THE QUESTION
When let go from a permanent position after almost 30 years, HR gave me a choice of one year's pay or 16 months of income protection. My lawyer asked for 24 months' pay owing to length of service and the fact I was 64. The company, claiming we did not respond within its time frame, reverted to income protection, which entails constant job searching and follow-up. My doctor wrote a note that I was in "no condition" to be job searching. On one hand, my lawyer has advised me to ignore all calls from HR. Alternatively, she suggested applying for jobs anyway. I find this conflicting.
THE FIRST ANSWER
Daniel Lublin
Partner at Whitten & Lublin employment lawyers, Toronto
The original offer to you was low, given your age and tenure. For example, one of my clients who worked for 30 years and was 60 years old when she was terminated was recently awarded 24 months' severance pay by a judge. Although there are some exceptional cases where more than 24 months' severance can be awarded, this is usually the upper end of the spectrum.
Keep in mind that severance pay is not an unconditional payment. It is compensation while you search for another job and there is a legal requirement that you take reasonable steps to look for one. If a judge believes you could have found comparable work, if you looked for it, your damages could be reduced.
This is likely why your lawyer suggested you apply for jobs. However, in my experience, judges do provide a lot more lenience to older and longer-term employees. In the case above, the judge found my client was at a "competitive disadvantage" compared with younger employees and that her age was a significant "impediment." For this reason, there was little expectation she would find other work even if she looked. Consider making similar arguments in your case.
THE SECOND ANSWER
Eileen Dooley
Vice-president, VF Career Management, Calgary office
Income protection, otherwise known as salary continuance, is a less common method of severance. It does not sever the employee-company relationship, therefore making closure very difficult, if not impossible. The employee is effectively still on the payroll, rather than receiving a lump-sum payment, which is a one-time payout, and the employee/employer relationship is over. In many cases, salary continuance, since it is usually larger than a lump sum, comes with conditions imposed by the employer. In your case, they seem to want evidence of job searching. Conditions may also include that once "reasonable" or "comparable" employment is secured, the continuance ceases. Or sometimes, the rest is paid out by lump sum, so it is important to understand what the conditions are.
That being said, when the employer either pays a lump sum or salary continuance, the employer is essentially mitigating the situation – providing money to bridge the financial gap between the employee's former job and next job. In turn, the employee is also expected to do his or her part to mitigate the situation. In other words, look for a job, and this can mean in various ways, from looking online to meeting people for coffee and spreading the word. Whatever the condition your doctor is referring to, there is usually something you can do to get the word out that you are looking for a job. Ask your doctor what you can do to look for a job, keeping your health front and centre. By accepting the salary continuance, you are agreeing to their terms and need to demonstrate some efforts to find employment.
Daniel Lublin
Eileen Dooley