We’re all familiar with the classic scenario when the response to a termination by an employer prompts the response, “You can’t fire me. I quit!”. But after the dust settles from the initial blow-up, what happens next? A recent case from the British Columbia Court of Appeal is instructive.
In Giza v. Sechelt School Bus Service Ltd. , the B.C. Court of Appeal dealt with the not-for-cause termination of Raymond Giza who was employed as a part-time school bus driver. There were no agreed terms and conditions of employment governing the amount of notice to which Mr. Giza might be entitled as an employee with five years’ service. The owner of the Company determined that Mr. Giza’s statutory entitlement was five weeks’ notice and a letter was left on the bus seat for Mr. Giza advising that his employment would be ending at the end of five weeks of working notice.
Following his review of the letter, an unhappy Mr. Giza drove the bus back to Company and left it in the lot. He did not finish his shift and did not work the remainder of the five week notice period. Mr. Giza eventually sued for wrongful dismissal (amongst other claims) and, at trial , it was found that the statutory notice provided was inadequate and that a terminated employee in these circumstances was entitled to reasonable notice. Nevertheless, Mr. Giza had his claim for wrongful dismissal damages dismissed on the basis that by quitting prior to the end of the working notice he had repudiated the employment agreement and was not entitled to damages for wrongful dismissal. In this regard, the trial judge quoted from an earlier decision of the B.C. Court of Appeal as follows:
In other words, the contract of employment is not terminated until the end of the notice period and during that period the employer has the right to the services of the employee. It follows that the employee must remain ready and willing to carry out the contract of service…
In its decision reversing the trial decision, the Court of Appeal found that trial judge had erred in concluding that Mr. Giza lost his entitlement to reasonable notice by failing to work during the working notice provided to him. As stated by the Court:
In classic terms, [Mr. Giza] evidenced an intention not to be bound by the contract, but did not deprive him of his right to damages for the [Company’s] breach of contract in giving him inadequate notice.
In the result, the Court of Appeal found that a reasonable notice period would have been six months but the damages were reduced to reflect the period of working notice which Mr. Giza elected not to work.
A couple of observations are appropriate for employers considering the impact of this decision. First, had the Company provided Mr. Giza with reasonable working notice (as opposed to the minimum statutory notice) and he had walked away from his employment, he would have been entitled to no damages. Second, while the Company ended up paying damages for its breach of the contractual relationship, it would theoretically have been open to the Company to have counter-claimed for any damages it may have incurred as a result of Mr. Giza’s subsequent breach during the notice period. Finally, all of this underlines the importance of having written employment agreements in place with termination provisions as it provides certainty and guidance to both parties when an employment relationship is coming to an end.
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26 Sep 2022
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