Working Notice as a Practical Option for Employers

Types of Notice in B.C. Employment Law

In British Columbia, when a non-unionized employee is dismissed without cause, the employer must provide “notice” (the exact amount of notice required depending on a variety of factors).There are two main ways to do this:

• Pay in lieu of notice – employment ends immediately, and the employer pays the wages that would be owed during the applicable notice period.

• Working notice – the employee continues working for the applicable notice period, with pay and benefits maintained until the end date.

Employers generally may also combine these approaches.

Each method carries advantages and drawbacks.

Pay in lieu offers certainty and avoids ongoing workplace tension but requires an immediate payout and the employer gets no productive work in return.

The working notice option reduces the immediate financial burden (particularly where the required notice is large) and allows the employer to receive productive work during the notice period. It also provides a transition period for employees which can be helpful for them finding new employment – a common view is that “it’s easier to find a job when you have a job”.

However, the use of working notice is delicate and requires careful handling. During a notice period, employees may become disengaged, internal relationships can strain, and a disgruntled employee may be disruptive and bad for workplace morale. The work received during the notice period may not be worth the hassle for the employer.

Further, any employment termination may give rise to legal dispute and litigation – use of working notice does not eliminate that risk (and in some cases, may increase it). Litigation commenced during a working notice period can further complicate the ongoing employment relationship and the parties’ mutual obligations. The recent decision in Adrain v. Agricom illustrates both the benefits and risks of working notice.

The Case in Detail

In Adrain v. Agricom International Inc., the Court considered whether a long-serving employee was entitled to damages after she was given working notice and sued her employer for wrongful dismissal during the working notice period.

The plaintiff had worked with Agricom International Inc. (“Agricom”) for nearly 30 years, reporting directly to the company’s president and founder. After workforce reductions in 2019, the plaintiff and the president were the company’s only employees, making the plaintiff central to daily operations.
In April 2025, the president announced plans to retire and offered to sell the company to the plaintiff for a nominal amount. Discussions on this offer did not move forward.

Shortly after, Agricom issued a written notice to the employee stating that her employment would end on May 31, 2026, providing her 13 months of working notice. The notice confirmed that salary and benefits would continue until the end date.

The plaintiff, however, believed the offered notice was inadequate given her age, length of service, and position. Through counsel, demand letters were sent requesting 24 months’ severance. When Agricom did not agree, the plaintiff filed a wrongful-dismissal claim in May 2025, while still employed and during the working notice period.

Agricom responded by treating the lawsuit as a repudiation of the employment contract. On June 17, 2025, the president delivered a letter accepting the repudiation and terminating the relationship effective immediately. Importantly, Agricom continued to pay salary and benefits until mid-September 2025 on a without-prejudice basis, which the Court later credited against damages.

At trial, the Court addressed three main issues.

First, it rejected Agricom’s argument that the demand letters and claim constituted just cause for the employee’s dismissal. In the context of a planned business closure, those actions were found to be a reasonable effort to negotiate severance and not incompatible with continued employment.

The Court did note that commencing an action against the employer during the working notice period might constitute just cause for dismissal under certain circumstances but that this analysis was fact-dependent and cause was not made out in this case.

Second, the Court considered the effect of the lawsuit being filed during the working notice period. On this point, appellate authority is clear: commencing a wrongful dismissal claim during a valid working notice period constitutes repudiation of the employment contract, unless the employer has already repudiated or constructively dismissed the employee by breaching their terms of employment.

See: Suleman v. British Columbia Research Council, 1990 CanLII 746 (BC CA), 52 B.C.L.R. (2d) 138 (B.C.C.A.), (1990) CanLII 746 (B.C.C.A.);

(2) Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524; and

(3) Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18.

The Court held that Agricom had not repudiated the agreement by giving working notice and otherwise had maintained the terms of employment (continuing wages and benefits, making not unilateral changes to her work duties) and thus the plaintiff’s choice to file a lawsuit ended the employment relationship prematurely.

Finally, the Court calculated damages. While it accepted that reasonable notice for a long-service employee in these circumstances was 24 months, it deducted the 11.5 months of working notice the plaintiff did not work following repudiation. It then applied a one-month contingency reduction to account for the possibility of future employment and credited the 4.5 months of salary and benefits Agricom had already paid. The plaintiff’s claims for discretionary bonuses were dismissed, as the evidence showed they were not guaranteed or integral to compensation.

The final award was $47,254.70 – significantly less than the six-figure claim advanced.

Lessons for Employers

This case illustrates both the advantages and limitations of working notice.

• Working notice can meaningfully reduce liability. Agricom’s decision to provide 13 months of notice anchored the damages assessment and ultimately lowered the award well below a full 24 months.

• Demand letters are not, on their own, cause. Employers should avoid treating legal correspondence from an employee as misconduct warranting summary dismissal.

• Suing during working notice is repudiation. If an employee commences wrongful-dismissal litigation mid-period, the employer may accept the repudiation, cutting off prospective obligations while remaining liable for accrued shortfall.

• Clear documentation matters. Agricom’s written notice with a fixed end date, and its characterization of continued salary as without-prejudice payments, allowed it to obtain full credit for amounts already advanced.

• Bonus claims require evidence. The plaintiff’s discretionary bonus claims failed because there was no contractual entitlement and the history of inconsistent payments undermined the argument that bonuses were integral.

Conclusion

For the reasons explained above, most employers prefer the pay in lieu option when terminating employment. However, as underscored by this decision, working notice can be an effective tool in the right circumstances. To use it effectively, employers should:

1. Provide clear written notice with an unequivocal end date (and that end date must not change).

2. Continue all terms of employment through the notice period – though making some accommodation to allow the employee to look for new work, attend interviews, etc.

3. Treat employee communications professionally even if things become contentious. The employer can continue to performance manage/discipline during notice period but should be careful not to overreact to legal demands.

4. Consider accepting repudiation if litigation is commenced during working notice.

5. Carefully document all payments made after termination.

If your organization is considering restructuring, reductions in force, or other employment termination (including the use of working notice), or navigating a wrongful dismissal claim, it is important to have experienced guidance. The Employment Law Team at Boughton Law regularly advises employers on terminations, notice strategies, and litigation risk. Please contact us to discuss how these principles may apply to your workplace.