Termination clauses have had an ongoing saga in our courts with people challenging them and trying to avoid the implications of what they signed, which can have tremendous implications.
Passmore and Illumiti Inc., which was released in November of last year, and is helpful for both employers and employees as it reviews the types of remedies that may be available through the tribunal, as well as how damages are assessed.
If the employee is entitled to reasonable notice under the common law, then the employee has a duty to mitigate their damages, which means that they have a duty to take reasonable steps to find comparable employment.
The most common requirements for an employee to be eligible for severance pay is that the employer must have a payroll of at least $2.5 million, and the employee must have been employed for at least 5 years.
We are dealing with investigations more and more often in the context of employment or HR law, and the reality is, as we often tell our employer clients, you cannot impose discipline, especially dismissal, until you investigate.
The question that I ask today, and I will answer today, is whether, despite having that full and final release, a claim can be brought. And the simple answer is yes, there are circumstances where courts will allow someone to bring a claim even after they signed a full and final release.
In this case, I want to talk about the case of Ocean Nutrition Canada v. Matthews, which comes out of Nova Scotia, and this deals with the types of damages an employee is entitled to in a wrongful dismissal claim.
Usually when we talk about damages for wrongful dismissal, we look at the number of months, we try to calculate what a month is worth and we take into account salary, bonuses, commission, benefits, car allowance, pension, etc. And when we negotiate a settlement, we might throw in a token amount for the cost of finding new work, but that's usually an afterthought.