In Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.
Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .
In calculating damages the Court did two things which I thought were odd .
1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.
Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).
2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.
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