Working notice of termination or pay in lieu (i.e. “severance”) is afforded to employees in order to provide them with enough income or time to find their next job. Wrongful dismissal litigation seeks to put the employee in the position she or he would have been if she or he had gotten reasonable working notice or pay in lieu.
What happens, though, when a dismissed employee is incapable of working at all? The Alberta Court of Queen’s Bench recently examined this question in Belanger v Western Ventilation Products Ltd, 2019 ABQB 571.
Mr. Belanger worked for 43 years for the Defendant, Western. In or around March 2017, he received one year’s working notice of termination with a last day of April 1, 2018. Around that time, he fell ill and was unable to work. He started receiving Long-Term Disability Benefits.
Mr. Belanger said that the one year working notice period was insufficient and that he was entitled to a severance payment equaling two (2) years pay. He sued Western for that amount. The Defendant stated that even if the severance payment was not enough, it would make no difference because of Mr. Belanger’s disability from working. In other words, Mr. Belanger would not have been able to work during any of the notice period, and as such the only payment he would have received during that time would have been the disability insurance payments. Therefore, he was not entitled to any further severance payment.
Before the Court, Mr. Belanger was 64 years old and admitted that he would remain totally disabled from working until his 65th birthday (when his disability benefits would terminate).
The judge examined the evidence and found that during the 24-month period following the start of his disability, Mr. Belanger was in receipt of all of his disability benefits, but of course received no regular pay because he was not working. As he was going to continue to be disabled to age 65, he would receive disability benefits until age 65.
The Court stated that while the illness was unfortunate for Mr. Belanger, the employer had fulfilled its contractual obligations to him. He was not able to work during the notice period, and the only payments that he would have received, and which he did receive, were the disability insurance amounts. The Court found that although the working notice provided was initially insufficient, there were no damages to Mr. Belanger caused by the employer. The Court dismissed Mr. Belanger’s case.
This case highlights the purpose of notice, which is to allow the employee enough time to find work or to provide them with enough money to live on while he or she does so. If the employee is totally unable to work and collecting disability benefits, he or she would not be entitled to notice because they would have been unable to work during the notice period.
This blog post was written by Nigel McKechnie, a member of our Employment Law team. Nigel can be reached at 613-369-0382 or at nigel.mckechnie@mannlawyers.com.
