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Employee who Quit During Working Notice Period Still Entitled to Damages

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Starting off 2012 with a bang, a unanimous judgment of the British Columbia Court of Appeal found that an employee who quit his employment during a working notice period given by his employer, was nevertheless entitled to damages for wrongful dismissal.

The employee, Mr. Giza, had been working part time for Sechelt School Bus Service Ltd. for approximately five years as a part-time driver. When the business changed hands, Mr. Giza and the new owners of the company butted heads on a number of issues. Ultimately, the employer decided to terminate his employment by leaving a letter in Mr. Giza’s bus purporting to give him five weeks of working notice. Upon finding the letter Mr. Giza left work and did not return.  Mr. Giza sued for wrongful dismissal. Both Mr. Giza and his employer were self-represented at trial.

The Trial Judge decided that although the 5 weeks’ notice given by the employer was not enough, Mr. Giza had effectively given up any right to pay in lieu of notice when he refused to work out the remainder of the notice period given by the employer.

The British Columbia Court of Appeal disagreed.  It held that the employee was entitled to 6 months’ notice – not 5 weeks.  Although the employee had “repudiated” his employment agreement by leaving, that did not deprive him of the damages that had been triggered by the employer’s termination of his employment.

In other words, Mr. Giza did not forfeit his right to damages in lieu of notice of termination of employment that arose from the employer’s failure to provide appropriate notice, and the employer did not forfeit the right to have his services during the period of working notice actually given.

As a result, the Court awarded Mr. Giza six months of pay in lieu of notice, less the five weeks he had refused to work after learning of his termination.

Giza is interesting because it shows that, at least in B.C., employees who leave during the working notice period will still be entitled to damages if the notice given by the employer is not sufficient. 

Giza v. Sechelt School Bus Service Ltd., http://www.canlii.org/en/bc/bcca/doc/2012/2012bcca18/2012bcca18.html