Un aspirant-PDG reçoit 10 mois en indemnité de départ après 5 ans à l’emploi

Par Me Paul-Matthieu Grondin

Dans le jugement de la Cour supérieure Hannigan c. Plastiques IPL inc. et al, un vice-président finances, qui souhaitait de venir PDG, est remercié de ses services pour cause de restructuration.

Les parties s’entendent à savoir que la compétence du demandeur n’est pas remise en question et que le motif de la fin d’emploi est réellement une restructuration, ce qui simplifie la cause, et nous laisse deux questions classiques à étudier : (1) la durée du préavis raisonnable et (2) la mitigation du préjudice.

L’employé a 42 ans et, au moment des faits, suivait un processus d’immigration ayant rencontré sa future épouse au Québec, ce qui a joué dans la décision.

L’ex-employeur prétendait devoir 6 mois de salaire, ce qu’il avait par ailleurs versé, et l’employé plaidait 24 mois. Le juge a finalement tranché à 10 mois et déclare que le demandeur avait mitigé son préjudice (i.e. qu’il s’était retrouvé un emploi comparable rapidement).

Voyez ici l’essentiel de la décision :

[58]        The Court agrees with Plaintiff that a longer notice period was warranted.

[59]        Here is why.

[60]        Plaintiff had signed a contract of employment for an indeterminate term just eight months before being made redundant during the Covid-19 pandemic. IPL knew that it would be impossible for him to find alternative employment in Canada under his existing closed work permit. This is so true that IPL was paying for his legal fees incurred to settle his immigration issues. Clearly, a six-month period was insufficient. As the Court of Appeal put it in Standard Broadcasting Corp. c. Stewart[26], the “délai-congé doit être suffisamment long pour permettre à l’employé de retrouver une occupation lucrative, mais pas long au point de rendre illusoire l’exercice même du droit de congédiement de l’employeur”.

[61]        The fact that Plaintiff was an upper-management employee also militates in favour of a notice period longer than six months.

[62]        The Court cannot ignore either that it is at the request of the Group that Plaintiff came to work in the Québec area although his decision to settle down there permanently is explained by purely personal motives.

[63]        Should he have been given a 24-month notice?

[64]        The Court thinks not.

[65]        At the time of his dismissal, Plaintiff was just 41 years old. He had left KPMG to join the Group to pursue other opportunities.

[66]        During the negotiations for his new contract of employment, Plaintiff was given the opportunity to go back to his old job in Dublin but refused for marital reasons. Unless he and his wife were willing to leave Canada, he had no other option but to work for IPL until such time as he obtained an open work permit or a permanent resident status. Hence, he cannot argue that he signed his new contract because of a long-term commitment on the part of IPL.

[67]        Plaintiff’s situation is very different from that of a person who is enticed to leave a well-paid job with a long-time employer to join the ranks of another employer under the promise of a long-time commitment[27]. The fact that Plaintiff may have been led to believe by Mr. Walsh on September 7, 2020, that he would be given more important responsibilities in a near future does not justify either a more generous notice period. Indeed, at that time, his new contract had already been signed.

[68]        Furthermore, the facts of the present case differ from those of Aksich c. Canadian Pacific Railway[28] on which Plaintiff places great reliance. In that case, a 51-year-old belonging to the upper middle-management was awarded a 24-month notice period after having accumulated a total of 27 years of employment including 20 consecutive ones. This is a material distinction with the case at hand where the length of employment was much shorter.

[69]        All things considered, the Court is of the view that the particular circumstances of the present case warranted a ten-month notice period. At the time of his dismissal, it would have been reasonable to assume that Plaintiff needed a period of ten months to seek new employment and to obtain his permanent residency or at least an open work permit.

[70]        Hence, Plaintiff is entitled to receive an additional four-month notice.

[71]        IPL argues that the Court should not include in the calculation of the damages his bonus for the year 2021 as a bonus is earned after a full year of work. The Court disagrees. Pursuant to his new contract of employment[29], his bonus was set at 30% of his annual base salary in the amount of $292,500. This contract further provides that “the actual payment [of such bonus] will be a function of corporate, divisional and individual performance against objectives predetermined by the Company”. The evidence shows that ever since Plaintiff joined the ranks of the Group, he was always paid his bonus[30]. IPL did not adduce evidence demonstrating that in all likelihood, it would have been otherwise in 2021.

[72]        As for IPL’s contributions to Plaintiff’s pension plan, they are set at 11.5% of his annual base salary. Hence, their value is easy to calculate.

[73]        Finally, as to his claim for social benefits, the evidence is meagre. It boils down to his company vehicle for which the Court has very little evidence as to its value. The Court has no choice but to arbitrate the value of this benefit. For a four-month period, the Court sets this value to $4,000.

[74]        The cash value of the additional four-month notice period Plaintiff was entitled to receive is broken down as follows:

•       Base salary: $97,500 ($292,500 x 1/3);
•       IPL’s pension plan contributions: $11,212.50 ($292,500 x 11.50% x 1/3);
•       Bonus: $29,250 ($292,500 x 30% x 1/3);
•       Social benefits: $4,000;
•       Total: $141,962.50

[75]        If applicable, withholding taxes will have to be taken into account.