Remedies

When an employee is dismissed from his/her employment without cause, he/she is entitled to either notice of the termination or pay in lieu of notice. What comprises the pay in lieu of notice, is simply put, all forms of remuneration the employee would have earned had he/she worked throughout the notice period, with some minor exceptions. The issue then is what forms of remuneration are awarded during the notice period? Let's look at a few of the more common items.

If the employee earned commissions during employment, it is not always easy for a Court to determine the amount of the commissions to award during the notice period. In assessing whether commission should be paid during the notice period, the Court looks backwards to the history of the employee's commission earnings. In addition, the Court reviews the overall viability of the market for the particular industry from which the employee was dismissed. The idea is to establish whether the employee would have earned commission had he/she worked throughout the notice period.

Many employees earn bonuses. Whether or not they are awarded during the notice period is dependent on whether the Court finds that they have become "integral" to the employee's remuneration package. In other words, if the bonus is paid regardless of whether certain quotas are achieved, then it will most likely be found by a Court to be non-discretionary like base salary and thus payable during the notice period. If the bonus only was paid if the department achieved a certain sales goal or some other criteria must be met other than simply showing up for work, the bonus will likely be held to discretionary and thus, not awarded during the notice period. Like commissions, the employee will have to adduce evidence at trial showing that a bonus was a term and condition of the employment contract. Evidence showing the history of bonus payments would also be helpful. The Court will attempt to put the employee in the same, but not better position, had the employee worked throughout the notice period.

Some employees are compensated for working overtime. Some cases have disallowed overtime during the notice period while others have allowed it. Again, the smart plaintiff will adduce evidence as to the terms and conditions of employment to establish that overtime was a term of the employment contract and that will show the history throughout employment of overtime having been paid. The employee will then have to show why it is reasonable that overtime should be paid during the notice period.

Many sales employees have a company car or a car allowance. Generally, the Courts have awarded plaintiffs the value of the personal use of the company car during the notice period. If the company provided an allowance for the use of the company only for business purposes, then this is usually not awarded throughout the notice period as there would be no need to use the car for business purposes during the notice period.

These are just a few of the types of losses that a dismissed employee may claim throughout the notice period. If you have been dismissed you should consult an employment who will review with you all types of losses you may claim in addition to your lost salary during the notice period.