Working Notice

General Principles

Working notice is provided where an employer informs an employee that the employment relationship will end on a specified future date while requiring the employee to continue working up until that future date.

The period between the date that notice is provided and the specified future date of dismissal is referred to as the “working notice period”. The employment contract will be deemed terminated at the end of the working notice period.¹

Working notice serves the interests of both employers and employees by enabling the employer to reduce or eliminate its potential liability for wrongful dismissal damages while affording the employee an opportunity to continue earning a wage as they begin searching for other employment. However, courts have recognized that working notice is not always workable in practice, as the employment relationship often changes for the worse once working notice has been provided.²

1. Suleman v British Columbia Research Council (1990), 1990 CanLII 746 (BC CA), at p. 141. ↩
2. Reid v Allied Plumbing Heating & Air Conditioning Ltd, 2025 BCSC 1679, at para. 56. ↩

Application

Employee Refusing to Work during Working Notice Period

Upon receiving insufficient working notice, an employee may refuse to work during the working notice period, immediately resign, and claim damages for wrongful dismissal. Courts in Ontario have held that the employer’s provision of insufficient working notice will constitute a repudiation of the contract sufficient to ground a claim for wrongful dismissal.³ Courts in British Columbia have held that the employer’s provision of insufficient notice will instead constitute a breach of contract sufficient to ground a claim for wrongful dismissal, and that whether the employer’s act also constitutes a repudiation is a question of fact based on the circumstances surrounding the provision of notice.⁴

An employee may resign during the working notice period and still recover damages for wrongful dismissal where the amount of working notice provided was insufficient.⁵ Although the employee’s refusal to work during the notice period would constitute a repudiation of the employment contract, it would not extinguish the employee’s accrued entitlement to reasonable notice.⁶

Changes to the Terms of Employment during Working Notice Period

The employment contract remains “alive” during the working notice period.⁷ An employer that unilaterally changes a fundamental term of employment during the working notice period may be liable for constructive dismissal.⁸ In such a situation, the employee would not be obligated to mitigate by continuing to work for the employer where there the workplace atmosphere is one of hostility, embarrassment or humiliation.⁹

Employee Terminated for Cause during Working Notice Period

An employee provided with working notice continues to remain bound by the express and implied obligations of the employment contract throughout the course of the working notice period.¹⁰ An employee’s breach of their continuing obligations during the working notice period may be grounds for summary dismissal.¹¹

Employee Unable to Work due to Illness

An employer will not receive credit for any working notice provided to an employee who is unable to work during that working notice period due to illness.¹² To do so would create a situation where the employer may provide working to notice to an ill employee who is unable to work and/or make efforts to find another job such that the employer can avoid having to pay any damages during that time.¹³ This would be contrary to the underlying policy objective of both the common law and employment standards legislation to protect vulnerable employees who are ill.¹⁴

3. Aasgaard v Harlequin Enterprises Ltd, [1993] OJ No 1484, at para. 17. ↩
4. Zaraweh v Hermon, Bunbury & Oke, 2001 BCCA 524, at para. 31; Giza v Sechelt School Bus Service Ltd, 2012 BCCA 18, at para. 28. ↩
5. Zaraweh v Hermon, Bunbury & Oke, 2001 BCCA 524, at paras. 35-36. ↩
6. Giza v Sechelt School Bus Service Ltd, 2012 BCCA 18, at para. 41. ↩
7. Suleman v British Columbia Research Council (1990), 1990 CanLII 746 (BC CA), at p. 141. ↩
8. See, for example, Reid v Allied Plumbing Heating & Air Conditioning Ltd, 2025 BCSC 1679. ↩
9. Evans v Teamsters Local Union No 31, 2008 SCC 20, at para. 30. ↩
10. Kalaman v Singer Valve Co (1997), 1997 CanLII 4035 (BC CA), at para. 101. ↩
11. Kalaman v Singer Valve Co (1997), 1997 CanLII 4035 (BC CA), at para. 101; see, for example, Kontopidis v Coventry Lane Automobiles Ltd, 2004 CanLII 16875 (ON SC) where the Court found just cause for the termination of an employee who had developed attendance issues during a four-month working notice period and failed to comply with the employer’s directions to provide written notice before leaving the premises during working hours. ↩
12. Morris v ACL Services Ltd, 2014 BCSC 1580, at para. 81. ↩
13. Morris v ACL Services Ltd, 2014 BCSC 1580, at para. 89. ↩
14. Morris v ACL Services Ltd, 2014 BCSC 1580, at para. 92. ↩