Session EF1 Terminations Roundtable (double session) Presented by: David Whitten, Whitten & Lublin, LLP & Annie Chong, Thomson Reuters

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1 Session EF1 Terminations Roundtable (double session) Presented by: David Whitten, Whitten & Lublin, LLP & Annie Chong, Thomson Reuters

2 Termination Presented by: Annie Chong Thomson Reuters Agenda Reasons for termination Canada Labour Code (CLC) Employment/Labour Standards Required notice (Individual) Wages in lieu of notice (Federal versus Québec) Severance pay Retiring Allowance Salary Continuance Record of Employment (ROE) Legal fees/counselling fees 1

3 Reasons for Termination The termination requirements are different depending on who initiates the termination. Employee Initiated when an employee initiates the termination it means they have resigned (e.g., other job opportunities, normal course of events); some jurisdictions require the employee s written notice of termination (e.g., Manitoba 1 week (less than 1 year) & 2 weeks (1 year or more); retirement is another example of a normal course of event, perhaps the employee has decided to take early retirement; or the employee s contract may provide an end date. Employer Initiated an employer must have valid reasons for employee termination (i.e., restructuring, shortage of work, performance issues etc); a minimum standards exist under each employment/labour standards across Canada to which an employer must follow; and always consider back-up to support the reasons of the termination (document, document, and document). Canada Labour Code Employers under the federal jurisdiction abide by the Canada Labour Code requirements and are not subject to provincial/territorial standards. Employers that operate international services such as: banks; highway transport; telephone, telegraph and cable systems; pipelines; canals; ferries, terminals and bridges; shipping; radio and television broadcasting; airlines; railways. 2

4 Employment/Labour Standards Employment/Labour Standards is a branch of the Ministry of Labour which establishes legislation and governs the minimum standard to be followed by employers for the protection of employees; Each province/territory has enacted legislation regarding the minimum amount of notice an employer must give to an employee; The period of notice due will depend on where the employee works and how long the employee has been employed with the company. The employer can either: - have the employee work the notice period, or - pay the employee wages in lieu of notice. Provisions of a union contract or company policy that provides better will take precedence over the employment/labour standards legislation. Required Notice - Individual When providing an employee with notice of termination, the notice should be in writing and delivered either in person or by registered mail. Where the employer is unable to, or chooses not to, provide the notice period, the employee must be paid wages in lieu of notice for the required period of notice; Where an employee serves the notice period, the employer must not alter the employee s rate of wage or any other term or condition of employment; If the employee is paid a lump sum representing wages in lieu of notice instead of serving the notice period, the employee must receive the wages he or she would have earned, exclusive of overtime, had the employee worked the notice period; Wages paid to an employee who works the notice period are subject to regular statutory deductions for C/QPP, EI, QPIP and income tax and these monies are reported on a T4 in box (14) and on the RL-1 in box (A). 3

5 Canada Revenue Agency (CRA) Wages in Lieu of Notice Wages in lieu of notice is considered employment income and subject to Canada Pension Plan (CPP) contributions, Employment Insurance (EI) premiums and income tax deduction (using the bonus tax method); These wages are reported in box (14) of the T4 slip. Revenu Québec (RQ) Employees covered by the Quebec Act respecting labour standards, in receipt of money paid in lieu of notice of termination are deemed to be in receipt of a compensatory indemnity, which is a retiring allowance; This money is not subject to Quebec Pension Plan (QPP) contributions, but they are insurable under QPIP because they are subject to EI premiums. The payments are also subject to income tax deduction (using the lump sum tax rates). For employer contributions, the indemnities are also included for the Contributions to the financing of la Commission des normed du travail (CNT) tax levy; These monies are reported in box (O) of the RL-1 with a footnote code (RJ). Severance Pay In addition to the required notice of termination (or wages in lieu of notice), an employee may also be entitled to severance pay; Unlike notice requirements, which relate to a period of employment. Severance payments are based on an employee s years of service with the employer; Severance is a term that is often used to describe gratuitous payments over and above the legislated pay in lieu of notice; Some companies, whether required by Employment Standards or not, may choose to pay their terminated employee severance pay; Severance pay qualifies as a retiring allowance and may be transferred, tax free, to an Registered Pension Plan (RPP) or a Registered Retirement Savings Plan (RRSP); There are two jurisdictions that legislates severance requirements, the Ontario Employment Standards Act, 2000 and for those who are federally regulated and fall under the Canada Labour Code Part III if certain conditions are met. 4

6 Canada Labour Code Part III: Severance Pay CLC Under the Canada Labour Code, employees who have completed 12 consecutive months of continuous service and who are terminated by the employer must receive the following severance pay: two days wages at their regular rate for regular hours of work (i.e., excluding overtime) for each completed year of employment that is within the term of the employee s continuous employment or five days wages at their regular rate of regular hours of work (i.e., excluding overtime) Whichever is greater. Severance Pay - Ontario Ontario Employment Standards Act, 2000: Under Ontario s ESA, 2000, severance is payable to: - employees with five or more years of service; and - the employer has a total annual Ontario payroll of 2.5 million or more. Severance pay is calculated at one week of regular wages, exclusive of overtime) multiplied by: - the number of completed years of employment; and - the number of completed months in a partial year divided by 12. The maximum amount of severance pay is 26 weeks. 5

7 Severance Pay cont d Severance pay is not pensionable or insurable, but it is taxable. Tax is deducted using the lump-sum tax rates. All provinces except Quebec 10% ($5, or less) 20% ($5, to $15,000.00) 30% ($15, or more) Quebec Federal 5% ($5, or less) 10% ($5, to $15,000.00) 15% ($15, or more) Quebec Provincial 16% ($5, or less) 20% ($5, or more) Severance Pay cont d Note: the lump sum tax rates are only estimates. Therefore, a possible tax liability could result when the employee files their personal income tax return (T1) at the end of the year. Severance pay qualifies as a retiring allowance and may be transferred tax-free, to an RPP or an RRSP. Severance pay is reported in the Other Information area on a T4 using the following codes : code 66 (eligible retiring allowance); code 67 (non-eligible retiring allowance); code 68 (eligible retiring allowance for Indians with tax-exempt income); and code 69 (non-eligible retiring allowance for Indians with tax-exempt income). Do not report severance pay in box (14) on the T4 For Quebec, severance pay is reported in box (O) of the RL-1. In the RL-1 code box (Case O), enter code RJ. 6

8 Retiring Allowance A retiring allowance is a sum of money paid, on or after termination of employment, in recognition of long service or compensation for the loss of office or employment; Payment can only be classified as a retiring allowance if there is no longer an employer/employee relationship; A retiring allowance is usually a single payment, however, it may be paid in installments and still qualify; Retiring allowances are not subject to C/QPP contributions, EI or QPIP (in Quebec) premiums; The amounts are subject to income tax, using the lump-sum tax rates, unless the employee transfers the retiring allowance tax-free to a registered pension plan (RPP) or to a registered retirement savings plan (RRSP); If paid by installments, to determine the tax rate to use, you must look at the entire amount of the retiring allowance to be paid in the calendar year; Circumstances may occur where an individual receives a retiring allowance in installments that span over two or more calendar years. Retiring Allowance cont d Payments that qualify: severance pay; unused accumulated sick pay credits (paid on termination); in recognition of long service; loss of office/compensation; excess wage in lieu of notice; in/out of court settlement; 7

9 Retiring Allowance cont d Payments that do not qualify: regular salary; banked overtime pay; bonuses; car allowance; commissions; vacation pay; legislated pay in lieu of notice (except Québec). Retiring Allowance cont d The amount of a retiring allowance that an employee may transfer, tax-free, to a registered pension plan or to an registered retirement savings plan is calculated at: a) $2,000 for each calendar year (or part year) of employment up to and including December 31, 1995; plus b) $1,500 for each calendar year (or part year) of employment up to and including December 31, 1988 that the employee: i) did not belong to a company pension plan, pension fund or deferred profit-sharing plan or i) belonged to a plan, but the employer s portion was not vested in the employee when you paid the retiring allowance. The $1,500 amount can be prorated according to the percentage of vesting. 8

10 Retiring Allowance cont d Example: An employee, hired September, 1987, was terminated April During his first two years of employment, he did not belong to the pension plan. In his third year, he joined the plan. At the point of termination, he had participated in the company s pension plan for a total of 25 years during which time the employer s portion had vested in him at 100%. The employee received a retiring allowance of $70,000 upon termination. Total amount eligible for transfer to an RRSP is: $2,000 x 9 years (1987 to 1995) = $ 18, $1,500 x 2 years (1987 to 1988) = $ 3, Total amount eligible for transfer: = $ 21, Retiring allowance: = $ 70, Eligible portion = $ 21, Non-eligible portion = $ 49, Retiring Allowance Cont d From the previous example, the employee has requested to have only $10,000 transferred to his RRSP and the balance of $60,000 paid out. Retiring allowance: = $ 70, Amount transferred to RRSP = $ 10, (no tax) Amount taxable = $ 60, x 30% = $18, Year End Reporting: code 66 eligible portion $21, code 67 non-eligible portion $49, Equal the total retiring allowance $70, (Do not report in box 14) For the province of Quebec, report the entire amount of $70,000 in box (O) of the RL-1. In the code box (case O), enter code RJ. Note: The year end reporting requirements have no bearing on what the employees transfers or not transfers. 9

11 Retiring Allowance cont d In order for the amount transferred to be tax-free, the employer must transfer the money directly to the financial institution on the employee s behalf; Upon request from the employee, employers are permitted to transfer the non-eligible portion of a retiring allowance tax-free to his/her RRSP or a spousal or common-law partner s RRSP provided the amount being transferred does not exceed the employee s RRSP deduction limit; The Canada Revenue Agency (CRA) considers that the employer has reasonable grounds to believe the employee can deduct the contribution by confirming with the employee in writing that the contribution can be deducted for the year, or get a copy of their notice of assessment (T1). 10

12 Salary Continuance A salary continuance occurs when the employment relationship between the employee and employer continues to exist after the employee s employment is considered terminated. the employment relationship still exists; the employment is not severed; first indicator is that the company pension is being maintained which means the employee is entitled to accrue pensionable service under the company Registered Pension Plan (RPP) or Deferred Profit Sharing Plan (DPSP); if there is no RPP/DPSP in place or the employee was never a member of the company s RPP/DPSP then look at the group benefits (e.g., medical, dental, etc) being offered; if all of the employee s benefits are maintained, a salary continuance situation may exist; this individual is a ghost employee; if everything is maintained except the only difference is the employee is not physically reporting to work. Salary Continuance cont d Salary continuance payments are considered regular employment income; They are subject to Canada/Quebec Pension Plan (C/QPP), Employment Insurance (EI) Quebec Parental Insurance Plan (QPIP) and income tax deductions at source; These monies are reported on a T4 slip, in box (14) Employment Income and on the RL-1 slip, in box (A), Employment income before source deductions; 11

13 Record of Employment (ROE) Another important requirement for payroll is to issue a Record of Employment (ROE) when an employee stops working and has an interruption of earnings; Employers use the form to report the employee s insurable earnings and hours with the employer; Service Canada uses the information on the ROE to determine whether a person qualifies for Employment Insurance (EI) benefits; Employers may complete and issue a paper version of the ROE or use an electronic version (ROE Web); An interruption of earnings occurs when: an employee has had or is expected to have seven consecutive calendar days during which he or she does not work and does not receive insurable earnings from the employer; an employee stops working because of illness, injury, quarantine, pregnancy, parental or compassionate care leave and his or her insurable earnings (e.g., unpaid sick leave) falls below 60% of his or her normal weekly insurable earnings; An employee begins to receive wage-loss insurance payments; Some exceptions apply. Legal/Counselling Fees Often, as part of the final settlement, the employer will pay the former employee s legal fees directly to the lawyer, in this case there is no requirement to report legal fees or to withhold taxes; If you reimburse the employee for the legal fees (no receipt) this should be reported as income however, no income tax deduction is required. The legal fees are tax deductible when the employee files his or her personal income tax (T1) return. Employer paid counselling fees are not considered a taxable benefit if it is related to reemployment counselling or job replacement counselling for employees whose employment are being terminated. 12

14 Termination Thank you all for participating in our session today! Q & A period. 13

15 Terminations: Managing the Legal Risk David A. Whitten Whitten & Lublin, Employment Lawyers, Toronto, Ontario Pre-termination Considerations Human Rights Age, family status, disability, race/ancestry, marital status Protected leave Family medical, pregnancy, parental, personal emergency, reservist Temporary Lay-off 1

16 Human Rights Provincial and Federal Freedom from discrimination on enumerated grounds Duty to accommodate Undue hardship Frustration of Contract Protected Leaves Pregnancy/Parental Family medical Personal emergency Rights during leave Reinstatement 2

17 Statutory Leaves of Absence cont. Continued Contributions to Certain Benefits Not Required to Pay Wages Obligation to Reinstate Same Salary (with scheduled increases) Same Position OR Comparable Position Statutory Leaves of Absence cont. Failure to Reinstate Claim Pursuant to Provincial Employment Standards Legislation (Ministry of Labour) $10,000 Limit Does Not Apply (ON) Breach of Human Rights Legislation 3

18 Reasonable Notice Statutory termination and severance pay Employment agreement Consideration Enforceable Clear and unambiguous Common law age, years of service and position Common Law Age, years of service and position Inducement/Recruitment Previous service - successor employer 4

19 Severance Package Benefits Total compensation Policy Language Active employment Structuring Packages Working notice or pay in lieu Compensation continuance versus lump-sum Benefits Post-employment obligations Mason v. Chem-Trend (2011) OCA 5

20 Mitigation Dismissed Employee s Obligation to Mitigate Damages Possible Impact on Wrongful Dismissal Damages Lump Sum Payment Salary Continuance o Settlement Agreement Must Be Clear o Reporting Measures Imposed No Impact on Statutory Termination & Severance Pay Evans v. Teamsters [2008] SCC Income Tax Act - Deemed Retiring Allowance Adjusted Taxation Rate, RRSP Contributions and Legal Fees Conditions: Retiring Allowances Employment Relationship Must Cease to Exist Statutory Termination Pay Retiring Allowance Severance Compensating For Loss of Employment = Retiring Allowance 6

21 Additional Damages Mental distress and mental suffering Human rights Disability claims Honda v. Keays [2008] SCC Releases Always get one if you are going to pay more than the statutory minimum! 7

22 DAVID WHITTEN Whitten & Lublin 141 Adelaide Street W., Suite 600 Toronto, ON, M5H 3L5 blog.toronto-employmentlawyer.com Tel.: Fax:

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