Choosing the Right Employment Lawyer

If you have been wrongfully dismissed, given a severance package or handed a new employment contract, you will probably want to consult with an employment lawyer.  How should you choose the right employment lawyer?   Here are some points to think about:

Knowledge and Expertise

Does the lawyer practice exclusively in the area of employment law?  A lawyer who specializes in the area is likely to be on top of the latest cases and trends.   An experienced employment lawyer will have provided advice in hundreds, if not thousands of wrongful dismissal situations and will be able to provide you with an appropriate assessment of your case at an initial consultation.  You should not have to pay for the research or “getting up to speed” time of a lawyer who only dabbles in the area.

Accessibility

Will the employment lawyer you have chosen handle your case personally?  Some firms will promote one lawyer in particular but when you go to arrange a consultation, you might be meeting with a junior lawyer or a lawyer who does not even practice employment law exclusively.  Make sure that you meet with the lawyer that you have selected.  After all, if you are interested in the experience and track record of a particular lawyer, you will not be getting that same benefit with a junior associate.  If the lawyer is not available and proposes that you meet with someone else, check in to that other lawyer carefully before agreeing to a meeting.

Interest and Reasonable Advice

At an initial consultation, an employment lawyer should be prepared to spend as much time as you require to review everything and provide proper advice.  You will need to assess if the lawyer is really listening to your story and if the advice given sounds reasonable and feasible.  The lawyer should be able to review the pros and cons of your case and provide a reasonable range of what the case should be worth.  The lawyer should also review the impact of “mitigation” with you and review any employment contract or offer letter that you might have signed.   You should have a comfort level that the lawyer knows the practice area, understands your situation and has a solid plan for dealing with it.

Fair Billing Practices

Most employment lawyers will charge an initial consultation fee.  The lawyer will review your situation and provide advice.  Sometimes the advice might be that the severance package makes sense for you in all the circumstances.  Nothing further might be required.  Other times, the advice might be that your case is not worth pursuing.  More often that not, there will be some room for improvement if you have been offered a severance package.  Legal fees in employment law situations are generally tax deductible against any severance pay.  Often, the employer will agree to pay the fees.

It is often the case that you will get what you pay for.  If you meet with a lawyer for a “free consultation,” you may not get very much advice about your situation.  At the consultation, the lawyer may ask for a very large retainer or a very high percentage of the results.  Before you go to a free consultation, you should ask about the billing practices that the lawyer will be using if you retain him or her.

Going forward, there are different billing practices that lawyers often use.  You should have a clear understanding of how you will be billed and a reasonable ball park estimate.  Some lawyers will charge an hourly rate.  If this is the case, you should get a reasonable estimate of the amount that is likely to be billed at each stage of the proceeding.  You should check if your lawyer charges a “premium” on top of the hourly rate.  If so, you should be wary of how your bill might be calculated.  If the lawyer is already billing you an hourly rate of hundreds of dollar, what is the “premium” charge for?  Doing a proper job?  If the lawyer proposes charging a premium, ask for benchmarks. And ask for a corresponding reduction in the hourly rate if the results are less than discussed.  This arrangement should all be put in writing.

Other lawyers will charge on a contingent basis or a mixed-contingent basis (mostly contingent with deposits at different stages).  If the arrangement is contingent, you should clarify the percentage and ensure that you are only being charged on any improvement to your severance package.  Some lawyers propose a contingent fee that is based on the entire final severance package, even if there has been an initial offer.  So if you were to walk in the door with an eight month severance package and walk out the door with twelve, you would be paying the lawyer a percentage on the eight months that you already had when you walked in addition to the four month improvement.

For clients, fair billing practices is a very important issue. There are many well known employment decisions in which the case went on for years before a judgment was obtained.  In some of these cases, the only parties to benefit were the lawyers.  The plaintiff was left with little, if any, of the judgment amount after paying the legal fees.  You should ensure that the amount you will be required to invest in your case will, at the end of the day, be reasonable in relation to the results.  You should be prepared to ask questions about any billing arrangements that are proposed and you should be able to come up with a fee arrangement with which you are satisfied.

Diligence and Timing

When meeting with an employment lawyer, you should be able to work out a reasonable timetable for the progress of your case.  Most dismissal cases are time-sensitive and require action quickly.  Your lawyer should be able to get things done within a reasonable time frame.  If your lawyer will not able to get to your file for a few weeks, or longer, you may need to consider finding a lawyer who is prepared to make your case a priority, even if that lawyer has many other cases going on simultaneously.  In most cases, an initial demand letter, if required, should go out within a day or two of your consultation.  You should, of course, ensure that you will be reviewing all correspondence that your lawyer sends out on your behalf before it is send.

Philosophy and Results

It is very important that you choose a lawyer who is going to be well suited to the approach that you would like to take.  If you have been given a severance package that is somewhat reasonable and you are looking for the right approach to have it improved, that may require one type of skill.  In this situation, often a reasonable sounding letter that does not overreach will get great results.

In other situations, where you have been treated unfairly and given a low-ball severance package -or where just cause has been alleged improperly, you may require a much more aggressive approach.

You should also feel free to ask your lawyer about trial decisions.  Note that the actual decision is not the only important thing.  What did the client wind up with at the end of the day?  How did that compare to any offers that were made before  a trial or at mediation.  If the lawyer tells that he or she is always in court in employment law cases, you should be concerned about whether a reasonable approach will be taken in your situation.  After all, the vast majority of employment law cases can be resolved well before a trial unless one side or the other is being unreasonable.

Some lawyers pride themselves on having a very aggressive reputation.  This might work occasionally.  But more often than not, taking an unnecessarily aggressive approach will simply lead to lengthy, time consuming, costly litigation that will not necessarily be in your best interest.  Usually, the lawyer in these situations will ask for a huge retainer to bankroll that kind of litigation approach or will send exorbitant monthly accounts.

Choosing the right employment lawyer is a very important decision and one that could be quite costly if it is not made properly. Meet with the lawyer you have chosen and make sure that the lawyer and the proposed approach are right for you in all the circumstances.

Suing Personal Defendants in Wrongful Dismissal Cases? Might Not Be A Good Idea.

In wrongful dismissal cases, dismissed employees are often interested in suing personal defendants in their lawsuits (as well as the company) in an effort to pressure the defendants into settling.  While this strategy sometimes works, it often causes the defendants to dig their heels in and fight back with a particularly aggressive defence.  It can also get quite expensive.

The recent Ontario Court of Appeal decision in Richards v. Media Experts  is an example of the extent to which a proceeding can become costly and prolonged as a result of a decision to include a personal defendant.

The plaintiff sued the corporate defendant for wrongful dismissal.  She also named her former boss, the executive chairman of the company in a suit for intentional and negligent infliction of nervous shock.

The Ontario Court of Appeal upheld a motions Court decision to dismiss the claim against the personal defendant for two reasons:

1.  The employee had signed an employment contract with a limitation clause, which barred these types of claims from being brought against the company and its officers and directors.  Perhaps surprisingly the Court of Appeal agreed with this argument;

2.  More importantly, the Court of Appeal held that the material facts, as included in the Statement of Claim, showed that the personal defendant was acting on behalf of the company when he fired the employee.  In other words, the allegations of misconduct or improper treatment did not demonstrate that the executive chairman was acting outside of the scope of his employment.  There was an allegation that he was off on a “frolic of his own” but this was not sufficient to show that he was personally responsible.

In dismissing the case against the personal defendant, the Court of Appeal ordered the plaintiff to pay $15,000 in legal costs.

This decision is a reminder that plaintiffs should be very careful in deciding whether or not to sue personal defendants.  The claim must show that the individuals were acting outside of the scope of their employment.  Some examples could include fraud, harassment, conspiracy or other outrageous conduct.  But normally, just because a boss makes a decision to let someone go, that will not be the basis for personal liability on the part of the boss.

The decision also reinforces the importance of employment contracts.  Employment contracts can specify termination arrangements that will be made at the conclusion of employment and can broadly exclude other types of claims.  This case suggests that courts will be quite deferential in upholding these clauses if they are crafted properly.

 

 

 

Ex-Walmart Employee Awarded $1.4 Million Damages in Wrongful Dismissal Case

Dismissed employees and their legal counsel continue to push the envelope in Ontario by using jury trials to obtain large damages awards.  Even though these awards are usually scaled back by the Ontario Court of Appeal or by the Canadian Supreme Court, the wrongful dismissal landscape in Canada is beginning to shift noticeably.

In the latest example, the plaintiff, Meredith Boucher of Windsor, Ontario, was awarded $1.4 million by an Ontario jury.

Ms Boucher had brought a case for constructive dismissal.  She had alleged that she had been forced to leave Walmart after being subjected to sexual harassment and discrimination, intentional infliction of emotional suffering and other misconduct including actual physical assault.

Among other allegations, Ms Boucher had claimed that she was called a “(expletive)” idiot and that she was forced to count skids in front of others to prove that she knew how to count.

The jury of three men and three women took only 2 1/2 hours to make its decision after a two and a half week trial.  Although the jury did not award any damages for sexual harassment or discrimination, it awarded $200,000 for intentional infliction of emotional suffering, $1 million for punitive damages and $10,000 for assault.  The jury also made an award of $250,000 against the assistant manager.

Walmart will certainly appeal and it is likely that the award will be scaled back considerably, given Canadian legal precedents.   However, this type of award and the publicity that it attracts will cause dismissed employees across the country to reconsider their lawsuits and to reevaluate the potential damages that they might receive if they take their cases to trial.

It is worth remembering that these types of awards are only made in cases involving extremely inappropriate conduct. Fortunately, for Canadian employers and employees, these types of allegations are absent in most Canadian wrongful dismissal cases.

 

 

Long Service Employee Gets 26 Months in Wrongful Dismissal Suit

In a recent Ontario Superior Court decision, Hussain v. Suzuki Canada Ltd.,  a long service employee was awarded 26 months’ compensation as damages for wrongful dismissal.

The dismissed employee, Syed Hussain, was an assistant warehouse supervisor.  He had worked for the defendant Suzuki Canada for almost 36 years.  This had been his only full time job after immigrating to Canada from India in 1974.  Hussain was almost 65 at the time he was dismissed in February 2011, due to corporate restructuring.

After losing his job, Mr. Hussain took a period of time to get over the shock and to organize his efforts to find new employment.  He then applied to some 27 positions by July 2011, though his efforts were unsuccessful.

Justice Roberts, writing on behalf of the Court, noted that 24 months is usually the high end of  wrongful dismissal awards.  However, the Court held that Mr. Hussain was entitled to 26 months’ compensation due to the particular factors of his situation including his lengthy service, his age and other related factors.  The Court held that Mr. Hussain was entitled to benefits, RRSP contributions, and a discretionary bonus throughout the entire 26 month period.

Even though this wrongful dismissal case was decided only 10 months after Mr. Hussain was dismissed, the Court still awarded Mr. Hussain 25.5 months’ compensation and reduced the total notice period by only 1% for the contingent possibility that Mr. Hussain could find new employment over the remaining 16 months.

Finally, the Court ordered Suzuki Canada to reimburse Mr. Suzuki for almost $20,000 in legal fees.

This decision follows on the heels of the Ontario Court of Appeal decision in Di Tomaso v. Crown Metal Packaging, a case in which a long service mechanic was awarded 22 months’ notice in June 2011.

It is becoming quite evident in Ontario that long service employees are now entitled to notice periods at the higher end of the range, regardless of the type of position that the person held or the salary level that the employee enjoyed.

This trend is good news for Canadian employees, particularly long service employees who are not employeed in upper management positions.  Although for many years, the longest notice periods were usually awarded by courts only to the most senior employees in wrongful dismissal cases, that is now no longer an accurate summary of the law.  Age will still be a relevant consideration.  Employees who are dismissed after 20 years of service but are still in their 40’s may not be awarded the maximum amounts.  But dismissed employees in their 50’s and 60’s with many years of service will now all have a chance to obtain compensation of close to two years’ pay.

 

Ho Ho! Hold the December Firings

Published in the National Post – December 19, 2002

Downsized. Right-sized. Laid-off. Let-go. Whichever words are used, there is never really a good time to lose a job. But legally speaking, is it worse to be fired just before the December holidays? It may be. December terminations can create a number of special problems in wrongful dismissal cases.

First, there is the timing itself. In many jobs, December is a time of networking. Calendars are filled with invitations to seasonal parties. These can include industry get-togethers, client affairs and of course, the annual company holiday party. In some industries, this is a crucial time of year for developing new business. It can also be a time for rekindling friendships with old clients and other contacts.

Losing these networking opportunities can be devastating. Attending these functions after being dismissed can be difficult and disheartening. Since many of us define ourselves to some degree by our work, unemployment creates a loss of part of our identity. The Supreme Court of Canada has recognized this problem, referring to work as an essential component to our sense of identity, self-worth and emotional well-being.

In a landmark decision in 1997, Canada’s highest court ruled that employees must be treated honestly and fairly when being dismissed. If a person is treated in a “bad faith” manner at the time of dismissal, the bad faith treatment can extend the person’s wrongful dismissal damages. Since the “Wallace decision,” as it has become known, courts across Canada have listened carefully to evidence about conduct that might justify these extra damages. Refusing to give a reference or to pay wages and vacation pay amounts owing are examples of conduct that has been cited. Giving false reasons for dismissal is another example. Firing pregnant employees or employees on sick leave has also met the test. All told, being fired just before the holidays alone may not be mean extra damages. But a court might consider the poor timing as one of the factors in determining whether the employer acted in bad faith.

In one recent case, decided by an Ontario Court on October 18, 2002, Robinson Group Limited had decided to hold back three weeks’ wages when it dismissed Mary Black in December 2000. The Court called the Robinson Group’s actions “unconscionable” and awarded an extra two months’ pay to Ms Black on top of her twelve-month notice award.

Even if there is no bad faith in the way a person is fired, December dismissals can still lead to longer notice periods. Most employees dismissed in Canada are entitled to reasonable notice or payment instead of notice. There is no set formula. The Ontario Court of Appeal has called the process of setting notice periods an art rather than a science. Courts award these notice periods based on a person’s length of service, age, position and other related factors. The goal is to estimate the expected time needed to find a new similar job. Since few employers are actively recruiting in December, employees may need additional time if dismissed this time of year.

Another difficulty is the loss of a bonus. Bonuses are often paid either just before Christmas or just after the New Year. Some are calculated to year-end but paid later. If an employee is dismissed just before the holidays, can the employee still collect the year-end bonus?

Here the answer is usually easier. During the reasonable notice period, employees are entitled to be compensated for everything that they would have had if they had continued to work. So if a bonus would have been paid, dismissed employees should still be entitled to it. This might not mean getting the annual Christmas present but at least it is some consolation.

Employees who are let go this time of year should put together a careful record of everything they are missing as a result of the timing; parties, bonuses, presents and networking opportunities. It may all be relevant evidence for a judge to consider in setting a notice period.

For employers, it often seems easier to get expenses off the books before the end of the year. Starting out with a clean slate, especially after a rough year, can be attractive. But before jumping too fast, employers should weigh the human toll of ill-timed terminations. Although waiting one more month might make things more difficult from an accounting viewpoint, accounting is only one part of the equation. Any steps that employers can take to help their dismissed employees to get resettled and find new work are steps that can save money on severance pay. Handling dismissals in an honest, professional and compassionate manner is sound business practice. It fits the Supreme Court’s guidelines on dealing with employee dismissals. It may save money. And more often that not, it means letting employees enjoy their holidays and dealing with reorganizations early in the New Year.

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