Employer Responsible for Extra Income Tax Burden of Dismissed Employee:

In Schram v Govt of Nunavut, ( 2018 CarswellNB 280) the NB Court of Appeal had a situation where the plaintiff was employed in Nunavut on a fixed term contract. She was terminated before the end of the term and returned to New Brunswick, her home. Once she won her case in the NB courts, she was awarded a retiring allowance of $213,000.

As she was now a resident of NB, she paid tax at the NB rate which is higher than the tax she would have paid if she was permitted to work out her fixed term contract and pay rates applicable to Nunavut residents.

The CA awarded her additional compensation equal to the difference between the higher NB tax rate and the lower Nunavut rate.

This was done on the principle that she should be put into the same economic position as had the breach of contract not occurred.


Employer Can’t Require Employee to Sign Release In Order to Receive Contractual Severance:

In Tong v Synerion North America ( 2017 CanLII 145091) Prattas D.J. had a situation where the employment contract called for 6 weeks pay for this 3 year employee but because the employee refused to sign a release, the employer only paid 3 weeks, contrary to its own contract.

The judge had found that the contract was illegal  as it violated the ESA ( no termination pay for under 1 year service and no benefits ) so reasonable notice was the only option but still the judge mentioned three times in the judgement this action by the employer as one of the grounds to find that 6 months was proper notice.

Quere: Does this mean that anytime an employer does not pay out what their own contract requires that they later on cannot seek to limit  their liability  to the contract? If the contract provides for only the ESA amount on termination but the employer pays zero because they allege cause but fail, does this mean that the employee gets reasonable notice ?

Doctrine of Frustration Doesn’t Apply to Unjust Dismissal under Canada Labour Code :

In Lewis v Whiteline Trucking ( 2018 CanLi 72555 ) Adjudicator Pallard had a situation where the employers’ new insurance company would not cover the plaintiff in the company insurance program. As this made it impossible for the plaintiff to drive, his employment was terminated as the contract was frustrated.

However the Adjudicator ruled that the common law doctrine of frustration did not apply under the unjust dismissal section of the Code as ” just cause” must be based on culpable conduct by the employee. As there was no evidence of this in the hearing the discharge was found to be unjust. Mr Lewis was awarded his Code severance pay .

Quere, what if he was uninsurable because of something he did while not at work, like being convicted of impaired driving ? Does this make his uninsurability culpable ?