Calculating Damages For Wrongful Dimissal
An employee who is dismissed without cause is entitled to reasonable notice of termination. Where an employer provides “working notice”, the employee is given advance notice as to their last day of employment. In the interim, they continue to be employed and are paid for their work. In theory, the period of working notice operates to cushion the transition from one employer to the next by providing the employee with income while they look for work.
However, it is rare that an employee is actually given working notice. The norm is that an employee is terminated effective immediately. In these circumstances, and where cause is not in issue, the employee is entitled, both by operation of the Employment Standards Act (the “Act”) and at common law, to pay in lieu of notice. The Act speaks of an entitlement to “regular wages” over the notice period. At common law, the Courts calculate remuneration owing based upon what the employee would have received over the appropriate notice period.
In many cases, the employer will offer minimum Employment Standards payments or marginally greater than such payments in exchange for a full and final release. Is this all an employee is entitled to?
Take, for example, a waitor, 52 years of age, with just under five years of service who is receiving an hourly rate of $11.00 for a 40-hour workweek. In addition to his base salary, the employee earns tips and is enrolled in the employer’s group benefits plan. The individual is entitled to two weeks’ paid vacation. According to the Act, that individual would be entitled to a minimum of four weeks’ notice. The employer offers to provide termination pay in the amount of 4 weeks’ base salary or $1,760.00 and nothing more.......
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