In Koski v Terago Networks ( 2021 BCSC 117) Justice Hori considered the following bonus language to see if it disentitled the Plaintiff to a bonus over the notice period:
“Eligibility”:
Actively employed by Terago on the date of the bonus payout in 2020. For greater certainty, any statutory severance period or reasonable notice period applicable to an employee who has been dismissed by the Company (whether with or without cause) that overlaps with a bonus payout date shall not be considered as satisfying the “actively employed” requirements of the Program.
As such, employees who have been terminated or who have
resigned prior to the bonus payout date are not eligible for any bonus
payments referenced herein.
This is what the Judge found:
[60] In my view, the two provisions of the Terago bonus policy referenced above, when read together, create ambiguity. The Supreme Court in Matthews, at para. 66 cited above, makes it clear that for the purposes of wrongful dismissal damages, the employment contract is not considered terminated until after the reasonable notice period expires. If termination of the contract does not occur until after the expiry of the notice period, then it is unclear whether either of the provisions removes or limits Mr. Koski’s common law entitlement.
My Comment: The Judge seems to focus on the issue of “terminated”. Since an employee is only lawfully terminated as of the end of the notie period,( not on the date that they receive notice of termination) this clause could also mean that they do not receive a bonus for the period which follows after the reasonable notice period .
In other words ” terminated ” means ” lawful terminated”.
If you want a copy of this case email me at barry@barryfisher.ca