Where should dismissed employees go for legal advice?
A caller to my CFRB employment law talk show last week said she
had found a free severance pay calculation online. After plugging
in her age, salary and length of service, she was informed she was
entitled to considerably more than her employer had offered and was
directed to call the law firm that promoted this service. The firm
reinforced that amount and promised to get it for her if she paid
money to retain it.
During our discussion, I learned that, rather than being
entitled to more, her employer's offer was greater than she
could ever receive in court.
Curious, I went to the website, purporting to be a 42-year-old
graphic artist, employed for eight years and earning $50,000 a
year. Such an individual would likely obtain six months pay,
certainly no more than eight. However, this free service, which
directs one to its sponsoring law firm at every turn, assured me I
could get an absolute minimum of nine months severance and as much
Next, I inserted the facts from the Ontario Court of
Appeal's case in Ahmad vs. Proctor and Gamble. Mr. Ahmad, a
sales forecaster with 16 years of service with the company, was
awarded only four months severance after trial, an amount
reaffirmed on appeal. The court said it would have awarded him 12
months (with which I agree) but for the warning he had received
some time earlier of the likelihood of dismissal at some indefinite
date as result of technological change. The website declared him
entitled to a range of 16 to 20 months.
On the other end is Mr. Shtabsky, who lost his job as manager of
Dubeta Interiors, after only two weeks because the owners deemed
him a poor fit. The Alberta Court awarded him 12 months. Even this
Internet site was not that optimistic.
The Law of Dismissal in Canada, recites approximately 150
factors courts have considered in various cases in determining
severance. No online severance formula can possibly replicate the
court's approach. Severance calculations are an art — an
estimate based on reviewing thousands of other dismissal cases and
seeing what factors the courts rely on and how they interrelate
with particular facts. Such judgement cannot be recreated in any
Don't end up paying for your lawyer's education
As most readers know, the Internet is the regulatory embodiment
of the Wild West. You will find lawyers advertising themselves as
employment lawyers. But, when you look for car accident lawyers,
commercial litigation lawyers, divorce lawyers or any of a host of
other specialities, you will find the same lawyers' names.
Ensure your lawyer practises nothing but employment law and has
done so for long enough to be seasoned.
You get what you pay for
On too many occasions, I have had to clean up after lawyers
providing free consultations. In one recent case involving a senior
executive who had had just such a consultation, one of my partners
found more than $1,000,000 in additional pension and benefit
entitlement overlooked by the first lawyer. Free consultations are
usually hurried sales jobs, with little actually reviewed. It
should raise a red flag when you see a free consultation advertised
by any lawyer outside of personal injury (where every injured
person has a case).
Trial experience is an important measure
In my field, there are even senior lawyers who have never done a
trial in their careers and few have done very many. This problem is
compounded by the system that promotes settlement at every turn;
compulsory mediation, pre-trial and sometimes a second pre-trial
right before the trial — anything the system can do to
prevent trials. It is increasingly difficult for junior lawyers to
even gain trial experience. You may ask, if there are few trials
(more than 99% of dismissal cases settle at some stage), what
difference does trial experience make?
Actually, a great deal. When my opponent is a lawyer who avoids
trials or lacks litigation skills, my settlement numbers change. If
I am acting for an employer, I will offer less; if for an employee,
I will insist on more, knowing the lawyer will not want their first
case ever to be against me.
Ask your lawyer how much trial experience she or he has and when
they were last in court, as well as their record. That will tell
you what credibility they will bring to bear for you. Too many
lawyers take advantage of their clients' lack of sophistication
by settling the case quickly but badly and then telling them what a
great settlement they obtained and charging accordingly. Its
generally simple to get a little more than most employers offer but
getting the full entitlement takes effort and credibility.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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