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Failure to work notice period did not take away right to sue for damages

Here’s an interesting case from the British Columbia Court of Appeal. When an employer left a termination letter on a bus driver’s seat for him to find, the Court found there was inadequate notice of termination. The fact that the bus driver left work immediately instead of working the notice period did not negate his right to sue for damages in lieu of notice. Ultimately, the employee was entitled to reasonable notice of termination and disbursements. However, his notice period was reduced by the amount of time he should have worked the notice with the employer.

Undoubtedly, the employee was upset that the employer had simply left the termination letter on the seat of his bus. He read the letter providing him with five weeks’ working notice, drove the bus to the terminal, left work permanently and subsequently sued for wrongful dismissal.

The trial judge found that the five weeks’ notice was found to be inadequate, but the employee had repudiated his employment contract by failing to work after notice was given. As a result, the employee was not entitled to any damages.

However, the Court of Appeal disagreed with the trial judge’s decision and found that the employer breached the employment contract by failing to give adequate notice of termination. Also, this breach gave the employee a cause of action for damages in lieu of reasonable notice.

In light of the circumstances, the period of reasonable notice for which damages could be recoverable was the period of reasonable notice to which the employee was entitled, less the period of notice actually given during which the employee could have and should have worked and been paid.

The Appeal Court made a point of stressing that the employee’s failure to work during the notice period was a repudiation that brought to an end the employment relationship and the ongoing rights and obligations of the parties under it. Yet that repudiation did not take away the employee’s cause of action for damages in lieu of notice or the employer’s right to have the employee’s services during the notice period that was given because those rights had accrued before the repudiation.

Consequently, the employee was awarded five months’ notice after deducting the notice he could have worked and be paid. The Court assessed the typical factors, including the age of the employee (61), the length of his tenure (five years), his work history as a professional forester, and his attempts to find alternative employment after the termination (little success).

Do you agree that employees who leave permanently and who do not work the notice period should still be able to sue for damages for reasonable notice? Do you think it is a reasonable compromise that the amount of notice is reduced by the notice that should have been worked?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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