Dismissed at Christmas: Do Grinchy employers owe more severance pay?

Were you dismissed at Christmas time? If so, you’re not alone. But, it can be a very hard time to lose a job. Of course, a holiday season dismissal brings added financial stress and emotional impact. It’s a hard time to reach a lawyer for advice due to office closures. And, it’s a hard time to start a job search for the same reason. If your employer terminated your employment this holiday season, you might be wondering if they owe you a little more severance for pain and suffering.

What is severance pay?

“Severance pay” or “severance package” are terms that refer to compensation paid to employees dismissed without cause and without working notice. Normally, though, people actually mean a combination of the following types of pay:

  • Termination Pay : this is the minimum amount an employer must pay to a terminated employee under Ontario’s Employment Standards Act, 2000
  • Severance Pay : this is an additional minimum amount that larger companies must pay to longer-service Ontario employees
  • Reasonable Notice or Wrongful Dismissal Damages: this is what the common law says employees get if they are dismissed without cause and without a valid contract
  • Contractual Notice: if your contract validly set out in advance what your entitlement would be if you got fired, this is what you get

Sometimes, it includes other types of compensation which people often refer to as “pain and suffering” damages. However, lawyers use the following terms to describe additional money or “special damages” for more extreme employer misconduct:

  • General Damages
  • Human Rights Damages
  • Aggravated Damages
  • Punitive Damages
  • Moral Damages
  • Bad Faith Damages

So, does my employer pay more damages if I was dismissed at Christmas time?

A handful of employees have argued this issue in Ontario Courts and tribunals over the years. However, very few cases directly address the issue. One exception is Zesta Engineering Ltd v Cloutier, 2010 ONSC 5810. This was a complicated case which included an employer dismissing a long-service employee by phone just 5 days before Christmas. For this, and other serious employer misconduct, the Court awarded $75,000 in “moral damages” or bad faith damages. In addition, it ordered the employer to pay 20 months or $212,520 in wrongful dismissal damages.

Courts in other provinces have considered the impact of holiday season dismissals a bit more often. Typically, they see it one of two ways. Either firing some one during Christmas time is so egregious that special damages are warranted or the fact of a holiday dismissal might entitle some one to more pay in lieu of notice, because it’s harder to find work that time of year.

For example:

  • Paulich v Westfair Foods, 2000 ABQB 74, an Alberta Court awarded $4,000 as damages for “mental suffering” to an employee dismissed shortly after Christmas. The employee had two small children and developed ulcers due to his experience.
  • Budge v Thorvaldson Care Homes Ltd, 2002 CanLII 78267 , the Manitoba Human Rights Commission considered a pre-Christmas dismissal of a mother “particularly harsh”. This was one of multiple factors resulting in an order to pay $4,000 as general damages in a sexual harassment case.
  • A federal arbitrator considered the dismissal of a mother just weeks before Christmas “egregious” conduct in Taypotat v Muscowpetung First Nation [2014] C.L.A.D. No. 53.
  • Laliberte v La Society du Centre Scolaire Communautaire de Calgary, 2007 ABPC 324, the Alberta Court increased the employee’s compensation from 3 to 5 months in part because he was fired shortly before Christmas
  • A New Brunswick judge in McGrath v Ronald’s Printing Altantic Ltd, 1992 CanLII 2718  recognized that dismissing an employee during the Christmas season “[added] difficulty to his efforts to find alternative employment”. Although the worker was young and short-service, he was awarded 3 months’ pay.

By contrast, in one British Columbia case, Crasmariu v West Van Florist Ltd, 2006 BCPC 291, the Court considered an argument that bad faith damages were due to an employee dismissed on December 22nd. Although the employee was distressed, the Court declined to order special damages since the timing was not deliberate.

Holiday terminations and other seasonal workplace issues

However, if an employer dismisses or otherwise mistreats an employee because the have religious or family obligations during the holiday season, this can be discrimination. Sadly, the law doesn’t protect employees’ right to quality family time.

But, religious employees are entitled to time off to observe religious holidays up to the point of undue hardship. This includes, but is by no means limited to Christmas. In fact, most religious accommodation issues arise for non-Christian employees. This is because of prejudice and because thier holidays and observances don’t conveniently line up with public or statutory holidays.

Similarly, parents whose children are home due to daycare or school closures over the winter break must be accommodated. Parental status accommodation is a bit complicated. In short, before an employer needs to grant an accommodation, the parent needs to try to self-accommodate. For example, a parent needs to see if holiday childcare is available from family, friends, camps etc before their employer needs to grant a schedule change. And, only legal obligations are protected, not parenting choices. This means an employer could require a parent of older teens to work on the holidays, for example.

You can find out more about parental status accommodation and the duty to accommodate here.

Time off for public holidays

Of course, regardless of your religion or parental status, most Ontario workers benefit from statutory holidays in the Christmas season. A statutory holiday is a right to a day off work, with pay. Or, if you do work, with extra holiday pay. For both provincially regulated and federally regulated Ontario employees, this means Christmas Day, Boxing Day and New Year’s Day. You can find out more information about holidays here.

There are exceptions to the general rule that employees don’t work on a holiday. But, there’s also an expectation that employers not abuse the right to refuse time off. In unionized contexts at least, an employer generally can’t act arbitrarily, discriminatorily or in bad faith when it comes to scheduling. In Re Canada Safeway Ltd, 1982 CanLII 5071 , a 19-year old union member was dismissed after taking unauthorized leave to attend a pre-planned family holiday over Christmas. Although he lost his grievance arbitration hearing, a dissenting member of the board of arbitration objected to his treatment. The dissenting reasons note that he was a young adult, who lived with his family while working part-time. Because of this, the dissenting board member said that it was unjust to threaten him with dismissal instead of granting him time off for the holidays. We certainly agree with this dissent!

Make a new year’s resolution to call an employment lawyer if you were dismissed at Christmas

If you were laid off or dismissed at Christmas this year, make a new year’s resolution to get legal advice. A consultation with an employment lawyer can help you assess whether you’ve been offered a reasonable severance package. You can also find out if your employer’s grinchy bah-humbug may entitle you to special damages or additional notice.

RESOURCES:

You might be interested in some of our other blog posts

I’ve been fired. Can I sue for mental distress?
What is a Severance Package? Am I Entitled to Severance Pay?
Do Ontario Construction Workers Get Overtime and Severance Pay? Special Rules and Exemptions

DISCLAIMER: This post is for educational and informational purposes only. The results of cases described in these posts may not be typical and are not guaranteed. The accuracy of McMahon Molyneaux Henriquez Labour & Employment Lawyers posts are not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your situation, please contact a lawyer. Click here to contact one of our lawyers now. Contacting McMahon Molyneaux Henriquez or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.