Vacation is part of working notice, says court

Vacation a normal part of work and therefore should be part of working notice, court of appeal rules

An Alberta employee’s vacation time can be included as part of his notice of termination, the Alberta Court of Appeal has ruled.

Michael Deputat, an engineering technician who had worked for Edmonton’s public school board for 24 years, was given notice in May 2003 that his job would be eliminated one year later in May 2004. He decided to stay on the job and work for the one-year notice period.

At the time of his notice, Deputat had 47 days of vacation available and an additional 16 days of leave in lieu of overtime. Since the board had a policy that employees couldn’t store more than 30 days of unused holidays, he used those days during the year of his working notice, but accrued another 31 days of vacation and five days of lieu time, for which he was paid on his last paycheck.

Deputat brought a successful wrongful dismissal action against the school board in which the Alberta Court of Queen’s Bench ruled he was entitled to 18 months’ notice, or an additional six months more than he was given. The court also found vacation entitlement shouldn’t be included in the notice period as it amounted to less notice. It ruled vacation time should be added on to the end of the notice, either as time or pay in lieu. This resulted in Deputat being awarded an additional 63 days’ compensation.

The school board appealed the awarding of extra compensation for vacation time. The Court of Appeal disagreed with the trial court’s finding that vacation time should be separate from working notice.

“Notice is valid regardless of whether the employee is then actually working at his desk, is at home outside office hours, or is on annual vacation,” the Court of Appeal said. “The purpose of notice of impending termination is not to pay; it is to let the employee arrange his affairs, especially to find a new job.”

The Court of Appeal ruled regular vacation time and holidays are part of the normal work and thus are part of the working notice. It reduced the total damages by one-half, to $18,500. See Deputat v. Edmonton School District No. 7, 2008 CarswellAlta 24 (Alta. C.A.).

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