A letter of reference is a key term in a wrongful dismissal matter. It would be prudent in most situations to include the actual letter as a term of the settlement. Attach it as an appendix, along with a provision that the oral references are consistent with the content of the reference letter. In some situations, it is stipulated that the oral references are confined to what is stipulated in the reference letter. This way you have made the reference letter and the oral references an actual term of the settlement.
The bonus is often an integral part of an employee’s remuneration package. The bonus plan and/or the employment agreement may also stipulate that to be eligible for the bonus, the employee must be “actively employed” at the time the bonus is paid out.
If the employee is terminated in November 2016, does this mean the employee does not receive anything for his/her bonus for the 2016 year because he/she is not “actively employed” when it is paid out in February 2017? Secondly, does this mean the employee is not entitled to compensation for the loss of the bonuses that he/she would have earned and received payment for during the reasonable notice period?
In Paquette v. TeraGo Networks Inc. , (Ontario Court of Appeal, August 9, 2016), the employee was terminated in November 2014 and the bonus payout was in February of the following year. The motions judge found that the reasonable notice period was 17 months but he concluded that the employee was not entitled to compensation for the loss of the bonus(es) because he would not be “actively employed” when the bonuses would be paid out.
The Ontario Court of Appeal allowed the employee’s appeal and concluded that those words alone (“actively employed”) are not sufficient to oust the employee’s entitlement to compensation for the loss of his bonus(es) as part of his damages for wrongful dismissal. The Ontario Court of Appeal concluded that the employee was entitled to be fully compensated for his 2014 bonus and his 2015 bonus because these bonuses would have been paid out during the reasonable notice period.