Does your length of service affect your severance?

Severance and your length of service. Does it matter?

Do lawyers and human resource professionals take into account your length of service when calculating your severance? The short answer is yes.

terminated stampWhen calculating what an appropriate “severance” amount will be we  take a look at certain relevant factors. Once these relevant factors have been properly considered by a Court, the matter of the length of notice ultimately becomes an issue of Judgment.   One of the relevant factors to be considered is the length of service of an employee. It is a very important factor in the determination of reasonable notice. By giving weight to the employee’s length of services in the calculation of reasonable, courts have implicitly recognized a limited proprietary right to one’s employment which grows the longer one has been employed.

 
One of the leading wrongful dismissal case that deals with this is the case of Ansari v. British Columbia Power Authority where the court said ” For reasons which are largely subjective and which I would not presume to disturb, the law requires a longer notice period for a long-term employee even though discharged employees of the same age, skill and responsibility suffering under the same economic factors must be assumed to require an equal period to obtain equivalent employment. The reasons for this anomaly may be that a long-term employee has a moral claim which has matured into a legal entitlement to a longer notice period. “

In summary – the length of service as a variable does however have a functional aspect to it – the longer you work for your employer the more difficult it is to find alternate employment.

Always remember – we try not to calculate reasonable notice (employee payout at termination) by using a rule of thumb. We always try and consider all relevant factors – and weight those factors in determining how much severance should be paid.

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Got a dog? Make Sure to Leash it up.

Court awards dog attack victim $60,000.00.

puppyA Judge recently awarded $60,000.00 to a man attacked by a dog while taking his chihuahua for a walk.   The facts were fairly simple. Mr. and Ms. Yi’s claim were taking their cute little Chihuahua for a walk.  As they passed the Defendant’s home two dogs darted out and headed straight for the Plaintiffs’ little dog. Mr. Liu scooped up his little dog but was attacked in the process by the two other dogs.  He suffered dog attack bites in his right inner and outer arm, his right forearm, numerous bites on his left leg  and right thigh. He was treated for his dog attack bites at the Emergency Department of Trillium Hospital where he received a tetanus shot, antibiotics and the wounds were cleaned and stapled.

Liability was not an issue. There was no defence filed and because of this the Judge accepted the Plaintiffs’ version of events.

But – what is the law of dog attacks in a nutshell?

In Ontario we have a statute that is called the Dog Owners’ Liability Act.  This law imposes strict liability on owners regardless of knowledge or proof of a past history of vicious behaviour. A Court looks at who the owner is when used in relation to a dog.  The owner is normally a a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor. Once this is figured out then that owner of a dog is automatically liable for damages resulting from a bite or attack the dog on another person or domestic animal. The responsibility or liability of the owner never depends upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.

WHAT DID THE PLAINTIFFS CLAIM IN RELATION TO THE DOG ATTACK?

Mr. Liu claimed:

a)        General damages (compensation for pain and suffering) of $35,000.00 to $40,000;

b)        Loss of income of $26,185.94;

c)        Future scar revision surgery $866.00;

d)        Out of pocket expenses of $550.00.

Ms. Yi claimed:

a)        Housekeeping of $2,504.60;

b)        FLA claim of $4,000.00 to $4,500.00.

MR LIU’S CLAIMS 

The Judge found that there was no question that Mr. Liu received a number of dog bites in the dog attack. He found that general damages of $30,000.00 are appropriate.

Because of his injuries, Mr. Lui was off work from July 9 to August 1, 2010 and again in September. While he was off work because of the dog attack he was not receiving any income from his job as a commissioned car salesperson at Scarborough Mazda.  During the case Mr. Liu testified that July, August and September are the busiest months in a car dealership. This was supported by the testimony of Amandeep Bassi, Sales Manager at Scarbororough Mazda.

Mr. Liu testified that he could have earned at least $15,000.00 to $20,000.00 per month during this time if not for the dog attack. In fact he earned nothing for the last three weeks in July; $13,207.20 for the month of August and $8,721.86 for the month of September for a total of $21,929.06.

Why could he not work?

Mr. Liu testified that he was unable to earn as much as he could have because due to anxiety and difficulty in moving, and he was unable to reach new customers as quickly as some of the other salespeople – because of the dog attack. The Judge took a comparative view of what other sales people at the dealership made as well as an analysis Mr. Lui’s tax returns for prior years and awarded him $15,000.00 for loss of income.

OTHER DAMAGES

Mr. Liu’s claim for revision surgery was allowed as is his claim for out-of-pocket expenses.

MS. YI’S CLAIMS

Ms. Yi testified that at the time of the dog attack, she was working full-time. When she was at home, she would cook for 6 hours a night (4 hours more than usual) for a three week period, to ensure that Mr. Liu would have food for the next day. Before the accident she would perform housecleaning duties for 30 minutes per day. Because Mr. Liu was not available to help her, she had to perform housekeeping duties for 1.5 hours per day for 3 weeks. She also performed nursing duties for 2 hours per day for two weeks, in that she cleaned Mr. Liu’s wounds, helped him bathe and then would clean the bathroom.

As a spouse, Ms. Yi had the right to advance a claim as well pursuant to Family Law Act. This allows her to pursue a defendant for compensation for the loss of care, guidance and/or companionship that she lost that flows from Mr. Liu to her because of the dog attack.

At the time of the incident, Ms. Yi and Mr. Liu were planning their wedding for the following September. As a result of the injuries Mr. Liu and Ms. Yi fought often in the time leading up to their wedding. There were also some intimacy difficulties as Mr. Liu did not like to be touched after sustaining his injuries in the dog attack.

The Judge awarded her $2,504.60 in lost housekeeping claims as $3,000.00 for her Family Law Act claim.

The total award to Mr. Liu and Ms. Li was approximately $61,000.00.  Most dogs are gentle, loving companions. However, this is a difficult concept to appreciate when a dog attack has caused serious injury as in this case.  – Never underestimate the potential seriousness of a dog attack.

 

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