December 3rd, 2009
Many employees don’t know that they have what is called a duty to mitigate. That is, if you lose your job you are under legal obligation to do everything you can reasonably do to find another one.
When employees sue for wrongful dismissal, an employer’s first defense is often to claim that the employee has failed to mitigate his or her damages.
This means the court will require you to demonstrate that you’ve tried to find a job.
You can do this by showing that you’ve been: checking the newspaper and the classified adverts, doing any necessary networking, or submitting your resume to different potential employers. There’s any number of different ways that you can demonstrate this, but you have to show that you’ve made every reasonable attempt to find a job.
The key word is reasonable.
If you have an illness, or some other concern that makes it impossible to look for another job, you must show that this concern has prevented you from finding a job, and that as soon as this concern has been addressed you will continue looking for a job.
But what if employment conditions are poor and there are simply no jobs available?
The extent to which an employer can argue that you should be looking for a job that requires a lesser skill set is questionable. How reasonable is it for you to accept a lower paying position, or a less prestigious position with fewer duties?
The courts will generally require that you accept another job within reason, which may include slightly less pay or slightly less responsibility. You won’t, however, be required to find something that is dramatically below the level of what you’ve been doing.
It won’t, for instance, be expected that a chief executive officer (CEO) would take a frontline service position at the customer line. However, this person would still need to demonstrate that he or she was willing to take something other than a CEO position, like a middle management position, depending on the kinds of companies that have been solicited.
Tags: wrongful dismissal duty to mitigate mitigation severance package
Posted in Employment Law | No Comments »
November 18th, 2009
The first thing you do after you lose your job (whether you call it fired, terminated, axed, or whatever) are extremely important and can dictate whether you receive a good settlement from your employer without too much trouble.
The first hour after you’ve been terminated is incredibly stressful, even, perhaps, one of the most devastating times in a person’s life. A whole host of emotions run through you, everything from anger to resentment, from depression to disillusionment, and from rejection to a new uncertainty about your life.
It is really important not to make any rash decisions.
Often, what many employers will do is to provide ’spot offers’ upon termination. That is, they’ll have you sign a piece of paper promising you a package of money. What you are often doing, though, is waiving your right to ask for future money.
It’s also not unusual for an employer to not offer any package at all, expecting that the employee will simply not understand his or her legal entitlement to notice.
So, in that first hour after you’ve been terminated or told that you’ll be terminated from your job, it’s important not to react. Simply ask whether there is any severance offer on the table, how much notice will be given and how the process of termination will occur.
Don’t say anything, don’t respond, and most importantly, don’t offer anything else. Take the information that your employer is giving you, and ask for some time to consider your options.
Then, that evening, consider your options, think about what you want and come up with your counter offer (you may want to read our Seven Steps to Improving Negotiations paper to understand the difference between what you need, what you’re entitled to and what you want). If your employer has given you a settlement package you may want to consider that. You’ll also want to take the time to call a lawyer, your financial advisor, or your tax advisor to understand what your various options are, and to assess your package. Then you’ll be prepared to go back to your employer the next day with a fair counter proposal.
By keeping calm and not reacting, you will avoid signing any documents or entering into any agreement that you’ll regret, an agreement which may involve waving the legal rights that you have by common law.
Tags: counter-offer, dismissed, laid off, negotiation
Posted in Employment Law | No Comments »
November 16th, 2009
Hi everyone, apologies for not being in more regular touch with all of you. For what it’s worth, my wife and I just had our first baby and I took some time off from my outreach activities to enjoy these first few days. Thanks to my business partner, Jim Hamlin, for keeping our business going.
While we’ve been a bit silent, we’ve been busy. I thought I would update you on some of the improvements that we have been working on:
- re-working our customer experience and intend to roll out a new user interface and workflow very shortly. Thanks to everyone for your great feedback on how to improve our service.
- working on a major upgrade to our database. After our upgrade, we will have more indexed, publicly accessible cases than any of our competitors. We are working on providing full-text cases for most, if not all, of our indexed cases. This upgrade is a major effort for us as we comb through decades of case research. After our upgrade though, we can provide summary results that are more comprehensive, accurate, and relevant.
- making it easier for repeat customers to access information in their accounts.
In related products, our company Paradigm Shift Solutions is working on two other products to bring “law to the people” and we’re pretty excited about that too. Keep checking for more information.
Meanwhile, check out our new temporary home page and media page where we have listed all of the fantastic media coverage we have received over the past three since our opening. I am especially proud to say that the Canadian Bar Association’s magazine recently covered us in their October/November issue as a “sign of the future” in the legal profession. As a lawyer myself, it’s nice to know that we are doing something to improve access to justice for Canadians: http://www.cba.org/CBA/PracticeLink/leadership_technology/online_services.aspx.
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October 7th, 2009
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.
Posted in Employment Law | No Comments »
October 2nd, 2009
I want to address two topics today:
- what happens when you are terminated while on leave; and,
- why don’t we provide more case specific information.
We were asked recently to consider a situation that made me think of post. It wouldn’t be right of me to get into details that I think were sent to me in confidence. However, let’s just say that an employee seemed to me to have been treated poorly, but the customer was asking why we don’t provide cases organized by specific situations, such as termination while pregnant, or termination while on disability leave, or other such circumstances.
I thought I could share my response with everyone, which I edited to leave out confidential information:
______
There are an unlimited number of potential categories that one could define. It would not be possible to design a solution that could anticipate all potential unique facts that employees may encounter and so lawyers, and our service, focus on the key variables of age, length of service, type of job. Our service attempts to balance two needs: 1) to provide reasonably useful information to our customers about their notice entitlements; and 2) to do so at an affordable cost our customers. To get very specific and tailored information that you seek, you would need to consult a lawyer, but then pay their fees – significantly higher than ours. Most of our customers use our service to determine whether what their employers offered is “in the ballpark” so that they can make a more informed decision about whether to engage a lawyer – to know whether to start spending money on legal fees is worth it. This is not to say that we discourage customers from contacting lawyers. Quite the opposite. As our tutorial states, we encourage our potential customers to consult a lawyer if they wish information that is precisely specific to their situation.
Generally speaking, that a mother is on … leave … does not generally, in itself, increase or decrease the specific applicable notice period. However, terminating a person in this way increases the risk that an employer has engaged in “bad faith” conduct which could increase the damages to which an employee would be entitled. We refer to these “bad faith” damages situation in our tutorial….which our service does not cover.
If you wish to obtain cases involving wrongful dismissal of people … dismissed while [on leave] then I would encourage you to go to the Canadian Case database, where we draw our cases from, which is a database created by a consortium of law all courthouses in Canada, and enter in these search terms in the search box. You can then review all of the cases that match that search query: www.canlii.org. Hopefully, our service, combined with a scan of cases in canlii will get you closer to what you need.
________________________
Maybe some of you will also find www.CANLII.org useful. Many of our customers often use them in tandem. Using us as a starting point, finding the right cases on CANLII (Canada’s case database maintained by the courts) and then delving deeper on their own. Many of them find that we provide a great starting point since a query search on CANLII typically produces results like Google searches, a LOT of junk that you have to sift through - a very time consuming exericse that we’ve already undertaken.
Tags: Add new tag, disability, dismissed, laid off, leave, pregnancy
Posted in Employment Law | No Comments »
August 31st, 2009
Big thanks to Ms. Connie Crosby, a blogger at www.slaw.ca (her communications practice website) for her great article on FiredWithoutCause.com and the future of the legal industry.
The interview discusses some of the technology and social changes that are shaping the legal industry. The web is dramatically changing the way people treat knowledge, and legal knowledge is no exception. Lawyers must wrestle with this fundamental question: how can legal organizations operate in a world where data and opinions are free on the web? In that world, what economic value do lawyers generate that customers are prepared to pay for? Technological, social, and demographic forces are changing the value that interpreters of law bring to society and the profession hasn’t really kept up. We still operate with the same theories that may have applied 200 years ago, but no longer. This interview touches on some of those ideas. Would love to know what you think.
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August 31st, 2009
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.
Posted in Employment Law | No Comments »
August 11th, 2009
Some of our customers have asked us to provide them with edited reports that show only cases that have hyperlinks to cases that courts have published online. I’d like to explain briefly present the court results in the way that we have.
We have stated on our website that courts across Canada have not uniformly published the results of court cases online. In most older cases (the age of which varies across the country), cases are published in paper-based volumes that you can find in most Canadian law libraries or by using commercial services, most often purchased by lawyers. The list of cases we provide would enable you to look up the cases at a law library if you gave the librarian the case reference listed on the report. As our website states, we guarantee the accuracy of the substantive information shown on our report, especially the age, length of service, and notice period. However, we also state that we cannot provide links to all cases since some of our cases refer to a paper-based copy of a case, not a case available on the web. As courts upload older cases to the web, we will endeavour to link those cases to our database for our customers.
If we provided our customers with a list of cases that only had linked cases, such a list would be less accurate than the ones we currently produce. Our calculator identifies those cases with the closest match to your circumstances. If we were to generate a list that showed ONLY those cases with links, then that would widen the sample size of cases that would be analyzed, thus creating a sample with a greater difference between the minimum and maximum value. This would diminish the usefulness of our analysis.
For us to include cases published in traditional paper format, we would only have two options: (1) subscribe to those services at a cost that would make our service prohibited to the average Canadian; or, (2) copy those cases in violation of Canadian copyright laws.
As Canadian courts post more of their cases online and we update our database with the latest cases, our customers can expect more and more of their cases to be linked to an online version.
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August 8th, 2009
The latest statistics Canada data suggests that Canadian youth and young workers have been hit particularly hard by this recession. From the perspective of wrongful dismissal, young workers are governed by the same rules as those that govern olders workers. Younger workers are entitled to reasonable notice if their employer terminates their job. However, the notice to which they are entitled will tend to be shorter, often…much shorter.
Consider, your average 20 year old fresh out of high school: they are young (and courts tend to give younger workers a shorter entitlement to notice as they are perceved to have more opportunity to find suitable employment). Second, in most cases, they will not have worked for the same employer for more than a number of years, thus reducing the expectation of notice and entitlement. Third, they will often occupy more junior or front line roles; in those circumstances, a court will find that there are more opportunities to find a suitable role. All of these factors will tend to militate in favour of a shorter notice period.
That said, younger workers may want to think carefully before responding to a dismissal by asking for a longer notice period, even if they are entitled to more. Younger workers may find that a very good reference letter from their former employer is worth more than a few extra days or weeks of notice, particularly as they work to develop a reputation in the labour force. Certainly, younger workers should ensure that they receive at least the statutory minimums to which they are entitled under various employment standards statutes. If they think they were treated unfairly, they should consult a service like FiredWithoutCause.com, get a sense of what they should get, but then make a careful decision about whether a response is good for their long term career.
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July 28th, 2009
We ask the online community for advice about our offering. As you know, we here at FWC are pretty rigorous about protecting our customers’ privacy. We believe that at a time when people feel vulnerable enough, the last thing they want to worry about is their privacy online. So, we don’t require people to enter information like monthly salary or any information that would link them to an employer.
Several of our customers have suggested that we should include a function in our service where we are able to calculate a potential severance package based on dollar amounts rather than according to the length of service. This is easy enough for us to do. However, to incorporate this function, we would need to ask for salary information, information which we had originally thought people would not want to share with us. We wanted to reassure customers up front that we would protect their privacy. One of the ways that we do that is by not even asking for or requiring that information.
It’s easy enough for us not to make this function mandatory. We can design our system so that this information is not mandatory. If the customer does not provide us with that information, then we can design the system so that it bypasses that function.
However, the issue that we are wrestling with is this: will we turn off customers by even asking for that information, even if we tell people upfront that the information is not mandatory and disclose how we will use that information? The last thing we want to do is scare off customers before they complete the buying process, especially if the core information we provide does not require us to know monthly salary information.
Posted in Company Announcements | 2 Comments »
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