissed and held that the purported giving of working notice to
the employee was simply a guise for actual immediate termination.
Therefore, the employee was awarded 15 months' notice in
accordance with his employment contract and damages for a lost
bonus which had formed a significant part of his compensation
In another decision, Giza v. Sechelt School Bus Service
Ltd.,2 a part-time bus driver was terminated
without cause and provided with five weeks' notice, based on
his employer's belief that the statutory notice period in the
Employment Standards Act was sufficient. The employee did
not return to work after receiving this notice. At trial, the Court
held that although inadequate notice had been given, the plaintiff
had quit, and therefore was not entitled to damages for wrongful
dismissal. However, the Court of Appeal overturned the trial
judge's finding that the employee's failure to work through
the notice period disentitled him to any damages. The Court agreed
that the employee's failure to work during a notice period
repudiated the employment relationship and brought it to an end,
but held that the employee was still entitled to receive reasonable
notice because that right arose before the repudiation. The Court
of Appeal agreed that the notice provided was not sufficient and
calculated reasonable notice to be six months, but deducted one
month for the time the employee could have worked with pay for the
Based on these cases, employers should take into account several
practical considerations when deciding whether or not to provide an
employee with a lengthy working notice period rather than pay in
Carefully review and consider the actual terms of any
applicable employment agreement concerning termination, and ensure
that there is an option to provide working notice of termination as
opposed to a lump sum payment in lieu. Ensure that the employee is
being provided with the specific entitlements outlined in any
If the employee is provided with a lengthy working notice
period, ensure that all of the same terms and conditions of
employment continue, and be cautious not to significantly change
any of the employee's duties or obligations during the notice
period (including working from home or not working at all) without
clear agreement from the employee.
Consider carefully the length of the period of notice to be
given, where none is specified in the employment agreement. Where
practicable, provide a period of notice that is in the range of
common law notice. Alternatively, consider partial working notice
followed by pay in lieu for the remainder of the employee's
entitlement. Given the increasing complexities of damages claimed
in wrongful dismissal actions, including those relating to benefit
continuation, working notice periods are often an effective way of
discharging an employer's termination obligations. However, as
these recent cases demonstrate, working notice is not necessarily
simple in practice, and often an employer's best intentions can
still result in liability. For this reason, it is important to
carefully consider all of the relevant circumstances and factors
before implementing a period of working notice.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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