Sometimes even lawyers need counsel

Sep 30, 2012

Date: 2008
Author: Daniel A. Lublin
Publication: Metro

Treat dismissals with caution

I love the tales from the workplace trenches.  Those that I select to report are chosen based on a combination of their merit, law, skill – and sometimes error.
Hired as an associate lawyer by the law office of Leonard Levencrown, for two years Sharon Johnston and her boss enjoyed a “father/daughter” relationship.  Like most small law firms, the pair were close-knit and Johnston, the associate, depended on her boss for work.  When financial troubles struck this office, it would have been no surprise that Johnston was dismissed for lack of work.
Shortly after her dismissal, however, their relationship changed for the worst.  Incorrectly believing that Johnston filed a complaint against him at the Ministry of Labour, Levencrown struck back, attempting to affect her reputation.  Johnston responded by suing for wrongful dismissal.
Throughout the lawsuit and up until trial, Levencrown first argued that he fired Johnston because of her performance and then at trial he then oddly said that she resigned.  But the evidence disagreed with him: Levencrown had initially helped Johnston look for another job, he had told another lawyer that he dismissed her because he didn’t have enough work for her and he had provided documents indicating that she had been fired for that same reason.
Not amused with Levencrown’s hardball tactics, an Ontario judge recently found that his evidence simply wasn’t credible and that Johnston’s version of the events should be preferred instead.  Johnston was awarded two months’ salary for wrongful dismissal and her legal costs.
Courts can scrutinize an employer’s actions and conduct at the time of dismissal.  If unreasonable behaviour is viewed as extending an employee’s period of unemployment, the court can award additional damages to compensate for the harm.  Although the court curiously declined to award Johnston additional damages, it cautioned like-minded employers that similar behaviour could lead to such a finding.
When it comes to workplace law, sometimes even lawyers need counsel.  Employers should consider the following advice for handling dismissals:

  • Raise performance issues or other allegations only if there is overwhelming evidence to support the argument being made.
  • Zealously follow workplace policies the organization has in place.  If none exist, create them.
  • Provide a letter of dismissal, outlining the company’s position and any offer of severance being made.
  • Provide helpful letters of reference, instead of the simple name, rank and file letters currently in favour.
  • Consider offering outplacement counselling, especially for older employees.

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