Compensation for Pension Benefit Losses in Unlawful Dismissal

Abstract

This paper describes, firstly, how the real-world pension benefit losses of an unlawfully dismissed employee are dictated by three main variables: the benefit structure of the plan; the legal structure of the plan; and the employee\u27s position in the labour market. Secondly, it shows that the common law measure of damages in a wrongful dismissal action fails to compensate adequately those losses. In contrast, the measures of damages in collective agreement arbitration, and in adjudication pursuant to section 61.5 of the Canada Labour Code\u27 create the potential for a more realistic approach to compensating the employee for his real-world losses. Thirdly, comparison is made with the more fully developed jurisprudence under the British unfair dismissal legislation. Fourthly, some guidelines for compensating the real-world pension losses of the employee are suggested for Canadian legal umpires

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