When an employee spends a long time working for an employer, they likely feel confident that they are entitled to s significant period of notice (or payment in lieu of) should they be terminated without cause. A recent decision from the Alberta Court of Queen’s Bench highlights an instance where someone’s disability might prevent them from receiving the notice they might otherwise be owed.

The background

The  employee had been working for the employer for 43 years and was 63-years-old when he was terminated. His termination notice provided him with one year of working notice, with employment to conclude on April 1, 2018. He was not provided with severance on top of this notice period. The employee did not sign the release letter, which was delivered sometime in the spring of 2017, thought he date was a matter of dispute.

Things became complicated when the employee became ill and unable to work in late March 2017, barely into his period of notice. He began receiving disability benefits in July of that year. By December 2017 he had been deemed totally disable by the disability insurer, a status he would keep for one year, when disability payments were set to expire.

The employee claimed that he should have been entitled to 24 months’ notice. The employer agreed with this, but took the position that the employee would not have been able to work for the entire notice period, and that they should not be on the hook following the employee becoming disabled.

The court’s analysis

The court began its analysis by stating that the notice period should be assessed at the outset of a termination, but that damages aren’t necessarily crystalized at such a time. The court wrote,

“ That is why employers and employees often negotiate at the time of dismissal. Neither party knows what events the future will bring in terms of mitigation efforts and unforeseen contingencies. The employee ideally seeks a settlement based only upon the appropriate notice period with no deductions. The employer hopes to adjust that amount based upon mitigation prospects and the possibility of future contingencies affecting the calculation of damages. The damages are ultimately assessed at trial if the matter cannot be otherwise resolved, but the result is not known until trial. Subsequent events and time affect the outcome.”

In this case, the court found that the employee’s health situation prevented him from working during the notice period, and the only payments he would have received, even if there had been appropriate notice given, had already been received by him. The court wrote, “ Although the working notice provided here was initially insufficient, there are no damages to (the employee) caused by the employer on these facts because he was not able to work for any of the 24 month notice period.”

The employee’s motion was dismissed, meaning the employer owed him no additional notice or payment in lieu of.

Through early and forward-thinking consultation with a knowledgeable employment lawyer, parties can proactively address the legal implications of a termination. HMC Lawyers endeavors to offer exceptional advice at reasonable rates, so clients can consult with counsel from the outset and save money in the long run by minimizing legal risk and exposure to litigation.

To make an appointment and get advice about an employment matter, including wrongful or constructive dismissal claims, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.