Facts:
Mr. Giza worked for 5 years as a school bus driver until, after a rough patch with his employer (not alleged to be just cause) the employer served 5 weeks’ working notice in purported compliance with the BC Employment Standards Act. Mr. Giza decided to cease work on the same day, instead of working through the 5 week notice period, and commenced an action for wrongful dismissal damages.
At trial, the action was dismissed. The trial judge held that although 5 weeks notice was insufficient, not complying with the employer’s obligation to give common law reasonable notice, the plaintiff was required to work though the notice period, and only after could he sue for damages.
The appeal court referred to the trial reasons where it was written:
[11] At para. 36 of her reasons, the judge quoted from this Court’s decision in Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524 (CanLII), 2001 BCCA 524, B.C.L.R. (3d) 223 at para. 14:
The common law provides that, in cases of indefinite hiring without written contract establishing terms of dismissal, an employer may terminate the employment without cause by giving reasonable notice to an employee that the employment will terminate. During this time the employee is required to work and to conduct himself or herself in a fashion compatible with the employment relationship.
[12] At para. 39, the judge had this to say:
In this case, the 5 weeks of notice was not adequate. [The respondent] breached the employment contract by giving Mr. Giza too little notice. The legal effect of giving inadequate notice depends on all the facts.
Appeal:
The BC Court of Appeal allowed the appeal.
The appeal court accepted the trial judge’s analysis of the obligation of an employee who receives insufficient notice. The employee in those circumstances cannot normally treat the inadequate notice as a repudiation of the employment contract, but is rather required to work through the notice period before commencing a wrongful dismissal action.
[27] This Court in Zaraweh v. Hermon, Bunbury & Oke made it clear that an employee terminated with notice is required to work during the notice period (para. 14.). Saunders J.A. referred to this Court’s decision in Suleman v. British Columbia Research Council 1990 CanLII 746 (BC CA), (1990), 52 B.C.L.R. (2d) 138, 24 A.C.W.S. (3d) 508, in which Mr. Justice Hutcheon observed at p. 141 that, subject to conduct by the employer amounting to constructive dismissal,
… 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.
Therefore, in leaving his job immediately after notice was given, the employee had acted improperly.
Importantly, though, the Appeal court disagreed with the Trial court as to the effect of the employee’s conduct.
At trial, the court had seen the refusal of Mr. Giza to work through the notice period as a repudiation of the agreement. He was found, in effect, to have voluntarily left his employment – ie. to have quit.
The court of appeal determined that by leaving the job early, the employee had lost his right to complain of any loss of income he could have enjoyed during the notice period, but not his general right to damages. The Appeal Court wrote:
[26] I do not agree with the judge’s conclusion at para. 53 that by failing to work during the notice period, the appellant lost his entitlement to reasonable notice or damages in lieu thereof.
and
[39] In my view, it is clear that the respondent did not constructively dismiss the appellant and that the appellant repudiated the employment contract by failing to work during the notice period. In classic terms, he evidenced an intention not to be bound by the contract, but that did not deprive him of his right to damages for the respondent’s breach of contract in giving him inadequate notice.
[40] In Zaraweh, Saunders J.A. stated at paras. 35 and 36 that
… the breach of contract by provision of inadequate notice gave Ms. Zaraweh a cause of action for damages although it did not constitute a repudiation … . The entitlement to sue did not die with Ms. Zaraweh’s repudiation of the employment relationship.
…
… Ms. Zaraweh was entitled to … damages based on the difference between the notice provided … and the period of reasonable notice … .
[41] In Hadcock v. Georgia Pacific Securities Corp., 2006 BCCA 536 (CanLII), 2006 BCCA 536, 64 B.C.L.R. (4th) 308 at para. 48 this Court, relying on the Supreme Court of Canada’s decision in Guarantee Co. of North America v. Garden Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, explained that although repudiation ends the ongoing rights and obligations of parties under a contract, it does not affect rights and obligations that have accrued. In the present case, the appellant’s right to damages in lieu of reasonable notice had accrued when he was given inadequate notice. His repudiation did not take away that right and it did not take away the right of the respondent to the appellant’s services during the period of notice given.
[42] In summary:
1. the respondent breached its contract of employment by failing to give adequate notice of termination;
2. the respondent’s conduct did not amount to a constructive dismissal, that is, a repudiation by the respondent of the employment relationship; it continued during the notice period;
3. the respondent’s breach gave the appellant a cause of action for damages in lieu of reasonable notice;
4. the period of reasonable notice for which damages could be recoverable is the period of reasonable notice to which the appellant was entitled less the period of notice actually given during which the appellant could have and should have worked and been paid;
5. the appellant’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;
6. that repudiation did not take away the appellant’s cause of action for damages in lieu of notice or the respondent’s right to have the appellant’s services during the notice period that was given because those rights had accrued before the repudiation.
Reasonable Notice at Common Law:
The court itself assessed damages for failure to give reasonable notice at common law, citing Bardal:
[45] The “seminal enunciation” of what length of notice is reasonable at common law derives from Bardal v. The Globe & Mail Ltd. (1960), 24 D.K.R. (2d) 140 (Ont. H.C.J.) at 145, in which McRuer C.J. held that
[t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
This test was adopted by, inter alia, McEachern C.J.S.C. in Ansari v. B.C. Hydro 1986 CanLII 1023 (BC SC), (1986), 2 B.C.L.R. (2d) 33.
[46] An examination of cases reasonably comparable to the present case suggests that the appropriate range of notice is somewhere between three and 11 months. There obviously is considerable variability.
[47] At the time the contract of employment was terminated, the appellant was 61 years of age. He had been employed by the respondent for approximately five years. He had worked previously as a professional forester, but the availability of forestry work had diminished by the time he left this industry and began working as a school bus driver. The appellant has had little success in obtaining alternative employment.
[48] The appellant seeks nine months’ notice. In my view, reasonable notice in this case would have been six months. For the purpose of calculating damages, the period of actual notice during which the appellant could have worked and been paid must be deducted. I would calculate damages based on a notice period of five months.
Summary:
Mr. Giza had acted hastily when he left, having been given inadequate notice. By leaving, he lost the legal right to recover damages for the short notice period given by the employer, but he could still recover damages for a reasonable notice period, if in excess of the actual notice period given by Sechelt. The court set a six month notice period, with no comment as to the “character of employment” factor diminishing the amount of notice required, and the ultimate notice period was in excess of one month per year of service.