Author: Daniel A. Lublin
Most Employees have skeletons in their closets
Employees are often the authors of their own misfortunes at work. Few take advantage of laws that are construed in their favour. Fewer will challenge their employer’s decisions, however unjust. Most will just complain. But – if you have an inclination to fight back, here are some do’s and don’ts:
Condonation: If you disagree with an employer’s decision, such as not receiving a salary increase or promotion, you must immediately protest it and do so in writing. Failing to respond simply conveys to your employer that you agreed with its decision or at least that you did not care enough to complain. Otherwise, don’t try to argue the bonus you say you were promised must now be paid.
Similarly, many good cases of harassment or constructive dismissal die on the vine because of a delay in mounting an appropriate response. If you want a court to believe that your job was rendered so intolerable that you had no option but to leave, then you should swiftly do just that.
Skeletons: Just about every employee has a skeleton in their closet. If yours is so bad you can’t risk it being exposed, then do not challenge your employer’s decision to dismiss you, however unfair. Some workplace skeletons, although not harmful to your case, will ultimately be harmful to your reputation.
Investigations: If you are being accused of some form of misconduct, do nothing further that suggests you are being untruthful. Often, the initial allegation will quietly go away but by trying to cover-up even a small transgression you will give the employer the very cause to fire you it was so desperately seeking. In one recent British Columbia case, the court found the employee would have been entitled to damages but for his dishonesty during an investigation into his alleged misconduct.
Contracts: Do not take the position that your contract applies in some circumstances but should be thrown out in others. Employees get caught when taking advantage of contractual promises, such as a golden parachute, but then breaching that same contract’s limitations on working for a competitor or speaking with their clients following departure. Many lawsuits turn sideways when the conduct you complain of is similar to what you have done.
Allegations of bad faith: Few employees can afford to wait years to settle a case. Many of these cases would have settled quickly but for trumped up allegations of bad faith or mistreatment. When you name names in a lawsuit, you motivate your employer to vigorously defend it. In my experience, too many employee-side lawyers mistakenly aggrandize claims and then regret it later on.
Pick your battles prudently: In one recent case, the employee lost because he challenged his employer’s efforts to restructure, although it was done to limit lost inventory. Do not expect your employer’s sympathy when you challenge good faith decisions to cut costs.