Employment lawyers restricted to wrongful dismissal litigation
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Employment lawyers restricted to wrongful dismissal litigation
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"Work  is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

-- Chief Justice Dickson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 (Supreme Court of Canada),
at page 368.



Six out of ten people hate going to their jobs every day.  In this article, wrongfullydismissed.com lawyer Howard Markowitz advises miserable employees on:

Requesting your exit package from work.

Jobs are owned by the company, but you own your career.  That’s why miserable employees may consider pro-actively approaching their employer for an exit package incorporating fair termination pay, favourable reference letter, and mutual release preventing future claims from either side. 

Employees seek predictable departure from work.

 From the employee’s perspective, you’ve secured (a) short-term/financial bridge to your next job, (b) favourable reference letter often unavailable through formal litigation, (c) saved potential year-long proceedings to trial, (d) favourable RRSP and other tax allocation no trial judge would compel, (e) no costly/public litigation proceedings with which to contend, and (f) maximum control over timing, publication, and characterization of your departure as one without cause.

Companies save legal expense and collateral damage.

 From the company’s end, employers benefit from (a) significant legal defence fees saved, (b) embarrassing/public proceedings in court, (c) fixed/financial certainty, (d) confidentiality clause preventing departing employee from badmouthing the company, (e) departing employee less disgruntled and therefore less likely to badmouth/sabotage/disclose confidential company operations, (f) heads-up/advance notice to arrange for hire/training of replacement staff, (g) no adverse court precedent encouraging and to be relied upon by future departing employees, (h) no 11th-hour progressive discipline/paper-trail fabrication to defend termination in court, and (i) one less under-performing employee to maintain on payroll for simple fear of wrongful dismissal lawsuit if otherwise fired.

Employees fear retaliation.

Unfortunately, such win-win scenarios take place all too infrequently on account of employees afraid their exit package request will be refused or otherwise distorted into some form of voluntary resignation in which case even basic rights to minimal Employment Standards Act pay and Employment Insurance benefits are off the table.

Companies fear constructive dismissal litigation.

Even more afraid of discussing voluntary/exit package is your employer in light of recent U.K. decisions like Billington v. Michael Hunter & Sons Limited, [2003] All E.R. (D) 83 [E.A.T.} where England’s Employment Appeal Tribunal held that extending such voluntary exit package can itself constitute veiled threat of termination tantamount to constructive dismissal/harassment and corresponding damages as a result.  According to Pepper v. Saskatoon Region Community College, [1982] S.J. No. 437 (Saskatchewan Queen’s Bench), “[a] demanded resignation may be looked upon as a dismissal.”

Best way to predict the future is to create it.

And so given natural reluctance of both parties broaching the idea of voluntary/exit package, not to mention risk-averse lawyers frankly/standing to profit from impending/all-out formal litigation, pro-active employees will:

(1)        feel-out their employer by requesting “without prejudice”/off-record discussion about their continued employment;

(2)        provide employee written note confirming parties’ agreement to “without prejudice”/off-record discussions to take place, thereby putting employer at ease that frank comments won’t come back to haunt your employer in any Statement of Claim, affidavit, or judgment down the road;

(3)        expand the negotiating pie through (a) focus on parties’ win-win/mutual interests in amicable exit package, (b) long-term goals like favourable reference letter more important than grudge-match over less life-changing/insignificant vacation pay arrears from years past, (c) keeping your cool demonstrating how well you’d handle yourself under pressure should matters not resolve, and (d) know your legal/fall-back leverage to any/all demands not reasonably met by your employer in time respecting rare opportunity for frank/off-record discussion – not to mention tens of thousands saved in corporate legal expense, adverse court precedent, under-productive work force, financial/litigation uncertainty, and further devastated workplace morale had you sued and won.

  Every exit is an entrance somewhere else.

 And so while the only people who like change are wet babies, we hope this article will inspire the more miserable among you into negotiating creative/win-win exit packages to the mutual benefit of everyone but your litigation attorney.


 About Howard Markowitz

Wrongfully-dismissed at age-18 from one of Canada's largest retail clothing chains, Toronto lawyer Howard Markowitz vividly recalls his anger fuelled by employer's unlawful attempt to withhold fair severance compensation. 

And while time heals most wounds, Markowitz re-directs his outrage for employment injustice into one of Toronto’s most aggressive wrongful dismissal litigation practices – wrongfullydismissed.com – Howard featured in publications ranging from the Toronto Star to Canadian Lawyer magazine, teaching the Law Society of Upper Canada’s Bar Admissions course in negotiation strategy, client list including agents of Human Resources Development Canada, and attorneys logging more than 250+ career appearances on Canadian radio empowering the wrongfully-dismissed with streetwise litigation strategy for maximum fair severance package compensation.


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