2023 Starts off with bang as employee awarded 27 months of wrongful dismissal damages

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

When he was terminated, Milwid was given only 11 weeks notice. His outstanding RSUs were cancelled. He sued for wrongful dismissal damages.

Gregory Milwid worked for IBM Canada Limited for 38 years, which, of course, accounted for most of his working career.


He was terminated in May 2020, shortly after the COVID pandemic settled in for a long, unwelcome stay.


As a Band 10 Offering Manager, Milwid earned $169,695.00 in salary, a 6% pension contribution and a modest discretionary bonus at approximately $1,500 a year. He was also awarded restricted share units, or RSUs, that vested over time.


When he was terminated, Milwid was given only 11 weeks notice. His outstanding RSUs were cancelled. He sued for wrongful dismissal damages.


At a summary judgment motion, Milwid argued his IBM termination forced him into retirement. He had applied for 122 jobs and received no interviews. He argued there were exceptional circumstances that should be considered in awarding him damages, including the unprecedented shutdown of the economy arising from COVID.


Justice Ramsay awarded Milwid 27 months in wrongful dismissal damages, taking into account his age, 62, the fact he was highly skilled and moderately specialized, his 38 years of service and “having taken judicial notice of the declaration of the pandemic in March 2020.”


Justice Ramsay also found IBM’s RSU plans were ambiguous and did not immediately cancel Milwid’s rights on termination. Milwid was awarded $55,619.88 USD for RSUs that would have vested over his notice period. This is a key finding because many employees believe they have no hope on termination to have their RSUs continue to vest after they have been terminated.


The courts continue to confirm that if RSU plans are ambiguous, RSUs that would vest over the reasonable notice period, would be payable to a terminated employee.


This case contains a number of significant considerations for employees who have been terminated.


COVID TERMINATIONS: A termination during the pandemic and its subsequent impact on your job search may lead a court to consider awarding a higher amount of damages. It may be an exceptional circumstance, as was found in Milwid’s case.


HIGHER DAMAGE AWARDS: The courts are now more routinely recognizing exceptional circumstances and extending upper notice periods beyond 24 months in cases where economic factors, length of service, age, and character of employment justify higher awards.


LOYALTY TO ONE EMPLOYER: If you have spent most of your career at one employer, and are then terminated, the court may recognize this in awarding you a higher notice period like Milwid after spending 38 years at IBM.


BIG EMPLOYERS MAKE LOW OFFERS TOO: Sometimes large employers dole out low-ball offers on termination. In this case, despite his 38 years of service, IBM offered Milwid just a little more than his statutory minimums on his termination. Don’t let the size of your organization influence how you proceed to value your case. The law treats big employers and small employers equally.


Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.


The content of this article is general information only and is not legal advice.

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