Holiday bonuses (and gifts) are commonly appreciated, morale-boosting and an opportunity for employers to express gratitude to employees collectively at the end of the work year.

However, if expectations are not met, they can also cause strife, conflict and, in some cases, litigation.

Bonuses are not legislatively governed in Ontario; rather, they are considered a contractual matter between employers and employees. There is no legal requirement for an employer to pay a holiday bonus, unless contractually required to do so. However, if a bonus paid to an employee on a year-over-year basis evolves into part of that employee’s overall compensation, the employer may by law be required to pay it the employee in future, including during a reasonable notice period following a termination without cause.  Employers may also adopt a workplace policy regarding bonuses, which typically govern availability, amount and other criteria.

Generally, if employers pay a holiday bonus, or an amount beyond employees’ regular pay, it is either:

  1. a fixed, recurring holiday bonus annually, usually of a fixed amount, not typically based on work performance or the financial success of the employer’s business;
  2. a pre-determined bonus amount, usually based on either, or both, the employee’s and the business’ performance, often based on set criteria pursuant to a workplace policy; or
  3. a purely discretionary bonus, decided by the employer each year.

If an employer pays a holiday bonus historically, but changes its mind this year, like Mr. Shirley, an employee’s employment contract should be considered. If the holiday bonus is an important term, the employee may legally be entitled to the bonus. If there is no employment contract, the holiday bonus may have formed a part of the employee’s annual compensation, giving the employee a potential claim to the holiday bonus.

Before employers change their holiday bonus policy or traditional practice, they should review their employment contracts and workplace policies and, if they do not require payment of the holiday bonus, notify employees in advance of the decision to pay no, or a significantly less, holiday bonus. How much notice should be given will likely vary between employees, depending on their duration of employment, nature of their position and even age.

If an employee is terminated without cause, the employee may be able to successfully claim payment of a holiday bonus as part of the wrongful termination damages. It will depend on the terms of the employee’s employment contract and, if none, whether the bonus would be considered a recurring part of the employee’s annual compensation. If the holiday bonus has been purely discretionary by the employer, it is likely the employee’s claim would not be successful.

Generally, in Ontario employment law, if an employer gives an employee a holiday gift (not a payment of money), it is considered by the Court to be discretionary, gratuitous and not binding on the employer in future.

However, a workplace governed by a collective bargaining agreement may be different. In a recent case in Quebec, an arbitrator dismissed a grievance of the employer’s unilateral decision to stop giving employees a $50 gift card at Christmas. It was considered a discretionary decision in this case, based on the specific language of the collective bargaining agreement. However, a different outcome may have been reached for different collective bargaining terms.

For example, other arbitral decisions in Quebec have held that Christmas gifts by employers were determined to be conditions of employment and, therefore, protected by the ‘vested-rights’ clauses in those collective bargaining agreements. Employers that unilaterally stopped these holiday gifts faced a costly and unfavourable grievance process.

Therefore, if you get a “Jelly-of-the-Month Club” card this year, like Clark W. Griswold, when you were expecting much more based on years past, you may have a claim against your employer, but it will depend on your employment contract, if any, past practices by the employer, and whether your historically-received holiday bonus was recurring, not governed by any workplace policy and not nominal in value.

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