IBM filed an appeal, claiming that the judge should have deducted the amount of pension benefits
paid during the notice period from the damages award, which the Court of Appeal dismissed.
IBM's second argument in the appeal was to rely on the decision in Sylvester v. British Columbia, in which it was held that wrongful dismissal damages should be reduced by the amount of disability benefits
paid during the notice period.
The plaintiff had agreed to benefit from periods of increased pay and accepted the risk of periods of without pay, and could not expect to avoid his part of the bargain by receiving only the higher
pay during the notice period.
The company refused to accept the resignations, held them to their notice requirements and suspended them without
pay during those notice periods.
In dismissing the grievance, the Arbitrator held that an entitlement to statutory termination
pay during the notice period is premised on the employee performing actual work, unless the contract of employment says otherwise.
Usually, an employer may choose to terminate an employee by providing «reasonable notice» of termination or payment in lieu equivalent to earning that would have been
paid during the notice period.
Not exact matches
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PERIOD HAS ENDED OR THAT YOUR OBLIGATION TO
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PERIODPERIODPERIOD.
Also, realize that at any time
during this waiting
period, your tenant can rectify the problem, such as
paying the rent owed, which will make the
notice go away.
The employer shall provide the employee or applicant, in a private discussion, the opportunity to dispute the relevance of the information upon which the employer based the adverse employment action, and shall consider any such dispute before making a final decision; (3) if the employee or applicant provides oral or written
notice to the employer
during the 14 day
period set forth in subparagraph (2) that he or she has disputed the accuracy of the consumer report with a consumer reporting agency, the employer shall not take an adverse employment action until the resolution of the dispute under section 58 of this chapter or Section 1681i (a) of chapter 15 of the United States Code, and shall consider the results of any such resolution; (4) ensure that none of the costs associated with obtaining a consumer report are
paid by or passed on to the employee or applicant.
2 (2) In the event we wish to terminate your employment without just cause, we agree that we will give you
notice of the termination of your employment, or at our absolute discretion, we will
pay you, in lieu of such
notice, a severance payment equal to the wages only that you would have received
during the applicable
notice period.
Employers operating in Ontario who «draw the circle» around employee rights and entitlements on termination should carefully review and ensure that their contractual termination clause complies with all aspects of statutory minimum standards, and in particular: (a)
notice or
pay in lieu, (b) benefits continuation
during the
notice period, (c) severance
pay, if applicable, and (d) continued vacation accrual
during the termination
notice period.
The trial judge awarded damages for wrongful dismissal of 15 months»
pay in lieu of
notice, net of Workplace Safety and Insurance Board [«WSIB»] benefits the appellant received
during that
period, and $ 10,000 in damages for breach of the Code.
The court disagreed as the employee continued to be
paid even though his services were not active, and he was still required to be available, should his services be needed,
during the
notice period.
In the contract at hand, the pension contribution and car allowance benefits were not included in the amounts to be
paid during the
period of
notice.
Where a termination clause calls for
pay in lieu of
notice, but does not provide for the payment of benefits
during the
notice period, the entire clause is void as contrary to the Employment Standards Act, 2000.
The plaintiff had secured alternative employment
during his eight - week
notice period but at a much lower rate of
pay.
Notice and severance payments paid by the employer in accordance with the employer's obligations under the Ontario Employment Standards Act, 20001 («ESA») are not subject to the duty to mitigate and, therefore, will not be reduced if the dismissed employee finds new employment during his or her statutory notice p
Notice and severance payments
paid by the employer in accordance with the employer's obligations under the Ontario Employment Standards Act, 20001 («ESA») are not subject to the duty to mitigate and, therefore, will not be reduced if the dismissed employee finds new employment
during his or her statutory
notice p
notice period.
She argued that the termination clause excludes FDI's statutory obligation to make benefits contributions
during the
notice period and it does not satisfy FDI's statutory obligation to
pay severance
pay.
In other words, if a dismissed employee is entitled to 10 months reasonable
notice and 18 weeks»
notice and severance pursuant to the ESA, the court will award the dismissed employee damages representing 10 months»
notice and, presuming the ESA entitlement has been
paid, will reduce the award of damages for the money already
paid to the employee
during the
notice period.
In a final twist, the Court of Appeal took into account the approximately $ 6,000 the company had saved by not having to
pay Mr. Walker
during the one month
notice period.
The Court further concluded that the employment income which Ms. Brake earned
during her statutory
notice entitlement
period was not deductible as mitigation income, reasoning that statutory entitlements (termination and severance
pay) are not damages and that employees are entitled to receipt of these statutory entitlements whether or not they secure new employment
during the
period they are intended to cover.
In doing so, Ontario's top court made it clear that an employer is obliged, not only to continue the salary
paid to a dismissed employee
during an appropriate
notice period, but also to continue all employee benefits, including short and long - term disability benefits.
Wood argued that the clause excluded Deeley's statutory obligation to contribute to her benefit plans
during the
notice period and did not clearly require Deeley to
pay severance
pay upon termination.
Before the decision in Brake, Ontario law provided that all income earned
during the
notice period, irrespective of its nature, was deductible from the termination
pay owed.
However, a new decision by the Ontario Superior Court of Justice confirms that employers may contract out of
paying an employee who is provided
pay in lieu of
notice a bonus to which he or she would have become entitled
during the
notice period.
Two disabled employees who were unable to work
during a termination
notice period were recently provided with written
notice of termination under the Employment Standards Act, 2000 («ESA»), rather than termination
pay.
As many employers know, if one's employment is terminated without cause and the employee is provided
pay in lieu of reasonable
notice, the employee is nonetheless entitled to his or her entire compensation package
during the reasonable
notice period.
In Nemeth v Hatch, an employer terminated an employee's employment after just over 19 years and provided him with eight weeks»
notice of termination, 19.42 weeks» salary as severance
pay, and continued benefits (including pension)
during the eight - week
notice period.
It concluded that «a term that requires active employment when the bonus is
paid, without more, is not sufficient to deprive an employee terminated without reasonable
notice of a claim for compensation for the bonus he or she would have received
during the
notice period, as part of his or her wrongful dismissal damages.»
The contract must state that the employee can be fired for any reason, without
pay or
notice,
during the probationary
period.
TeraGo Networks successfully argued that Mr. Paquette was not entitled to a bonus that would have been
paid during the reasonable
notice period because the terms of the bonus plan required that Mr. Paquette be «actively employed» on the date the bonus was to be
paid.
The employer may find itself legally responsible for
paying the employee short - term or long - term disability benefits or the employee's estate life insurance benefits if the employer discontinues these benefits
during the
notice period.
For example, the Ontario Court of Appeal in Paquette v. TeraGo Networks Inc. 6 found that a term in a bonus policy that required the employee to be actively employed when the bonus is
paid, without more, is not sufficient to deprive an employee of a claim for compensation for the bonus he or she would have received
during the
notice period.
Although Deeley had provided Wood with the benefits she was entitled to
during the
notice period as well as a lump sum payment to arguably account for the lack of severance
pay, this did not change the fact that the termination clause was deficient and unenforceable.
The termination clause was found to be unlawful and therefore void because the words «any amounts
paid» could be read as failing to provide for the continuation of the plaintiff's benefits
during the plaintiff's statutory (ESA)
notice period.
If the termination clause contravened the ESA because it excluded Deeley's statutory obligation to make benefit contributions
during the
notice period, and did not satisfy Deeley's statutory obligation to
pay severance
pay; and
The Court found that a term in a bonus policy that requires active employment when the bonus is
paid, without more, is not sufficient to deprive an employee terminated without reasonable
notice of a claim for compensation for the bonus he or she would have received
during the
notice period, as part of his or her wrongful dismissal damages.
If the variable compensation plan is ambiguous about payment after the employee has been dismissed then the employee will be entitled to the variable compensation if it would have been
paid during the reasonable
notice period.4
The remedy is damages
paid by the employer in the amount equal to the compensation that would have been earned by the employee
during the reasonable
notice period that is owed.
That is, the appellant took issue with the trial judge's finding that under the Employment Agreement the appellant was not entitled to compensation for the loss of the LTIP benefits he would have earned
during a
period of reasonable
notice because the appellant was only entitled to severance
pay, not the salary and other benefits which would have flowed to him
during a
period of reasonable
notice.
The trial judge set the appropriate
period of
notice at 20 month and declined to deduct the pension benefits
paid to Waterman
during the
notice period in calculating his damages.
As the grievors did not work
during the
notice period, the employer was not obligated to
pay the grievors» wages over this
period.
Laid off staff will be expected to work
during their
notice period, and will get only the statutory minimum redundancy
pay.
Justice Collier explained that «[t] he law in Québec concerning the payment of bonuses is similar to that in other Canadian provinces... [a] n employee is entitled to receive a bonus owed
during a
notice period when the employee has a reasonable expectation, based on past practice, that it will be
paid.»
The «narrow Norton Tool principle» was that it is good IR practice to
pay in lieu of
notice in full, not requiring the employee to give credit for any alternative earnings
during the
notice period.
Upon
notice to Us of entering the armed forces, We will return to You pro-rata any premium
paid, less any benefits
paid, for any
period during which You are in such service;