Quitting before end of notice period doesn’t cancel right to damages for inadequate notice: Court

Employee quit rather than working during notice period that was too short
|employmentlawtoday.com|Last Updated: 04/26/2012

A fired employee’s entitlement to reasonable notice was not derailed by the employee’s refusal to work during the notice period he was given, the British Columbia Court of Appeal has ruled.

Raymond Giza was a bus driver for Sechelt School Bus Service in Sechelt, B.C. In June 2009, Giza pushed for a wage increase and the company’s owner, Randy Gould, agreed to a wage review that fall. They also discussed improvements needed to Giza’s behaviour.

In September 2009, Giza was assigned a different bus route that required him to work 30 minutes later in the afternoon. Giza wanted the bus to leave the school at 3:15 p.m. but school administrators wanted him to stay until 3:25 p.m. Giza then spoke to school officials about the departure time, which Gould felt was inappropriate. Gould called Giza at home to reiterate the later departure time, but Giza became argumentative and the call didn’t go well.

Gould had spoken to Giza about his attitude problems but he felt when Giza went to school administrators about the departure time, it was the last straw. On Sept. 30, 2009, Gould put Giza’s paycheque and a letter of termination in Giza’s bus. The letter stated Giza would be terminated effective Nov. 6, 2009, with the five weeks’ notice required by the B.C. Employment Standards Act. When Giza read the letter, he immediately drove his bus back to the terminal and went home. He didn’t return.

Giza filed for wrongful dismissal and the B.C. Supreme Court found the five weeks’ notice was inadequate, considering Giza had worked for Sechelt School Bus Service for five years, since 2004. However, the court found Gould did not repudiate the employment agreement because he was under the mistaken impression that the statutory minimum was enough.

The court also found since Giza left work immediately and didn’t fulfill the notice period, he was the one who repudiated the employment agreement. There was no reason Giza couldn’t have continued to work through the notice period, said the court, and instead he quit. As a result, Giza wasn’t entitled to pay in lieu of notice.

Giza appealed to the B.C. Court of Appeal, which saw things a little differently. While both courts agreed the company’s conduct did not constitute constructive dismissal, the Court of Appeal found failing to work during the notice period did not necessarily cause Giza to lose his entitlement to reasonable notice.

The Court of Appeal found that though Giza repudiated the employment contract after he received his notice of termination, he was still entitled to damages because his employer breached the employment contract first by giving him inadequate notice. Sechelt School Bus Service was ordered to pay Giza five months’ pay in lieu of notice, equal to $9,690.

“(Giza’s) failure to work during the notice period was a repudiation that brought an end to the employment relationship and the ongoing rights and obligations of the parties under it,” said the Court of Appeal. “That repudiation did not take away (Giza’s) cause of action for damages in lieu of notice or (the company’s) right to have (Giza’s) services during the notice period that was given because those rights had accrued before the repudiation.”

For more information see:

Giza v. Sechelt School Bus Service Ltd., 2012 CarswellBC 22 (B.C. C.A.).

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