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Resignation During Notice Period Results in Reduced Damages
January 23, 2012

The BC Court of Appeal recently revisited the legal implications of an employer providing inadequate notice of termination to an employee where the employee refuses to work through the notice period.

The employee, a 61 year old bus driver with 5 years’ service, was dismissed with 5 weeks’ working notice following ongoing problems with his employer. The employee refused to work during the notice period and subsequently sued the employer for wrongful dismissal. The trial judge concluded that 5 weeks’ notice was inadequate. However, because the employee refused to work after notice was given, the judge held he was not entitled to damages. The employee appealed this decision.

The Court of Appeal began by affirming that when an employee receives working notice, they are required to work during the notice period. However, if an employee receives inadequate notice, that may constitute repudiation of the employment contract.

Here, the Court found that the employer did not repudiate the contract or constructively dismiss the employee. Rather, the employee repudiated the employment contract by failing to work during the working notice period. However, that repudiation did not take away his cause of action for adequate damages in lieu of notice, or the employer’s right to have his services during the working notice period. As a result, the Court concluded that, while the appropriate amount of notice was 6 months, the damages payable should be reduced by the 5 weeks working notice originally provided by the employer.

Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18