Employment Insurance Benefits and Severance Overlap [video]

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Can you receive both severance payment and employment insurance benefits after being dismissed from employment on a without cause basis? This lecture explains to the legal framework to answer this question in simple terms.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone this is Amer Mushtaq, from You Counsel. A lot of times when employees are terminated without cause in Ontario, they are unclear about their terminations rights and the interplay of those terminations rights. So, specifically, people have questions about whether they will get Employment Insurance Benefits if they get the severance pay or whether if they’re getting Employment Insurance Benefits would they still be entitled a severance pay? So, that’s a fundamental issue and we’ll explain that legislative framework in this lecture and hopefully, that will help clarify this issue.

We begin, as always, with our usual disclaimer that this course is not legal advice so, if you have any specific questions you must contact a lawyer or paralegal or the Law Society of Upper Canada for a referral.

Now, Rights and Terminations Without Cause, and this is a situation in which the employee is not terminated for cause, and if you’re unclear of the difference between with cause and without cause termination we have separate lectures on that. But, briefly speaking, this is a scenario in which the employee is not being terminated because of some serious misconduct.

The first kind of benefit that the employee may be entitled to is Employment Insurance Benefit under Employment Insurance Act. There are specific requirements for the employee to be eligible, and these generally include that the employee has worked certain number of hours, has completed a certain number of work hours, and the employee is dismissed without cause and then he or she may be entitled to Employment Insurance Benefits. The employee may also be entitled to termination pay under Employment Standards Act, which is based upon, again, the number of years and months the employee may have worked for that employer. The employee, in addition to termination pay, may be entitled to severance pay, which is a separate category. It’s not the same as termination pay under the Unemployment Standards Act, and it has it’s own qualifications for the employee to get severance pay.

And then finally the employee may be entitled to Reasonable Notice under common law which is the judge made law based upon the previous cases that the courts have decided. And so, the employee may be entitled to that, and all of these entitlements depend upon the employee’s length of service and the fact that employee was dismissed without cause and what kind of employment contract the employee has or had with the employer.

Before we get into our basic question, I just wanted to explain the Reasonable Notice Concept one more time. We have covered this in our other lectures, but fundamentally, a Reasonable Notice is the concept that comes from the courts, it is not based on a legislation, and if an employee is entitled to Reasonable Notice then that Reasonable Notice already includes the terminations pay and severance pay. So, you don’t get Reasonable Notice plus termination pay plus severance pay, that is not how the Reasonable Notice is calculated. If you are entitled to any termination pay or severance pay then both of those kinds of payments are already included in a Reasonable Notice, so, you got termination pay, you got severance pay and then potentially, you have some additional notice.

So, one example could be that let’s say employee was entitled to six weeks of termination pay and six weeks of severance pay, and then the judge may very well, under the specific circumstances, give six months of additional notice and so this could the total could be seven months or so. So, this Reasonable Notice includes all of that and why it’s important for you to keep in mind is that the discussion we’re having in the next slide, if we’re talking about Reasonable Notice then that’s probably the best case scenario for the employee, so, if we use Reasonable Notice then it’s easy to understand the examples better.

Okay, so the question then arises that if an employee is terminated can the employee be entitled to all of those benefits that we have described above? And the answer is potentially yes. So, there could be a situation where the employee gets Reasonable Notice, plus the E.I. Benefits. There could be a situation where the employee gets termination and or severance pay plus E.I. Benefits, and these scenarios are possible, but you must keep in mind that these payments are not for the same time period. So, the E.I. and Reasonable Notice or E.I. and termination and severance pay cannot overlap for the same time period.

Let’s explain that by way, of an example and hopefully that will help us clarify this question. In a normal Termination Without Cause, these are the sequence of events that take place. The employee is terminated, and the employee gets termination or severance pay or Reasonable Notice from the employer, and when that terminations or severance pay is exhausted, E.I. kicks in, and then E.I. runs for the time period until the employee is unemployed or about 10 months or so that is the maximum that E.I. is provided.

So, let’s say in the situation, the employee is terminated January 17, and the employer provides five months of Reasonable Notice. Then the Reasonable Notice kicks in, and it runs up to May 2017, that’s the Reasonable Notice period and then from May until I believe March 2018, the employee gets the E.I. Benefits. So, from January from the time that the employee is terminated, to March of 2018, the employee gets Reasonable Notice and E.I. Benefits as long as the employee is unemployed. So, that’s a scenario in a normal or in an ideal world, that’s how things should happen. But, in the majority of the cases this middle part is the one that creates most anomalies, and what happens is in majority of the terminations, employees either don’t get any of the of these rights termination, severance, or Reasonable Notice, or get inappropriate rights. So, they’re not the correct payments that they should receive and there are different reasons for that. But majority of Employment Law litigation is based on this, so, for instance, 80% of my practice is really trying to get employees there appropriate Reasonable Notice or termination and severance Pay in their circumstances. And so, most of the Employment Law litigation is either lawyers advancing employee’s claims, for Reasonable Notice or lawyers defending the corporate clients actions.

So, because of this anomaly in the real world, the majority of the people are in this scenario. Where they get terminated and then they start receiving E.I. Benefits and at some point in the future, either when they are already receiving E.I. Benefits or E.I. Benefits have expired and that at some point they get through settlement or a judgment termination, severance pay, or Reasonable Notice. So, in this scenario then, the employee is terminated January 17th and that employee starts receiving E.I. right after that and then comes the Reasonable Notice.

So, the problem with this situation is that just because this is how the sequence of events happened, this is not how the law allows these things to be tagged along. Meaning that the law does not permit that you exhaust your E.I. Benefits and then you tag along your Reasonable Notice after your E.I. Benefits, that’s not how the law works. So, even though the person received these terminations and severance or Reasonable Notice after the person already started receiving E.I., what the law requires is that take this payment and then insert this payment over here, right? So, the law wants you to make the scenario the same as its previous slide where the termination, severance, or Reasonable Notice kicks in before the E.I. Benefits.

So, we move this Reasonable Notice before E.I. but then what do we do with the E.I. Benefits that you have already received for the same time period? And, so, in this scenario then the E.I. will send what’s called a Notice of Debt to the employee and say that you now have received five months – let’s take the same example – five months of Reasonable Notice from January to May, but we also paid you from January to May, E.I.. benefits so, can you kindly return the money from January to May that we have paid you? Why, because you have received E.I. Benefits for the same time period. Okay, so, you return that money and then The E.I. clock is, in a way, reset for May 2017 right. So, come May 2017, if the employee is still unemployed then the E.I. kicks in again, and then it will run for another 10 months or so as long as the employee is unemployed.

And why that’s important, is it because it all comes down to when the employee obtains employment. Because the two concepts that you want to understand in this scenario is that ‘A’ there is no overlapping double payment right, there is potential for double payment but it can’t overlap. And then you can’t get E.I. if you are employed. So, in this scenario, the advantage of moving E.I. again, ahead of the Reasonable Notice period, is that the clock for the employee is reset and if the employee does have a job in May 2017, then the employee does not get any more E.I. benefits … so then the Reasonable Notice that the employee had received makes the employee whole up to May 2017 and there on … the employee has a job, so, that’s the end of it. But if the employee still does not have a job then he or she is entitled to E.I. Benefits and that can run for the Reasonable Notice period.

So, the key things that you want to remember is that there is a potential for getting all of these payments, you can get all of these payments, but you must keep in mind, that they do not overlap for the time period. And what you also want to understand is that this concept comes from two legislations, one is the Employment Insurance Act And second is the Employment Standards Act and then of course, the common law, the judges law.

So, hopefully that helps you understand under what circumstances you can get E.I. Benefits and severance payment and under what circumstances you don’t. But, if you are unclear about any of these concepts or if you have any questions or any feedback we’ll appreciate to hear from you, and thank you for watching.

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