Our Court of Appeal has in a recent decision involving a Sechelt bus driver caused me to rethink obligations on the giving and receiving of working notice of termination.
In the case the employer and employee disagreed on the employee’s hours. In frustration the employer gave five weeks’ notice of termination. The employee had five years’ service and was entitled to more notice than that although it is unclear whether that motivated his reaction – which was to abandon his employment.
After the notice period expired he sued for vacation pay and damages for wrongful dismissal. I would have likely told this employee that abandoning one’s employment is akin to resigning or repudiating the contract of employment. I would have thought that it could disentitle him to any severance pay. Most lawyers would have offered the conservative advice that he work out the notice period and then sue for damages for wrongful dismissal.
The Court of Appeal however reasoned that it was the employer who repudiated the contract by giving less notice than it ought to have. Therefore, the employee was entitled to withdraw his services. The court awarded six months’ severance pay but deducted the period of the working notice.
This case will set the standard for obligations of employees having received working notice unless or until it is overturned. What is the “take away” you ask?
1) When deciding on giving working notice an employer must accept that if he cannot predict with some degree of perfection what a court would award – the recipient employee can withdraw his services without jeopardizing his claim for severance pay (beyond the period of notice given)
2) Whatever notice given by the employer will however be deducted from the Employee’s ultimate entitlement (if given correctly).
3) If the sudden departure of an employee who is given insufficient notice causes damage to the employer it would seem that the employer would have no recourse against the employee since the employer had repudiated the contract of employment.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at [email protected].
