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.
An employee may be a member of a Defined Benefit Pension Plan (“DB Pension Plan”) as part of his/her remuneration package. The DB Pension Plan is a significant term of the employee’s remuneration package. If an employee is terminated and paid severance in a lump sum amount, he/she ceases to accrue credited service in the DB Pension Plan which effects its value. Given that the employee is not continuing to accrue credited service in the DB Pension Plan during the reasonable notice period, the employee has incurred a pension loss for which he/she is entitled to be compensated for as part of his/her claim for wrongful dismissal damages.
Some Issues that an Employee may want to consider in the Negotiation of a Severance Package
What is the amount of the pension loss incurred in the DB Pension Plan on account of not accruing credited service during the reasonable notice period? What are the tax implications for receiving a payment today (given that the employee’s income is higher today than it will be during retirement) as compensation for the pension loss in the DB Pension Plan and how are the tax consequences dealt with in the actual determination of the pension loss? Alternatively, should the employee consider proposing that the severance package be paid on a salary continuance basis (not subject to mitigation) with the term that he/she will continue to accrue credited service in the DB Pension Plan so long as he/she is paid salary continuance.
The amount of the pension loss is relevant to assessing the true value of the Company’s severance offer.