Working Notice Period Risks in BC Employment Law

In British Columbia, when an employer provides working notice of termination, the employment relationship continues until the end of the notice period. Employees must continue performing their duties while employers must continue paying wages and benefits. However, a recent decision of the British Columbia Supreme Court highlights significant risks for employees who take certain actions during this working notice period.

At Bay View Law, we frequently advise both employees and employers on termination issues, including the implications of working notice. Understanding your obligations during this transitional time is essential to protecting your rights and avoiding unintended consequences that can affect severance entitlements.

This article explores the legal principles governing working notice in BC, examines a key recent case, and provides practical guidance for employees and employers navigating these situations. Whether you are an employee facing termination or an employer managing a workforce transition, the rules around working notice can have a direct impact on common law reasonable notice and severance pay.

What Is Working Notice in British Columbia?

Under the Employment Standards Act, employers in BC must provide minimum notice or pay in lieu when terminating employment without cause. Many employers choose to provide working notice, meaning the employee continues to work and receive their regular pay and benefits during the notice period.

During working notice, the employment contract remains in full force. Employees are expected to perform their usual duties faithfully and in good faith. Employers must treat the employee fairly and continue all contractual obligations.

Common law reasonable notice, which often exceeds ESA minimums, is determined by factors such as age, length of service, character of employment, and availability of similar employment. Actions taken during the working notice period can influence whether an employee receives the full amount of reasonable notice they might otherwise be entitled to.

At Bay View Law, we recommend that employees and employers seek legal advice early when working notice is provided to ensure compliance with both statutory and common law obligations.

The Risk of Repudiation During Working Notice

Repudiation occurs when a party to a contract demonstrates an intention not to be bound by its terms. In the employment context, if an employee repudiates the contract during working notice, the employer may accept that repudiation and terminate the relationship immediately.

Importantly, even if the original notice provided was less than the reasonable notice to which the employee was entitled, repudiation by the employee can limit their damages to the difference between the notice provided and the reasonable notice period. This can substantially reduce the employee’s overall recovery.

Courts carefully examine the employee’s conduct to determine whether it amounts to repudiation. Not every disagreement or complaint will qualify. The conduct must go to the root of the contract and demonstrate a clear intention to no longer be bound by it.

Recent BC Supreme Court Decision on Lawsuit During Working Notice

In Adrain v. Agricom International Inc., 2025 BCSC 1842, the court addressed the issue of an employee commencing a wrongful dismissal action while still working during a notice period.

The employee had approximately 30 years of service and was provided with 13 months of working notice. During the notice period, after sending demand letters, the employee filed a lawsuit claiming insufficient notice. The employer then terminated the employment immediately, taking the position that the lawsuit constituted repudiation of the employment contract.

The court found that commencing the lawsuit during the working notice period amounted to repudiation, even though the employee’s actions did not constitute just cause for dismissal. The employee was ultimately awarded 24 months of reasonable notice. However, because of the repudiation, damages were limited to the difference between the 24 months and the working notice that had already been provided and worked.

This outcome illustrates how strategic decisions during the working notice period can have a direct impact on an employee’s severance entitlement. The case serves as an important reminder for BC employees to carefully consider the timing of any legal action.

Key Takeaways from the Decision for Employees

Employees in BC should be aware of several important principles when receiving working notice:

Continuing to work during the notice period is generally required to preserve full rights to reasonable notice.
Commencing legal proceedings while still employed and working under notice can be viewed as repudiation.
Repudiation can reduce the damages recoverable even where the employer’s original notice was inadequate.
Reasonable efforts to mitigate damages by seeking new employment remain important.
Discretionary bonuses may not form part of the damages calculation.

At Bay View Law, we advise employees to consult with an employment lawyer before taking steps such as sending demand letters or commencing an action while still employed. Early advice can help preserve your full entitlement to severance.

For a quick estimate of your potential severance, try our free BC Severance Pay Calculator at bvlaw.ca/severance-pay-calculator/.

Practical Tips for Employees Receiving Working Notice

If you have received working notice in British Columbia, consider the following steps:

Continue performing your duties to the best of your ability.
Document all communications regarding the termination.
Avoid actions that could be interpreted as refusing to work or undermining the employment relationship.
Seek legal advice promptly from an experienced BC employment lawyer.
Begin your job search early, as mitigation efforts will be scrutinized.

Consulting Bay View Law early allows us to assess the adequacy of the notice provided and advise on the safest way to protect your interests without risking a finding of repudiation.

Considerations for Employers Providing Working Notice

Employers also face important obligations and opportunities when providing working notice:

Ensure the working notice complies with both the Employment Standards Act and any contractual requirements.
Treat the employee fairly and professionally during the notice period to avoid claims of bad faith.
Be prepared to address any employee conduct that may amount to repudiation.
Document performance and any issues that arise during the notice period.
Consider whether pay in lieu of notice might be preferable in certain situations.

Bay View Law assists employers in drafting clear termination communications and navigating the complexities of working notice arrangements to minimize legal risk.

How Repudiation Affects Severance Calculations in BC

Severance entitlements in British Columbia are determined primarily by common law reasonable notice unless a valid contractual termination clause limits that entitlement. Factors from Bardal v. Globe & Mail Ltd. (age, length of service, character of employment, and availability of similar employment) continue to guide the analysis.

When an employee is found to have repudiated the contract during working notice, courts may limit damages to the shortfall between the notice provided and the reasonable notice period. This effectively reduces the financial exposure for the employer and the recovery for the employee.

This principle underscores the importance of obtaining timely legal advice. An employee who believes the provided notice is insufficient should understand the potential consequences of immediate legal action versus waiting until the end of the notice period.

Other Conduct That May Constitute Repudiation

Beyond commencing litigation, other employee actions during working notice may be viewed as repudiation. These can include:

Refusing to perform assigned duties.
Engaging in competitive activities.
Disclosing confidential information.
Behaving in a manner that destroys the relationship of trust.

Courts assess the totality of the circumstances. Isolated incidents or minor disagreements are unlikely to constitute repudiation. The conduct must clearly demonstrate an intention not to be bound by the contract.

Employees should maintain professionalism throughout the notice period. Employers should avoid using minor issues as a pretext for claiming repudiation without strong evidence.

Interaction with Employment Standards Act Requirements

The Employment Standards Act sets minimum notice and severance requirements that cannot be contracted out of. However, common law reasonable notice generally provides greater protection for longer-serving employees.

Actions during working notice do not typically affect ESA entitlements directly. However, they can have a significant impact on the additional common law damages an employee may recover through a civil claim.

Bay View Law regularly assists clients in understanding the interplay between statutory minimums and common law rights in termination scenarios.

When to Seek Legal Advice

Both employees and employers should consider consulting legal counsel at the outset of a termination with working notice. For employees, early advice helps identify whether the notice is adequate and what steps can be taken safely. For employers, advice can help structure the termination to reduce the risk of protracted litigation.

Particular caution is warranted where the employee has long service, is in a senior role, or where there are concerns about the sufficiency of the notice provided.

Bay View Law offers practical, cost-effective advice tailored to the specific circumstances of each client. Our focus on BC employment law ensures that the guidance you receive is directly relevant to your situation.

Common questions we receive include whether an employee can negotiate a better severance package during working notice, whether certain communications could be seen as repudiation, and how to document mitigation efforts effectively.

Conclusion

The decision in Adrain v. Agricom International Inc., 2025 BCSC 1842 serves as an important reminder of the risks associated with certain actions during a working notice period in British Columbia. Employees must balance the desire to protect their rights with the need to fulfill ongoing contractual obligations.

By understanding these principles and obtaining timely advice from an experienced BC employment lawyer, both employees and employers can navigate working notice periods more effectively and minimize unnecessary legal disputes.

At Bay View Law, we are committed to helping our clients understand their rights and obligations under BC employment law. Our goal is to provide clear, practical guidance that protects your interests whether you are facing termination or managing workforce changes.

For personalized advice on working notice period risks or any BC employment law matter, contact Bay View Law at bvlaw.ca or call our team today.