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Pt. 2 of Assignment II - Ref: Canlii Link

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Educating yourself on Rights as an Employee

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Educating yourself on Rights as an Employee

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Do you know the basics of employment law?

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Preparing Employers for an Employee Standard Inspection in Canada

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Preparing Employers for an Employee Standard Inspection in Canada

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What to Expect During an Employment Standards Inspection | Inspection sur les normes d'emploi

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What to Expect During an Employment Standards Inspection | Inspection sur les normes d'emploi | Ali Sheik, an Employment Standards Officer with the Ministry of Labour, guides employers and employees through the process of a typical workplace inspection. These inspections help ensure employers comply with the provincial Employment Standards Act.

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Helping Out The Employer - Preventing Discrimination

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Helping Out The Employer - Preventing Discrimination

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Creating Inclusive Leadership for the 21st Century - Extended - Featuring Rebecca Shambaugh

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In celebration of Global Diversity Awareness Month, Rebecca Shambaugh, President of SHAMBAUGH Leadership and best-selling author of It's Not A Glass Ceiling, It's A Sticky Floor, offers some advice on creating more inclusive leadership for the 21st century. Visit http://www.EmploymentLawThisWeek.com.

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For some workers, a bonus makes up a significant portion of their remuneration. For other workers, a bonus is something that may or may not be provided by their employee at specific times of the year - Christmas, for example.

Often, an employee who is dismissed without cause will ask whether their entitlement to wrongful dismissal damages will include a component for lost bonuses.

Compensation for wrongful dismissal can include an amount for a bonus which the employee would have been entitled to receive during the notice period.

In the absence of an employment agreement specifying to the contrary, the question is whether the bonus has become an essential component of the employee's remuneration or whether it is essentially a gift - to be delivered at the employer's sole discretion.

A recent decision of the Ontario Court of Appeal, Paquette v TeraGo Networks Inc., 2016 ONCA 618 dealt with this issue.

When Paquette was fired by TeraGo Networks Inc. the dismissed employee and his former employer could not agree on a severance package. Paquette brought a summary judgment motion to determine the period of reasonable notice and damages. The motions judge awarded notice at 17 months and based damages on salary and benefits that Paquette would have earned during the 17-month notice period. The motions judge did not award damages for bonuses, because the employer's bonus plan required an employee to be "actively employed" at the time the bonus was paid.

Paquette appealed that decision on the issue of whether the motion's judge made a mistake in not including compensation for lost bonuses.

The Ontario Court of Appeal allowed the appeal.

The motion judge erred in focusing on the wording of the employer's bonus plan. The motions judge stated that there was no ambiguity in the terms of that plan, and that Paquette would not be "actively employed" during the reasonable notice period, and would therefore not qualify for a bonus.

The problem in that analysis is that Paquette was not claiming damages for the bonuses themselves, but was claiming for common law wrongful dismissal damages (which included bonus payment) he would have received had the employer provided proper notice. The motion judge should have started his analysis from the premise that the dismissed employee has a common law right to damages based upon his complete compensation package, and only then should he have turned to ascertain whether the compensation plan expressly limited that entitlement. In this case, the plan did not expressly limit Paquette's entitlement to a bonus payment because, had the employer provided proper notice, Paquette would have received a bonus payment.

Lessons for Employees

When signing off on a severance package, it is always a good idea to have the offer reviewed by an employment lawyer who can ascertain whether the package appropriately captures all aspects of remuneration owed during the notice period.

Lessons for Employers

A term of a contract or policy requiring active employment when the bonus is paid, without more, is not sufficient to restrict an employee's entitlement to compensation for bonus he or she would have received during the reasonable notice period.

Minken Employment Lawyers is your source for expert advice and advocacy on today's employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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Wrongful Dismissal Damages Equates to Bonus Entitlement

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For some workers, a bonus makes up a significant portion of their remuneration. For other workers, a bonus is something that may or may not be provided by their employee at specific times of the year - Christmas, for example.

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Evangelista v. Number 7 Sales Limited - KNOW YOUR RIGHTS!!

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Evangelista v. Number 7 Sales Limited - KNOW YOUR RIGHTS!!

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Statutory En titlements After Expiry of the Limitation -Receiving entitlements more than two years after they become payable
Many employees are wrongfully led to believe that they are not entitled to overtime. Some years later, often when they are let go and discuss with an employment lawyer, these employees realize their entitlements. Companies defend, saying that they can only sue for two years, not their entire employment. But the Ontario Court of Appeal precedent appears to suggest otherwise.

All civil claims, with very limited exceptions, are subject to a two year limitation period pursuant to the Limitations Act 2002, S.O. 2002, c. 24, Sch. B.. Claims brought after two years are statute barred, meaning any potential claims that could have existed will not be successful simply due to the passage of time.

For employees, this means that all claims for outstanding wages, public holiday, vacation, overtime, notice and severance pay, must be brought within two years of the date the damages became payable. Often this is not a concern when an employee is wrongfully terminated, as the tendency is to seek legal advise shortly after the termination date, far before the two year limitation.

The same cannot be said for other entitlements such as vacation, public holiday pay and overtime. Employers that do not pay their employee's proper entitlements under the Employment Standards Act, 2000 ("ESA"), often do so throughout the entire employment relationship. This may lead to a limitation issue when employees attempt to seek the outstanding pay from the beginning of their employment.

One important qualification in order for the two year limitation clock to starting ticking is discoverability. The person who has a potential civil claim must "discover" that said claim exists. Therefore, if an employee is unaware that they are owed overtime pay, public holiday pay, vacation pay, dating back more than two years, is the two-year clock ticking?
Case law
Often the limitation period is seen as extinguishing these claims, however the case of Evangelista v Number 7 Sales Limited, 2008 ONCA 599 ("Evangelista" ) may help employees who find themselves in this situation.

In Evangelista, the employee after his termination, brought a claim for wrongful dismissal damages in 2004 which included a claim for outstanding public holiday and vacation pay from 1996 to 2003. Under the ESA, the employer was required to pay public holiday and vacation pay but failed to. The majority of this claim, from 1996 - 2002, was clearly outside of the two year limitation.

At trial the Judge awarded the employee outstanding public holiday pay and vacation pay for the entire period of 1996 - 2003, notwithstanding the limitation period.
Principles
On appeal the employer attempted to argue this violated the two year limitation, however the Ontario Court of Appeal stated that the employee discovered he was owed this outstanding pay in 2003 when the employer made the proper payment for the first time. Thus when the employee filed his claim in 2004, he was clearly within the two year limitation from the date he knew he had a claim.

This case highlights the importance of knowing your rights as an employee, and your entitlements under legislation. It also points out the Courts may be willing to take into account that not all employees know their rights, and are willing to award entitlements they deserve. Although this case only dealt with public holiday and vacation pay, it seems the same logic can apply to other claims, such as overtime pay.

It is important to note that past results do not necessarily guarantee future results and each case in unique on it's own merits.

If you have a question about your rights and entitlements, or encounter an issue in an employee relationship it is best to contact an Employment Lawye r so you can chose the best course of action.

About the Author: Samantha Lucifora is an associate lawyer at Monkhouse Law where she practice Employment, Human Rights and Disability Insurance Law. Samantha can be reached at [email protected] .

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Statutory Entitlements and Limitation Periods - Monkhouse Law

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Call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request Statutory Entitlements After Expiry of the Limitation -Receiving entitlements more than two years after they become payable Many employees are wrongfully led to believe that they are not entitled to overtime.

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Free Employee Rights Advice - Government of Ontario, Canada

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Free Employee Rights Advice - Government of Ontario, Canada

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Pro Bono Ontario offers free legal assistance

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Miller v. A.B.M. Canada - an example of knowing your rights

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Miller v. A.B.M. Canada - an example of knowing your rights

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This is the case I have chosen to Cover - Ref: word Doc.