Employee Entitlements on Dismissal Under Common Law

When an employer chooses to terminate a worker's employment, one the most important considerations is whether the termination is a wrongful dismissal or for just cause. Most terminations are wrongful dismissals, typically entitling the dismissed employee to both reasonable notice damages at common law and damages under the Ontario Employment Standards Act.

A dismissal for just cause occurs when an employee has fundamentally breached their employment contract. This is often established by demonstrating acts of dishonesty, gross insubordination, or a persistent neglect of their duty. When an employer can demonstrate that they have just cause for terminating an employee they are typically relieved from paying any reasonable notice or Employment Standards Act damages. Many employment cases before the courts turn on whether an employee was dismissed for just cause.

However, a recent case demonstrates that even when an employee is found to have been dismissed for cause at common law, they may still be entitled to damages. The case of Oosterbosch v. FAG Aerospace Inc. 2011 ONSC 1538 (Can LII) is interesting because the trial judge found that the employee's conduct allowed a dismissal for just cause but still awarded damages under the Employment Standards Act. The court examined the difference in definition between just cause for termination at common law, and "wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer", being the conduct that disentitles a dismissed employee to damages under the Employment Standards Act.

The trial judge in FAG Aerospace found that while the employer did have just cause to terminate employment, there was not sufficient evidence to conclude that the employee's behaviour was “wilful misconduct, disobedience or wilful neglect of duty” to disentitle him to damages under the Employment Standards Act. It was accepted at trial that the employee was often late and was a poor performer at work despite numerous coaching sessions, but the judge concluded that this behaviour was not wilful on the part of the employee, but occurred simply through carelessness.

There are few employment cases that draw such a fine distinction between the common law and Employment Standards Act but FAG Aerospace demonstrates that proving just cause for termination is not the only consideration an employer should have when letting an employee go without offering severance.

Frequently Asked Questions

Workplace Travel: Must I go if I'm worried about my safety?

My employer has again asked that I work in a foreign country. I am concerned that this posting is unsafe. Last time I worked abroad multiple bombings took place and several governments closed their embassies. I also had my personal belongings stolen while I was in what was supposed to be a secure area. Do I have to go work in this country? If I do is my employer required to provide travel insurance in case something goes wrong?

‍The first thing to look at is your employment contract. Most employment contracts contain both written terms, and unwritten terms that are implied into the contract by law. The written portion of an employment contract usually mentions the benefits and insurance coverage that an employer is required to provide and it may also mention work locations and travel.

Unless travel insurance is covered in the original contract, or has since been agreed to by the employer, an employer generally cannot be forced to provide travel insurance. Also, most travel insurance policies will not cover all of the risks you’ve outlined. However, the failure to mention travel or relocation in a contract may prevent an employer from requiring that an employee work in a foreign country. Whether an employer can make such a request, without it being specifically mentioned in the contract, depends primarily on the nature of the work and if foreign travel to that country was expected or foreseeable when the employee was hired or promoted into their current position.

If an employee has a legitimate fear for their safety they may be able to argue that a travel request from their employer is not consistent with their contract. The context of the employment and the country involved are important considerations. For example it could be implied into many contracts that travel to the United States is acceptable, whereas travel to parts of Afghanistan is not. It is always best to review your contract, check your facts, and consult with a Lawyer before making any demands of your employer.

Are employment contracts necessary?

Are employment contracts really necessary? Here are the Reasonable Notice and Bonus Requirements.

I’m always surprised to see how many employers still adopt the “handshake” method when hiring employees. I can understand the temptation to be nostalgic, but these types of employment agreements can leave employers at loss. Especially when the employment relationship ends. Here are some things every employer should consider:

Reasonable Notice

Facts: The employee has worked for you for 7 years. You want to go a different way and he/she’s not part of the picture, so you let him/her go without cause. The law states you must provide either reasonable notice or pay in lieu of notice. How long will this notice be? It depends on whether you have a contract in place.

Contract: Employment contracts I draft or review for my clients will typically include termination provisions. The provisions set out what will happen when the employment is finished; amongst other things, the notice period that should be provided. Typically the provision will limit notice to the Employment Standards Act (ESA) minimum notice requirements. The ESA sets out the following parameters, depending on years of service:

Employer Notice Period

57 The notice of termination under section 54 shall be given,

(a) at least one week before the termination, if the employee’s period of employment is less than one year;

(b) at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years;

(c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years;

(d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;

(e) at least five weeks before the termination, if the employee’s period of employment is five years or more and fewer than six years;

(f) at least six weeks before the termination, if the employee’s period of employment is six years or more and fewer than seven years;

(g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or

(h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.

So, if drafted properly in the contract, the employee in the above example would have a right to 7 weeks notice.

No Contract

‍If there is no contract in place, the employee is allowed “common law” reasonable notice. Bardal v. Globe & Mail Ltd set the precedent for all wrongful termination cases treating reasonable notice requirements. Although less than 8 pages long, the decision set out what factors should be considered when deciding how much notice an employee should get. It is typically a lot more then what an employee would get under the ESA minimums. Employment adjudicators have added to the Bardal factors and although not exhaustive, the typical considerations are as follows:

the type or characterization of employment, for example, was it a contract position or permanent full-time position?
the age of the employee at the time of the termination;
the length of service that the employee provided to the employer;
previous employment history and luring, if applicable;
the experience and skill set of the employee at the time of the termination and whether this experience and skill set is transferable to reasonable alternative employment;
the employee’s salary at the time of the termination;
the current job market and the availability of reasonable alternative employment;
whether the employee was in a position of management or upper management;
does the employee have a health concern or disability that may impair securing alternative employment?
the manner of the termination; and
is this a single termination or a mass lay-off of 50+ employees?

Although not set in stone, adjudicators tend to adopt a month per year of service approach to notice. Cases will typically end up in that range and, depending on the factors above, there may be additional months added or reduced.

Taking the above example, that employee could expect something in the range of 7 months notice. The difference is significant. Let’s say the set income allowed the employee a weekly notice value of $1,000 (net). The ESA minimum would be $7,000. Common law notice would be in the range of $28,000.

As always, every case may be different. This is not an exact science and this example is a very simple version of what might occur. It does, however, stress the importance of having a contract in place that sets out the parties’ rights and obligations on termination.

Bonuses

Dealing again in termination, one provision that employers often miss is the right to bonus payment during the reasonable notice period. If a contract properly states that the bonus will not be paid for the period of reasonable notice, then the employee will not get paid a bonus after the termination date. If the contract doesn’t mention it, then the yearly bonus is deemed to apply throughout the entire notice period.

This applies to both discretionary and non-discretionary bonuses; that being said, there is some wiggle room on the discretionary bonus. For instance, in Fraser v. Canerector Inc., the employer successfully argued that the employee’s performance in the year pre-dating the termination did not merit the discretionary bonus.

Where the employee bonus is not discretionary, it must be expressly stated in the contract that the bonus will not be paid during the reasonable notice period. The concept was discussed in Paquette v. TeraGo Networks Inc. . In that case, the Court set out a two-part test for determining whether an employee is entitled to compensatory damages for the loss of a bonus:

Was the bonus an integral part of the employee’s compensation package, thereby triggering a common law entitlement to damages in lieu of bonus?
If so, is there any language in the bonus plan that would restrict the employee’s common law entitlement to damages in lieu of a bonus over the reasonable notice period?

It was recently applied in Singer v. Nordstrong Equipment Ltd.. In that case, the employee knew that the employer’s practice was not to pay out bonus entitlement during the reasonable notice period. Despite his knowledge of this fact, he was still awarded a quantified bonus. The Ontario Court of Appeal emphasised that the company did not limit the bonus payment in writing within the employees’ contract and that it needed to do so in order to refute any common law right that employee had to his bonus entitlement.

The Takeaway: Contracts are good for both employers and employees alike. They set out the parameters of the employment relationship and, if worded properly, can act as a strong dispute resolution tool. Clarity in the employment relationship is a crucial component of any healthy work environment. Drafting appropriate contracts to each employee is the best thing an employer can do to reduce overall costs and the potential for litigation.

Do you need an Employment Lawyer? Speak to one of our professionals and get the help you need.

Can an employee be forced to forfeit their unvested shares on a termination without cause?

I was fired without cause. What happened to my company shares or stock options?

Your job was just terminated "without cause" and as if it's not bad enough that you just lost your job, you also find out that your shares in the company are no longer yours. Just like they never existed, any unvested shares are forfeited the day you're terminated. For some, this could mean hundreds of thousands of dollars in expected income gone.

So what does "vesting" mean and why is it important in this context? An unvested share simply means that the shareholder's rights to that share is subject to specific conditions. Companies will typically create vesting schedules for the shares they give their employees. The shares are provided to the employee subject to a share agreement which sets out the vesting schedule. That schedule will tell the employee when his/her shares will vest. Once the shares vests, the employee has an absolute right to these shares. They can be sold or kept at the discretion of the employee.

Vesting schedules are extremely useful and can be justified. The logic behind a vesting schedule holds that employees must earn shares that are available to them. The longevity of their employment should be correlated to their performance. If they perform well, their job will remain secure and their shares will vest with time. The vesting schedule dangles the possibility of added income in front of the employee to motivate good performance.

Employers should have the right to motivate their employees in this manner and an underserving employee should not be rewarded with income that was subject to him or her deserving it. Any employee who has justified a termination for cause, should not benefit from the vesting of unvested shares.

The dispute arises when the employee's performance is not at issue. The employee worked hard for the company and did nothing to jeopardise his or her rights to the unvested shares. We know that the employee can still be terminated without cause since no employer is handcuffed to their employees. The dilemma is whether or not that employee should have some right to his or her unvested shares.

Companies can squash any right the employee might have to unvested shares by contracting accordingly. Provisions in the share agreements or long term incentive plans, if they are sufficiently clear, can restrict the rights of the employee to unvested shares no matter if the employee is terminated for cause or without cause. Think of the following scenario:

Your employment is going extremely well. You've just received a promotion and your performance reviews are great. You're then terminated without cause. You're terminated in August. Before being terminated, you held 500 unvested shares in the company valued at $400.00 a share. Based on your vesting schedule, 50% of those shares were to vest in October that same year.

The shareholder's agreement holds that all unvested shares once terminated, notwithstanding cause, would be forfeited immediately. Remember you did nothing to merit your termination. Notwithstanding, your company has terminated you. Had they kept you for another two months, you would have had access to $100,000 worth of shares on top of your current income.

This does happen and, with the rise in e-commerce and proficiency in which new companies make public offerings, courts are now seeing a rise in cases where these types of employee shareholder agreements are in dispute.

The Ontario Court of Appeal (ONCA) has recently addressed a similar scenario in O'Reilly v. IMAX Corporation, 2019 ONCA 991. O'Reilly brought a wrongful termination claim alleging that he was not provided sufficient notice and that his unvested shares were unlawfully forfeited. On a summary judgement motion, O'Reilly was awarded 24 months' reasonable notice. The main issue before the ONCA was whether or not the motions judge was correct in awarding damages for shares that would have vested during the notice period.

The ONCA looked closely at the relevant provisions within the employer's long-term incentive plan and stock option grants. The following provision was highlighted:

(5) Termination of Employment Generally. In the event that the Participant’s employment with the Company terminates for any reason other than death, Disability or for Cause, the Options shall cease to vest, any unvested Options shall immediately be cancelled and revert back to the Company for no consideration and the Participant shall have no further right or interest therein. Any vested Options shall continue to be exercisable for a period of thirty (30) days following the date of such termination; … To the extent that any vested Options are not exercised within such period following termination of employment, such Options shall be cancelled and revert back to the Company for no consideration and the Participant shall have no further right or interest therein.

The Court set out to determine whether the words "terminates for any reason" included termination without cause. The ONCA emphasized the need for clarity in these types of provisions. It agreed with the motion judge "that the reference to terminates for any reason in the plans could not be presumed to refer to termination without cause."

O'Reilly was awarded the entirety of his shares throughout his notice period, valued at what they would have been had he sold them immediately upon vesting. O'Reilly had upwards of 30,000 shares valued between $20-$30 that would have vested during the 24 months' notice. The motion judge's decision on the unvested shares and the ONCA's subsequent dismissal made a difference of upwards of half a million dollars in the overall damages awarded to O'Reilly.

WHAT DOES THIS MEAN FOR EMPLOYEES AND EMPLOYERS?

FOR EMPLOYEES: Do not walk away from your unvested shares without consulting an employment Lawyer. You could be leaving significant entitlements on the table.

FOR EMPLOYERS: Any attempt to limit the common law entitlements of an employee should be clear and unequivocal. Do not assume that general language, meant to encompass all, is sufficient to address one specific scenario. It is best to identify the entitlement within the provision and address it accordingly. Contracts must be drafted with specific consideration to the employer, their employees and the market. Boilerplate contracts leave unintended openings to employees and may significantly hamper the economic status of a company when it attempts to restructure and terminate employees.

Sources:

O'Reilly v. IMAX Corporation, 2019 ONCA 991.

O’Reilly v. Imax Corporation, 2019 ONSC 342.

Veer v. Dover Corporation (Canada), 1999 CanLII 3008 (ON CA)

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