My colleague Jason Wong recently spent 2 1/2 days in court in behalf of a plaintiff employee who had been wrongfully dismissed. Because the employee was young and capable, he mitigated fully within 2 months of termination. At issue was 8,000 in notice pay, a claim for 17,000 for bad faith and the costs. Even though service was just over one year, since the employee was a team manager, he was claiming at least two months of pay. But no settlement occurred.
Instead, the decision reports 14 pages of evidence about various contentious issues at work which the employer tried to portray as grounds for cause. There had been no formal discipline, ever. The employee had been promoted. Even the facts related to the alleged culminating incident were obscure. The judge could find no foundation for cause.
What the decision reveals for all the public to read is the allegation that the employer had asked the employee to lie to federal auditors. Several witnesses were called to illuminate the activities of the Company attempting to obtain federal grants. There was evidence that certain employees back dated documents and made things up. The plaintiff refused to do anything inappropriate. He alleged that the underlying reason for his dismissal was his refusal to respond like others.
Now, the judge did not find there was a reprisal. But the evidence is on the public record. It is not good publicity. You have to wonder why an employer would risk its reputation for 7 weeks of pay. In fact, the owner of the Company represented himself. You have to think that if he had retained capable counsel he would have known he had no case. He would have received objective advice that his reputation was worth more than $8,000. He would have been encouraged to settle and avoid paying the plaintiff’s legal bill.
So, lesson to be learned for employers. Shake your head if you think you should be your own counsel in a wrongful dismissal. Shake your head if you think you are saving money by not hiring a good lawyer. The costs involved in losing an employment case are not just up front. The negative message to other employees and customers has potential cost consequences. The failure to demonstrate an understanding of how discipline works can lead to unionization because the remaining employees may feel at risk.
Jason did his job for a tough-minded employee who wanted to be properly treated. However, the smart employer would never have let the case go to court. When you read the decision you will conclude refusing to settle was not worth the risk. Vasiljevic v Rave Inc.