Author: Daniel A. Lublin
Routine may be agreeable – but think twice before trading routine for the temptation of change.
A “lifer” of the auto sales industry, after working at a series of dealerships, fifty-seven year old Janet Deplance had finally found her home. For ten years, Deplance prospered as a business manager for Gemini Ford in Hamilton, Ontario, believing it would be her last stop until she retired.
While working in the industry, Deplanche befriended Christine Mcgillvray. The two grew close, staying in touch over the years. When a position later became vacant at McGillvray’s dealership, Leggat Pontiac Buick Cadillac Inc., McGillvray turned to Deplanche, seeking to convince her to leave Gemini and join her at Leggat.
Swapping employers wasn’t an easy sell for Deplanche. She was popular and secure at Gemini and personal problems had left her hesitant towards change. Despite knowing that Deplanche was content with her job, McGillvray continued to petition her to leave, enticing her with notions of working with a “dream team” at a job that offered a higher volume of sales.
In response to McGillvray’s entreaties, Deplance eventually agreed to meet with Leggat’s representatives. Terms were agreed to and soon Deplance bid farewell to Gemini to join her friend at Leggat.
After the honeymoon period, however, the relationship soured. Deplance was cautioned that her profit margins and paperwork were unsatisfactory and she was given a letter warning her that her performance needed to improve. Before two years passed, Deplance was fired.
Deplance had had enough. At fifty-seven and without a job or income for the first time in years, she moved to New Brunswick to look for a comparable job. Not before suing.
Typically, an employee of short tenure is only entitled to a limited period of warning or pay, known as severance, after being fired. However, where an employee has been induced or recruited away from a secure job, a court may attribute his or her prior tenure to the recruiting employer. In this case, Deplance argued that Legatt should be responsible for the 10 years she worked for Gemini and not her mere two years with Leggat. The court agreed: It was clear that Deplanche had little motive to leave her secure job at Gemini and that McGillvray’s entreaties went beyond the normal degree of persuasion expected when recruiting an employee. As a result, it awarded Deplance 8 months’ salary for wrongful dismissal – a judgment usually reserved for longer-term employees.
Both employees and employers can glean the following lessons from this case:
- Not every employee recruited away from another job can claim legal inducement. It must be eminently clear that the employee was not already looking to leave.
- After a period of time, usually 3 – 4 years, the practical effect of a claim for inducement loses its value. Employees terminated shortly after being recruited are viewed as more vulnerable.
- Employers can limit inducement claims with properly drafted employment contracts. I have increasingly seen clauses that prevent employees from making these claims.