Does short-term disability benefits paid to a terminated employee from September 17, 1991 include overtime payments made by the terminated employee in the calculation of damages for wrongful dismissal?

Ontario, Canada

The following excerpt is from Wurster v. Universal Environmental Services Inc., 1998 CanLII 7183 (ON CA):

The respondent was fired without cause. Paragraph 3(1)(e) of the contract provides that upon termination the respondent was entitled to “payment equivalent to six months remuneration.” As we interpret paragraph 3(1)(e), the respondent, having been fired on September 17, 1991, was entitled to the equivalent of 6 months’ remuneration at that time. Because of the contractual language, it did not matter whether the respondent obtained other employment, or received short term disability payments in the six months following September 17, 1991. Our conclusion in this regard is based upon the provisions of the contract of employment. In result, we do not have to decide the issue whether disability benefits paid to a terminated employee through a short-term disability policy should be deducted from damages for wrongful dismissal, where part of the short-term disability policy premium has been paid by the employee. See Sylvester v. British Columbia, 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315. 4. Should overtime have been included in the calculation of the payment to which the respondent is entitled?

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