In Lalani v Canadian Standards Association ( 2015 CarswellOnt 19003) Diamond J. dealt with a clause in a bonus plan that required the employee to be “actively employed” at the end of the fiscal year to be entitled to a payout of the bonus. The employer paid the employee a prorated bonus for the period up to his actual date of termination plus the 34 week termination and severance period under the Employment Standards Act but not for the balance of the 24 month notice period.
The Court held that ” While the plaintiff may be notionally an employee during his 24 month notice period, he is no longer an “active employee” and does not qualify for the STIP payment.”
The interesting aspect of this case is not that the term “active employment” was found to be different than the period of reasonable notice, but rather that both the termination pay period of 8 weeks and the severance pay period of 26 weeks were both determined to be ” active employment “.
Section 62(1) of the ESA ( which deals with Termination Pay ) reads as follows:
If an employer terminates the employment of employees without giving them part or all of the period of notice required under this Part, the employees shall be deemed to have been actively employed during the period for which there should have been notice for the purposes of any benefit plan under which entitlement to benefits might be lost or affected if the employees cease to be actively employed. 2000, c. 41, s. 62 (1).
However no such parallel provision exits for severance pay in the ESA. This is because severance pay is a different concept than termination pay. Termination pay is a substitute for termination notice and thus must mimic what the employee would have received had he or she been given actual working notice. Severance pay however is an entitlement to receive a lump sum payment and in fact cannot be provided by giving working notice.
This case treats both statutory payments as constituting “active employment” and thus may have the effect of expanding the rights of dismissed employees to bonus plans.