Difference between revisions of "Employment Law Issues (9:V)"

There is authority for the inclusion of estimated tips in an award of damages for wrongful dismissal: Patriquin, ''Pier Marine Pub Ltd. v. Brown'', 1992 BCJ No 2868 (BCSC). Where a plaintiff’s earnings are in part from cash gratuities, damages reflecting that lost income are not assessed as the amount that the plaintiff declares and pays taxes upon: ''Chapple v. Umberto Management Ltd., 2009 BCSC 724''

At common law, the employee is only entitled to be compensated for wages and benefits to which he or she would have been contractually entitled during the notice period, and not for any ex gratia expectancies (see ''Swann v MacDonald Dettwiler and Associates Ltd'', [1995] BCJ No 1596 (QL) (SC)).  

Courts have a wide discretion to determine the appropriate damages based on the evidence of the plaintiff’s pre-dismissal earnings (''Davidson v Tahtsa Timber Ltd'', 2010 BCCA  528). If an employee’s earnings have varied in the years prior to dismissal, some courts in BC have calculated damages by averaging the employee’s annual wages (see ''Krewenchuk v Lewis Construction Ltd'', [1985] BCJ No 1553 (SC). Where remuneration is based on an annual salary and not an hourly rate, a court may still assess damages on the basis of the average salary paid in the years prior to dismissal (see ''Goodkey v Dynamic Concrete Pumping Inc'', 2004 BCSC 894)  

Where an employee earns a variable income, courts may average the rate of pay within the relevant notice period for calculating damages; see ''O’Dea v Ricoh Canada Inc.'', 2016 BCSC 235.)