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BC Appeal Court Reduces Employee’s Notice Pay for Refusing to Work During Notice Period

Posted On: January, 21 2015

Raymond Giza worked as a bus driver for Sechelt School Bus Service Ltd. (“Sechelt”), and its owner, Randy Gould, for a period of five years.  On September 30, 2009, Mr. Giza arrived at work to find a paycheque, a pay stub and a notice of termination letter on his driver’s seat advising him that his employment would end five weeks later on November 6, 2009.

Sechelt had provided Mr. Giza with five weeks “working notice” of his termination, which was the minimum required under BC’s Employment Standards Act (ESA).  Mr. Giza decided not to work through the notice period.  Instead, he dropped his school bus off at the employer’s premises and left work permanently.  Mr. Giza then sued for wrongful dismissal.

The trial judge hearing Mr. Giza’s wrongful dismissal suit found that Mr. Giza had repudiated the employment contract by abandoning his job and refusing to work through the notice period.  The trial judge concluded that as a result, Mr. Giza was not entitled to his minimum notice pay under the ESA, nor was he entitled to common law notice of his termination.   According to the trial judge, even though the employer had provided inadequate working notice, Mr. Giza was still an employee and was not entitled to refuse to work during the notice period.  And, by failing to work, Mr. Giza had given up his right to ESA and/or common law notice.  Mr. Giza disagreed with the trial judge’s findings and appealed the decision to the BC Court of Appeal.

On appeal, the Court of Appeal agreed with the trial judge that Mr. Giza had repudiated the employment contract by failing to work during the five week notice period.  The BC Court of Appeal confirmed that in ordinary circumstances an employer can require a dismissed employee to work through the notice period.

The BC Court of Appeal did not agree, however, that Mr. Giza had lost his right to notice of his termination altogether.  In its decision, the BC Court of Appeal found that Mr. Giza should have been provided with six months notice of his termination, but that Ms. Giza’s six months of notice should be reduced by one month to account for the monies Mr. Giza would have received had he worked during the notice period.

With the assistance of a lawyer, employees who receive an offer of working notice of termination can successfully negotiate an improved separation package which may include additional working notice, a combination of working notice and pay in lieu of notice, salary continuance, or a lump sum payment in lieu of notice.

The full text of the Court of Appeal’s decision can be found here: http://canlii.ca/en/bc/bcca/doc/2012/2012bcca18/2012bcca18.html

 

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