When receiving a severance package, the primary consideration for most employees is the number of weeks of notice or severance that are paid to them; however, there are other components that must be considered before accepting a severance package.
Firstly, this discussion addresses the severance package entitlements of employees in Ontario that have been terminated from their employment without cause. For those employees that have been terminated for just cause, the entitlement to severance is nil. That said, in many just cause termination cases, the employer has weak grounds for the termination (i.e., in other words, they would not successfully satisfy the threshold for just cause) and as such, a severance package may be attainable through a negotiation or Court action for wrongful dismissal.
With respect to the without cause terminations, an employee’s severance entitlement is either (i) determined in accordance with the terms of an employment contract that contains an enforceable termination clause, and in no case less than the minimum entitlements prescribed by the Employment Standards Act; or (ii) is based on the principles of the common law (i.e., judge-made law) in Ontario, which has set out various factors that must be assessed to determine “reasonable notice” of termination.
In calculating reasonable notice of termination or pay in lieu thereof, Ontario Courts have enumerated a non-exhaustive list of relevant factors, including:
- Age of the employee;
- Duration of service (including any successive fixed-term contracts);
- Seniority at the company;
- Total compensation (including base salary plus bonus, with more weight given to more substantial bonuses that form an integral component of compensation); and
- The availability of comparable employment given labour market conditions.
In addition to the compensation paid out in accordance with the above considerations, an employer will issue a Record of Employment (ROE) to Service Canada to qualify for employment insurance.
The employee will then be required to return all company property and the company in exchange will return all personal property to the employee.
Often, companies will require that the employee update their social media profiles to reflect that they no longer are employed in the same position.
The employee will be continued on the employer’s group benefits plan and regular contributions will be made to continue health and dental insurance coverage for, at minimum, the statutory notice period.
The employee may be entitled to the vesting of stock options, restricted share units, or other incentive compensation plans depending on the terms of the applicable policy.
The employee may have to comply with various restrictive covenants including a non-competition clause (restriction from working in the same or similar line of business in a given geography for a certain period of time), non-solicitation clause (precluded from soliciting former clients or employees of the employer for a separate venture), non-disparagement (restriction against publicizing negative comments about the employer) and confidentiality provisions.
Companies may also offer terminated employees career counseling and resume building services to facilitate their job search.
In exchange for all of the above consideration, the company will request that an employee signs a Full and Final Release, which is a legal document that prevents the employee from seeking any further compensation or any future claims against the employer, or any party that may seek indemnity by the employer, for any matters relating to the employment. In essence, the Release is a document that acknowledges that the severance package agreed upon satisfies all of the employee’s legal rights.