Recently, someone asked me whether they could sue their employer after they were dismissed and the employer provided them with a good reference on LinkedIn. The short answer is: not really. But, like all things legal, it depends. Here are two common scenarios:

Employer dismisses employee without cause, but provides a good reference
Any employer can dismiss an employee, without cause, as long as they ensure that the employee receives proper notice ahead of time that the employee’s employment will end. The employer can choose to require the employee to work out the rest of his or her employment; or, the employer can choose to pay out the employee’s remaining employment salary and benefit entitlement. Either way, the employer is not providing any reason for the termination and is not required to provide one. So, providing a good reference on LinkedIn does not enable the employee to somehow claim extra damages against the employer.

Employer dismisses employee with cause, without notice, but provides a good reference
This is a very unusual situation. But, I am told that it happens. This is a dangerous situation for the employer to be in. By dismissing the employee without giving him or her notice or some severance package, the employer acts as if it had a good reason to dismiss an employee without providing proper notice. These situations are EXTREMELY rare. Situations that would justify this include theft, fraud, significant insubordination, and other behaviour that damage the trust between employer and employee. A simple mistake on the job would not normally enable the employer to terminate an employee with cause and without notice. Employer can choose to make this decision; however, if they go on to provide a supportive reference to the employee on LinkedIn, then the employer can expect the employee to argue something like the following:

• my employer’s reference demonstrates that I was doing a good job;
• my employer does not, and did not, have good cause to dismiss me;
• if my employer wanted to dismiss me, then they should have given me notice;
• I didn’t get notice and so I can sue them for wrongful dismissal

It’s just inconsistent for an employer to dismiss an employee for cause (without notice) and then go on to say how great of an employee he or she was. Furthermore, employers expose themselves to potential (rare, but possible) litigation if their reference and endorsement turns out to be wildly false and misleading.

Recommendation
So, in short, if you’re an employee, appreciate the LinkedIn endorsements whenever and however you get them, even if they’re from an employer who just fired you. Employers - be truthful and consistent about why and how you dismiss your employees, including how you communicate that event to the public.

If your employer chooses to end your job, they must give you a certain amount of notice.  The amount of notice you get is determined by three factors, in order of priority:

• Provincial employment standards
• Your contract or union collective agreement
• Common law

Here’s what that looks like in real-life terms.
1. Provincial employment standards:
Your employer can never give you less than what an employment standards statute says.  So, in B.C., if you’ve been working for your employer a year, you get at least two week’s notice, no matter what.

2. Your contract or union collective agreement
If you have a contract (usually written) with your employer that contains an agreement about how much notice you’ll get if you lose your job, your employer must give you what’s in that contract, so long as it’s more than what the statute gives you.  This applies for union collective agreements too.  If you have a fixed-term employment contract, your notice period should be until the end of the fixed term, unless there was an early termination clause.

3. Common law
If you don’t have a contract with your employer, then you get what the common law gives you.  Since the 1950s, Canadian courts have consistently applied the same variables with no exceptions.  They look at your age, your length of service with the company, the kind of job you had (front-line, supervisor, manager, professional, executive, etc.), and how long it would reasonably take you to find another job.  The first three variables are clear-cut. But the last variable – how long it would reasonably take you to find another job – can be very difficult to prove without a huge up-front investment in research.  Therefore, the courts most often spend a lot of time on the first three variables.
In all cases, courts will compare your age, length of service, and kind of job against previously decided cases and make a judgment call based on precedents set in similar cases.

A customer (who explicitly asked not to be identified) recently asked us some really good questions.  I wanted to expand on one of the answers to a question asked.  The paraphrased question was, “All of the cases on www.CANLII.com seem to involve an employee who had real issues.  I’ve got a pretty good work history.  Would the cases still apply?”  The short answer is yes!

Recall that www.canlii.org is the free website offered by an association of courts, law societies, and legal libraries across Canada to publish case reports online.  Whenever someone sues another person and that lawsuit is decided by a judge (rather than settled out of court), the judge’s decision is published as a document with the judge’s reasons for coming to that decision.  In the pre-internet days, these decisions were published on paper and made availble to the general public at the courthouse.  With the advent of the internet, courts are now publishing their decisions directly online.  www.FiredWithoutCause.com refers to those electronic cases.

As I stated earlier, many (in fact most) cases settle before they go to trial and are heard by the judge.  In plain vanilla type cases, when a dismissal does not involve some allegation of employee misconduct, incompetence, or otherwise known as “cause” to lawyers, most of these cases settle since the only real issue is how much notice is fair.  Most often, lawyers will use commercial services similar to FiredWithoutCause.com to get previous cases of wrongful dismissal to know what courts have determiend as “fair” notice periods.

The cases that do go to trial generally involve cases where the employer alleges some form of cause, such as some form of dishonesty, fraud, theft, or gross incompetence.  Employees may allege that the employer treated them particularly badly to justify a claim for what lawyers call Bad Faith Dismissal, emotional or aggravated damages, or punitive damages.  Sometimes, either the employer or employee will allege that the nature of the employment contract changed over time, therefore justifying some different kind of obligation.  In all of these cases (there are others, but these are among the more common cases), the employer and employee disagree over these facts and will fight quite hard over them.  These cases are more difficult to settle out-of-court and are therefore more likely to be decided by a judge.  Therefore, these cases tend to be over-represented in court decisions, giving the casual observer the impression that cases in CANLII tend to involve employees with “issues”.

Even in plain vanilla type cases, lawyers can and will rely on these difficult cases.  First, not all wrongful dismissal cases that reach the courts involve such dramatic facts.  Many of them involve fairly straightforward facts to determine a notice period.  Second, in many cases that involve fairly dramatic facts, courts will still state what a fair notice period under normal circumstances would be absent the aggravating facts and then discuss how the notice period is shortened or lengthened depending on the aggravating facts.  Consider the leading Supreme Court of Canada case in Wallace v. United Grain Growers: http://scc.lexum.umontreal.ca/en/1997/1997rcs3-701/1997rcs3-701.html in which the Supreme Court of Canada agreed that in limited circumstances, an employer that dismisses an employee in a particularly disrespectful, not consistent with an employer’s duty to act in good faith to its employee, way may cause a court to award a notice period that is on the longer end of the scale.  Using this principle, a court must still review previous cases of wrongful dismissal with similar objective facts (age, length of service, etc) to see what that range would be before picking an appropriate notice period on the longer end of the scale.

So, even if the cases may seem dramatic, courts must still decide cases using established legal principles and precedent.  To ensure that everyone is treated fairly, courts tend to create decision rules that enable them to make consistent decisions over time and between people.  This exercise inexorably causes them to develop decision processes that decreases the influence of facts that are idiosyncratic to an individual case (such as those more dramatic facts) and gives greater weight to objective facts that similar litigants can share, like age and length of service.

For the past couple of weeks, several of our visitors and customers have asked whether it matters that their reports generated by our Severance Package Calculator show cases from Provinces other than those in which they live.  It doesn’t.  Here’s why.

I’ve mentioned in earlier posts that the law governing reasonable notice is governed by two basic sources of law: statutes (government-made law) and common law (judge-made law).  Employment standards statutes are laws passed by our elected officials to regulate certain aspects of employment.  All Canadian provinces and territories have enacted employment standards statutes.  Each of those statutes have sections on the minimum amount of notice that an employer must give to an employee if the employer intends to terminate an employment relationship.  In theory, this would mean that the Province in which you live has an important influence on the law governing your severance; however, in practice, the Provinces have similar, if not identical, minimum requirements and so that impact, in practice, has little influence.

More importantly though, the common law governing reasonable notice appplies across Canada.  To fully understand this effect, you need to understand three concepts: legal precedent, paramountcy, and comity.  I’ll talk about each in turn:

Legal Precedent: This is the concept that cases should follow legal concepts established by previous cases.  So, if one judge applies the law to a certain set of facts, a judge in a future case faced with the identical set of facts should decide the case identically.  A courtroom lawyer’s skill is often found in helping a client present a different set of facts to avoid having previous decisions apply to their client’s case.  Or, a lawyer will try to present their client’s case such that they can argue that the case is identical or similar enough to a previous case such that the judge should decide the case exactly how the previous judge did.  This concept enables lawyers to assess their clients’ case with reasonable confidence.  Without this principle, no one could advise a client as to how a case would be decided since there would be no certainty as to what previously established principles would apply to a case.

Paramountcy: Courts follow the law established by higher level courts.  Canadian courts generally follow a hierarchy with appeal courts having “higher” precedence over trial courts.  The most authoritative court is the Supreme Court of Canada.  All other courts in Canada must follow the decisions and reasoning established by the Supreme Court of Canada, especially if the facts of an individual case engages a principle addressed by the Supreme Court.  In turn, the Supreme Court of Canada restricts itself, generally, to addressing only those cases in which they can establish rules that would apply generally across the country or describe broad principles of law.  It will also resolve situations where different provinces have established different ways of approaching a problem where the country would benefit from harmonizing those approaches.

Provincial appeal courts (also called appellate courts by lawyers) are the next level of court in the hierarchy.  They oversee the consistency of legal rules within the Province over which they preside.  As the courts describe it, they often ensure that trial courts are applying the law consistently, correct errors, and are often the front line in establishing rules in novel areas of law.

The trial courts are the frontlines in Canada’s justice system.  It’s in these courts that you see the kinds of trials akin to those you see on T.V., with witnesses, documents, sharp arguments, and juries.  Broadly speaking, trial courts decide the facts of a case, especially when people don’t agree on the facts; and then they apply the prevailing law to those facts and render a verdict.  Trial courts must follow the decisions and reasons established by their appeal courts.

Comity: This is the idea that courts will respect the decisions and legal principles rendered in other provinces.  For example, a B.C. court is not constitutionally required to apply the same rules established by a trial court in Ontario.  However, that trial judge will, where appropriate, follow the decision of the Ontario judge to ensure that legal principles are applied consistently across the country.  The difference though is that a B.C. court may choose not to follow that decision and may openly disagree with the decision - which is how different Provinces may end up with different approaches to the same legal problem, requiring the Supreme Court of Canada to resolve the difference.  If a B.C. trial court judge disagrees with the rule established by his or her court of appeal, that judge should not refuse to apply that rule (though it does happen from time to time); they must follow their Court of Appeal or the Supreme Court of Canada.  In contrast, they can choose to accept or reject the reasons employed by an appeal or trial court in another Province.  However, more often than not, the trial courts will consider and apply appellate court and trial court decisions rendered in another Province even though they don’t have to because of the principle of comity.

So, what does this all mean for our case report?  The legal principles that govern the calculation of notice periods is standard across the country.  The Supreme Court of Canada has consistently affirmed principles that have harmonized laws across the country.  Provincial appeal courts have upheld those principles.  Therefore, it’s left to the trial courts to apply those laws to the facts that they decide.  Those facts are always changing from case to case.  If the principles are well-established, a judge will try to decide a case consistently with previous cases that have similar facts. This is how FiredWithoutCause.com works.  We have catalogued Canadian wrongful dismissal cases according to certain variables that are nearly universally applied in all cases because the common law establishing those variables have been affirmed by the Supreme Court of Canada and appellate courts across the country.  A lawyer analyzing your case would not focus so much on the applicable legal principles since they are well known.  Instead, lawyers will focus on the facts of your specific case, targetting the variables we use at FiredWithoutCause.com, to assess what a reasonable notice period might be.

So, if you were to give our case report to a judge, that judge would theoretically go down the list this way - comparing cases with facts similar to yours:

• Supreme Court of Canada cases;
• appeal court cases in the same province;
• appeal court cases in other provinces;
• previous trial court cases decided in the same province;
• previous trial court cases decided in other provinces;

So, when you see cases that are decided in other provinces on your report, that’s because if your case was decided by a trial judge, that judge would be looking at cases from across the country - focusing on those cases with facts similar to yours.  By combining cases from across the country, we are able to provide a larger sample of cases to analyze and we believe that it provides more relevant results for you.  Practically speaking, when it comes to calculating severance packages, it’s often more useful to find and understand those cases with relevant facts that are as close to yours as possible regardless of where they were decided, rather than focusing on cases decided by courts within your Province.

In our last post, I talked about how courts will assess an appropriate notice.  This week, I want to address the variables that are most commonly used by courts when they assess a notice period.

For about the past half a century, courts have almost always looked at four major variables: your age, the length of service to your company, the kind of job that you held, and how long it would take you to find a job.

The most important variable is how long it would reasonably take you to find another job. However, it can be very difficult to prove with any reasonable certainty just how long that is.  It’s always a prospective exercise, forward-looking and we all know it’s impossible to predict the future.  Consequently, Canadians courts spend significant amount of time examining the three variables your age, length of service, and nature of your job when assessing notice periods.

More often than not, the older you are, you’ll be entitled to more notice, particularly for those workers reaching closer to retirement age.  You may be closer to retirement and therefore potentially less attractive to other employers.  While a common misconception, there may be a perception that you may be less able to change and adapt to new company systems or have an education set that is not appropriate for what they are looking for.

The courts will also consider how long you have been with your previous employer. The longer you’ve been with an employer, the longer notice you will tend to get. This is a result of many factors all of which makes some amount of common sense. The longer you are with an employer, the more you are ingrained in its processes, procedures and culture.  An employee may suffer from a perception that you are ingrained in that previous employer’s operations.

Finally, within a company, the more senior your position, the more notice you will tend to get.  There are fewer “Chief Executive” positions in Canada than there are front line service positions. Therefore, as the thought process goes, to find a similar job, that CEO will require more time to find a similar one.

FiredWithoutCause.com was recently featured in an article written about  in ITBusiness.ca.  In it, downtown Toronto lawyer, Howard Levitt questioned the accuracy of our calculator:

“Levitt questions the accuracy of the calculator. His book outlines 130 separate factors that affect severance pay, and this database compares about four or five variables.”

In our online Employment Law Handbook, we acknowledge that there are many factors that could affect severance pay.  You may have been dismissed for cause, dismissed with bad faith, and been affected by several other factors.  As a lawyer myself, I’ve used Mr. Levitt’s book (written for lawyers) from time to time when counselling clients - and he uses the same variables we use in his own paper-based list of cases.

The challenge we want to address here at FiredWithoutCause.com is how to provide good legal information to our customers in a way that is cost-effective.  To do that, we’ve taken the most common variables that appear in almost all cases to help you understand what courts have awarded in cases similar to yours and that have been definitively recognized by all courts across the country as being the most commonly relied upon variables.  All other variables are extremely case specific.

What we try to accomplish at FiredWithoutCause.com is to provide a means for ordinary Canadians who can’t afford downtown legal fees to empower them with information to help them know where they stand.  They may very well call on Mr. Levitt for advice….