Failure to provide adequate notice did not constitute repudiation of the employment contract
In mid-April 1999 Jhaleh Zaraweh was informed that her employment with Hermon, Bunbury & Oke (the “partnership”) would be terminated in two months. After some discussions her working notice was extended to three months ending July 31, 1999. Ms. Zaraweh considered this inadequate notice and expressed her dissatisfaction to the partnership. In response, on June 2, 1999, the partnership extended the notice period to August 31, 1999.
Ms. Zaraweh was still not satisfied with the amount of notice given and on June 29, 1999, filed a claim against the partnership for wrongful dismissal. The claim was served on the partnership on July 5, 1999. Ms. Zaraweh continued to work as scheduled after the partnership had been served. On July 9, 1999, Ms. Zaraweh was sent home by the partnership and her employment was finished.
The matter proceeded by summary trial. The partnership defended the action on the basis that the notice provided was reasonable, and that in any event, Ms. Zaraweh had repudiated the contract by commencing her action while she was still employed and was therefore not entitled to any damages.
The trial judge found that the notice of four months was inadequate and held that ten months was appropriate notice in the circumstances of the case. With respect to commencing the action while still employed, the trial judge held that Ms. Zaraweh did not treat the contract at an end by commencing the action. She continued to work and only stopped working because she was told not to return. He held that an employee who does no more than issue a writ and file a pleading alleging a wrongful dismissal when given working notice that is less than reasonable is not denied a remedy if she is prepared to continue working.
The partnership appealed the finding of the trial judge to the British Columbia Court of Appeal.
With respect to the assessment of the appropriate notice period, the Court of Appeal found no reason to interfere with the conclusion reached by the trial judge. Although the notice period was at the upper end of the appropriate range, there was no reversible error in the approach taken or the conclusion reached by the trial judge. Ms. Zaraweh was 54 years of age at the time of trial. She had a long history of service with the partnership, performing broad accounting and clerical functions with little supervision and had no computer training.
The Court then considered the effect of bringing the action during the period of working notice. The partnership argued that, as a rule of law, the only remedy for an employee who is given inadequate working notice is to work out the notice period and commence an action after the employment is terminated. Commencement of an action during the period of working notice is conduct incompatible with the employment relationship and constitutes repudiation of the contract of employment.
The partnership further argued that provision of inadequate notice is not repudiation of the employment contract, but rather a mere breach of contract actionable only after the employment is ended.
Ms. Zaraweh submitted that at the time the action was commenced, the partnership had already repudiated the contract by failing to comply with the implied term requiring reasonable notice of termination. Her issuance of the claim constituted acceptance of the repudiation and her continued attendance at work constituted mitigation of damages.
The Court held that the act of issuing the claim and serving it upon the partnership was conduct incompatible with continuation of the contract of employment. Absent a prior repudiation by the partnership, such actions must be viewed as unjustified repudiation by Ms. Zaraweh.
The Court was of the view that although the notice provided was inadequate, it was not a repudiation of the contract. The partnership did not intend to repudiate the contract. It engaged in discussions with Ms. Zaraweh and even extended the notice period. The extent of notice for persons in Ms. Zaraweh’s position is not well defined, thus one cannot say that the appropriate notice was so obvious that the inadequate notice necessarily carried the brand of repudiation.
The Court held that the breach of contract by provision of inadequate notice gave Ms. Zaraweh a cause of action for damages but did not constitute repudiation. The entitlement to sue for breach of contract did not die with Ms. Zaraweh’s repudiation of the employment relationship.
Ms. Zaraweh was thus entitled to damages based on the difference of the notice provided, July 31, 1999, and the period of reasonable notice, ten months.
For more information:
• Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524.
Ms. Zaraweh was still not satisfied with the amount of notice given and on June 29, 1999, filed a claim against the partnership for wrongful dismissal. The claim was served on the partnership on July 5, 1999. Ms. Zaraweh continued to work as scheduled after the partnership had been served. On July 9, 1999, Ms. Zaraweh was sent home by the partnership and her employment was finished.
The matter proceeded by summary trial. The partnership defended the action on the basis that the notice provided was reasonable, and that in any event, Ms. Zaraweh had repudiated the contract by commencing her action while she was still employed and was therefore not entitled to any damages.
The trial judge found that the notice of four months was inadequate and held that ten months was appropriate notice in the circumstances of the case. With respect to commencing the action while still employed, the trial judge held that Ms. Zaraweh did not treat the contract at an end by commencing the action. She continued to work and only stopped working because she was told not to return. He held that an employee who does no more than issue a writ and file a pleading alleging a wrongful dismissal when given working notice that is less than reasonable is not denied a remedy if she is prepared to continue working.
The partnership appealed the finding of the trial judge to the British Columbia Court of Appeal.
With respect to the assessment of the appropriate notice period, the Court of Appeal found no reason to interfere with the conclusion reached by the trial judge. Although the notice period was at the upper end of the appropriate range, there was no reversible error in the approach taken or the conclusion reached by the trial judge. Ms. Zaraweh was 54 years of age at the time of trial. She had a long history of service with the partnership, performing broad accounting and clerical functions with little supervision and had no computer training.
The Court then considered the effect of bringing the action during the period of working notice. The partnership argued that, as a rule of law, the only remedy for an employee who is given inadequate working notice is to work out the notice period and commence an action after the employment is terminated. Commencement of an action during the period of working notice is conduct incompatible with the employment relationship and constitutes repudiation of the contract of employment.
The partnership further argued that provision of inadequate notice is not repudiation of the employment contract, but rather a mere breach of contract actionable only after the employment is ended.
Ms. Zaraweh submitted that at the time the action was commenced, the partnership had already repudiated the contract by failing to comply with the implied term requiring reasonable notice of termination. Her issuance of the claim constituted acceptance of the repudiation and her continued attendance at work constituted mitigation of damages.
The Court held that the act of issuing the claim and serving it upon the partnership was conduct incompatible with continuation of the contract of employment. Absent a prior repudiation by the partnership, such actions must be viewed as unjustified repudiation by Ms. Zaraweh.
The Court was of the view that although the notice provided was inadequate, it was not a repudiation of the contract. The partnership did not intend to repudiate the contract. It engaged in discussions with Ms. Zaraweh and even extended the notice period. The extent of notice for persons in Ms. Zaraweh’s position is not well defined, thus one cannot say that the appropriate notice was so obvious that the inadequate notice necessarily carried the brand of repudiation.
The Court held that the breach of contract by provision of inadequate notice gave Ms. Zaraweh a cause of action for damages but did not constitute repudiation. The entitlement to sue for breach of contract did not die with Ms. Zaraweh’s repudiation of the employment relationship.
Ms. Zaraweh was thus entitled to damages based on the difference of the notice provided, July 31, 1999, and the period of reasonable notice, ten months.
For more information:
• Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524.
