Working through the notice period

For five years, Joe worked as a bus driver for a company that serviced local schools. He had been having some disagreements with his boss about whether or not he was owed a raise and the boss was upset with him for talking directly to a school administrator an issue over the time his bus left at the end of the day.
One early September morning Joe arrived at his bus to find a letter on the seat that said, “This letter will serve as your official notice of termination of employment as of November 6th. You will be given your final pay cheque that day and your Record of Employment will follow within the prescribed period.” The letter went on to state that the five weeks’ notice of termination Joe was getting was in compliance with the Employment Standards Act.
Once Joe had read the letter, he drove the bus back to the shop, handed in his keys and went home.
Joe sued for wrongful dismissal. The judge decided that the five weeks’ working notice Joe was given was insufficient given his seniority, age, and position but said that Joe could not get any damages at all since he had failed to work the five weeks out. The judge decided that Joe had repudiated the contract and was entitled to nothing.
Joe appealed and a higher court did the right thing.
Joe was 61 years old at the time of his termination and the courts will assume that it is much more difficult for older employees to find reasonable alternative employment. As a result, they will usually be awarded more notice than a similarly situated younger employee.
The higher court decided that Joe was entitled to six months’ notice but deducted the money he could have made if he had worked out the five-week working notice period.
There is a reason it is called pay in lieu of notice. If an employer gives you advanced working notice, they don’t have to pay you in lieu of it…they gave it to you.
Everyone assumes that when you are terminated, you are walked out the door and get a severance offer. I can’t count how many clients I’ve seen over the years who were upset and outraged by the fact that they had to stay and work out some or all of their notice period.
Most employers, once they’ve decided to terminate the relationship, do walk you out the door and offer money instead of working notice. They figure you’ll be bitter and bad for the workplace if they let you stay in the job and often they feel some guilt about the termination and don’t want to have to look you in the face every day.
But there are often circumstances where employers give working notice. Unlike Joe’s case, most often I see it where a company is closing a facility and there are mass layoffs. The company is less concerned about you taking the termination personally since everyone knows that it has nothing to do with the workers who were laid off if a plant or warehouse is being closed altogether.
When you are being terminated, however, because the boss doesn’t like you anymore, it is very difficult to stick around and work during that notice period. But unless the boss is doing something outrageous, like screaming at you every day, your lawyer is going to tell you that if you go home and don’t work out the notice period, you are likely giving up the right to any monies for the period during which you could have worked.
In Joe’s case, the notice period to which he was entitled was far more than the five weeks’ notice offered. He lost the five weeks’ pay but not the whole show.
As published in The Hamilton Spectator, May 14, 2012