Former IBM Canada Worker Wins Six-figure Payout For Wrongful Dismissal

IBM Canada has lost its bid to challenge a judgment that it wrongfully dismissed a former employee.

On Monday, the Court of Appeals of Ontario dismissed IBM's appeal, which sought to reverse a lower court's decision that the company had failed to provide adequate notice when it dismissed veteran employee Greg Milwid.

As a consequence of that ruling, the court ordered IBM to pay about $200,000 (US) in wages for the designated 27 month notice period and about $40,000 in Restricted Stock Units (RSUs) that vested after the employee's dismissal. Big Blue was also handed a bill for roughly $15,000 in legal fees for the failed appeal.

Asked whether he thought age played a role in his layoff, Milwid said: "I do believe there was an age discrimination element, although we did not pursue this in the case as that is extremely difficult to prove and we had arguments based on case law that were easier to bring forward and justify."

Greg Milwid started working for IBM in early 1982 as an application developer in South Africa. Around 1998, he emigrated to Canada and continued his work for Big Blue's Canadian Software Development and Marketing team.

On May 21, 2020, Milwid received notice that he would be laid off – an event IBM calls a “Resource Action” (RA). His title at the time was Program Director – Go to Market for Asset Performance Management. When his employment ended after 38 years of service on August 7, 2020, amid the COVID pandemic, Milwid was 62 years old.

In November 2018, Milwid was awarded a retention bonus that included RSUs. At the time he was let go, he had been expecting to receive 444 RSUs that would vest on November 14, 2020 and another 444 RSUs due to vest on November 14, 2022.

But the legal language in IBM's Equity Award terms and conditions allowed the company to deny unvested RSUs upon termination.

"IBM's initial severance package was significantly below what the courts agreed was reasonable," Milwid told The Register in an email. "All subsequent offers to settle were well below what was reasonable, and in all offers, they declined to compensate me for the RSUs which would have vested literally weeks after my last day at the office."

When the matter came to court, Milwid's attorneys challenged the dismissal as unjust and argued that IBM failed to make its Equity Award terms clear.

"IBM failed to take reasonable steps to ensure that Milwid understood any harsh or oppressive provisions," Milwid's lawyers from the firm Israel Foulon Wong LLP said in their submission to the court.

"Specifically, Milwid was not informed that he would be disentitled to his RSUs upon the termination of his employment, he did not agree that he would be disentitled to his RSU awards if he was terminated without just cause and without advanced notice and he had no effective knowledge of the specific terms which purported to govern the plan."

• Now IBM sued for age discrim by its own HR veterans
• Leaked Kyndryl files show 55 was average age of laid-off US workers
• IBM, Kyndryl cut jobs even after cutting ties
• Now IBM Watson Health, sorry, Merative decimates staff

On January 26 the lower court, Ontario's Superior Court of Justice, concluded that Milwid, due to his age, long employment, seniority at the company, and other factors that limited his ability to find other jobs, was entitled to 27 months of notice rather than the 11 weeks that he received.

That's enough to entitle Milwid to significant lost wages and RSUs that vested in November, 2020, though not the later set that would have vested in 2022 had the notice period extended that far.

Milwid said he was not aware of others who have faced a similar situation, but he suspects his case may have implications beyond Canada.

"My conjecture is that the reason that IBM went to such lengths to defend this case, despite there being precedent in Ontario for longer notice periods than they offered me in their RA package (and ALL subsequent offers to settle) is that the RSU documents are international, and this judgment may have repercussions in a much broader context than just Ontario," he said.

Milwid observed that despite having worked for IBM for 38 years, the company never thanked him for his service or even offered the courtesy of a goodbye meeting. "I simply received a note to return my badge and laptop," he said.

He advised other IBMers facing RAs to make copies of their documents, in case of potential legal action, and to consult a labor lawyer before accepting any IBM layoff package.

"IBM has deep pockets and can drag a case out to its ultimate end, regardless of cost or merit," he cautioned. "Fighting IBM in court is expensive, so at every step of the legal journey, weigh up the potential costs, benefits and risk before accepting or declining any offer from IBM and before proceeding."

Milwid said he does not think IBM has any further plausible legal options to resist complying with the judgment. "I believe it is the end of the road." he said.

IBM did not respond to a request for comment. ®