Equity offers Employment Law Litigation Support to lawyers who represent employers and employees in wrongful dismissal cases. Our outplacement services and a working relationship with our Career Transition Coaches can effectively become invaluable resources, integral to your litigation strategy.
Outplacement services often represent the trump card with substantial influence over outcomes in employment law cases. This was demonstrated in the case, Ahmad v. Procter & Gamble Inc. (C.A.), 1991 CanLII 7225 (ONCA). After Proctor & Gamble ended Mr. Ahmed’s employment, he sued them for wrongful dismissal. At the Court of Appeal, the judge recognized the tangible value of the outplacement services included in the severance package. Consequently, he ruled that the services represented “an active means of assisting the employee to secure alternative employment”. Satisfied that this employer had met the legal obligation to genuinely help their departing employee, the judge sanctioned the original offer and promptly dismissed the wrongful dismissal case.
Assessing Reasonable Notice
Employers dismissing employees without cause must offer reasonable notice or compensation in lieu. Employment lawyers generally utilize the “Bardal Factors” to calculate the value of the severance. Dating back to the 1960’s, they include age, length of service, character of employment and availability of similar employment.
However, the judge hearing the leading case of Di Tomaso v. Crown Metal Packaging Canada LP, 2011 (ONCA) 469 (CanLII) questioned this approach. Changing economies and automation deemed the Bardal Factors ineffective in some circumstances. They seemingly favoured senior employees and did not sufficiently represent the reality and stress of the job hunt by junior employees in a contemporary economy.
The Court therefore used a more holistic and progressive method to determine the employee’s actual chances of re-employment. The judge asked for an “expert opinion” from a qualified vocational counsellor, representing a significant shift in the assessment paradigm. Consequently, employment lawyers on both sides utilize expert opinions with increasing frequency by to support their cases.
Employment Law Litigation Support: Expert Opinion
Whether you act for employers or employees, our Career Transition Coaches possess the qualifications and experience to provide you with litigation-ready assessments.
Not every case requires one. However, when employers and employees stand far apart on the interpretation of “reasonable notice”, judges will rely on expert opinions before making their rulings. Equity’s litigation-ready job assessments offer an unbiased and independent professional opinion of the situation.
Litigation-Ready Job Assessments
First, an experienced career coach will meet with the candidate to assess his/her skill set, responsibilities and income at their former job. Our deep knowledge about virtually every industry provides us with insight on how well positioned this candidate is for their market segment.
We then note the obstacles the individual faces with securing new employment. They can include education or experience, as well as the vagaries of the job market. We also include all services and supports the candidate requires to be re-employed, such as retraining or coaching. Based on all these factors, which are specific to the individual, we offer realistic re-employment timelines.
With our employment law litigation support services, we offer lawyers tangible evidence to shore up your claims. For example, an employer’s counsel may want to demonstrate that age is not a factor when seeking employment in the Financial Management industry. Or an employee’s counsel may want to prove the opposite; that age is a severe impediment for finding a job in the IT sector, which gives preference to younger applicants.
Outplacement Services: The Mitigation Edge
Opposing counsel in employment cases do not agree on much. However, they do agree on one point. The best way to stop a wrongful dismissal action dead in its tracks is for the departing employee find employment elsewhere, and quickly.
Lawyers representing employers understand the very high burden of proof required to demonstrate mitigation failure. The most effective means for investigating the employee’s mitigation efforts is through the services of a career coach.
Advising your employer clients to include a modestly priced outplacement package for their departing employee offers you an advantage. At Equity, we keep detailed notes of the candidates’ job search status and efforts. It allows you to track the efforts in real time. If you concede the field, then the opposing counsel will shut down your ability to gain access to these facts.
When employers purchase these services as part of severance packages, Equity’s career coaches work with the candidate as non-adversarial partners, even while representing the employers’ interests. We obtain written consent to collect and organize information pertinent to their job search efforts.
And furthermore, we actively coach the candidate, providing them with all the support they need to enter the job market, polished and prepared to secure new employment as quickly as possible.
Employee’s Duty to Mitigate
The task of job hunting is a stressful one. Candidates must emotionally prepare for a journey that includes lots of rejections. Often, this plays havoc with their sense of self confidence and pride. This is particularly true when they are already dealing with the trauma of a job loss. Some individuals harbour immense anger because of it. Others feel horribly hurt and rejected.
Equity’s outplacement services often start with job loss counselling for those candidates we deem require it. We efficiently get the candidate to a place of closure with their job loss. It is an important stage that precedes their duty to mitigate the job loss.
In fact, without counselling, some candidates will take much longer to find employment. And this will not bode well for employers, especially when a wrongful dismissal case is being litigated. This is one more reason why lawyers should advise their employer clients to include outplacement services when negotiating severance packages.
Job Loss Counselling Services
Job loss counselling services are also used by plaintiffs’ lawyers. Their role is to aggressively advocate their client’s position by pushing the matter through the litigation process as efficiently as possible. Every so often, effective prosecution of the file gets bogged down by what most legal practitioners refer to as “hand holding“, i.e, managing the client’s emotional inability to cope with the consequences of their termination.
Many individuals enter this legal battle harbouring loss and deep resentment toward their former employer. These candidates are far from ready to cope with the vicissitudes of a litigation process that can be harsh, expensive, technical and time consuming.
Employment lawyers are rather ill-equipped to offer the level of professional counselling these clients require. And this is where Equity can step in with employment law litigation support.
We work in tandem with lawyers to provide clients with reassurance and support. We efficiently help them overcome the emotional hurdles to regain their confidence. This allows them to partake in the litigation process much more effectively. It also frees up the lawyers to focus on what they are hired to do – to take the case to a practical and legally-mandated resolution.
Heads of Damages
Our job loss counselling services, purchased by counsel or client, are fully reimbursable, tax free and legitimate Heads of Damages. This has been supported by many rulings, including Mahasurem v. Canac Kitchens Ltd. and other decisions that followed.
Under your umbrella of confidentiality, our employment law litigation support services represent a practical and reliable utility. We offer a full range of “non-legal” services to organize the client’s mitigation efforts.