Termination trauma rarely changes law

Some people get to leave their employment with a handshake and well wishes. Perhaps they have retired or moved onto a different opportunity. Many do not get this luxury.

Some have been harassed or bullied out of the workplace. If they are counting on bringing a constructive dismissal suit, they should make sure they consult an employment lawyer before cleaning out their desk.

Some have had radical and sudden changes made to the fundamental terms of their employment and likewise may have a constructive dismissal claim.

Many others were happily working at their desk one day when they were called into a meeting with HR and summarily terminated without explanation or with some vague reference to corporate cutbacks. Others, after years of appreciated service, recently got a new boss who has decided to prove themselves. Still others have checked out of their jobs and probably saw the axe coming. Regardless of the reason for the termination, trauma follows. The employer they counted on to keep themselves and their families secure has let them down. It feels like a profound and personal betrayal. Anxiety, sleeplessness and depression often follow. Familial relationships become strained and precarious.

By the time the employee speaks to an employment lawyer, they feel like they are caught in the rapids.

It has been said that you don’t go to a lawyer for justice, you go to a lawyer for the law. Sometimes they are the same thing. Sometimes, they are not.

Assuming the employee has not already signed a contract that limits their entitlement on termination, the primary factors determining an employee’s entitlement to pay in lieu of notice are their age, level of responsibility and seniority. A good lawyer is upfront and clear about that centuries-old reality. Except in the rarest of circumstances when the employer’s treatment has risen to an almost documented level of abuse, the employee’s reaction to the termination of their relationship is not one of the judge’s considerations. That only happens on television.

A good employment lawyer responsibly manages expectations and makes it clear from the start what the law can and cannot do. Without that reality check, terminated employees are lulled into believing their outrage matters. A responsible lawyer balances their empathy with a reality check. Failing to do so can lead to unrealistic expectations, unnecessarily extended negotiations and expensive and fruitless litigation.

There are some cases where bad faith/aggravated/punitive damages are awarded. Employers who were clearly harassing the employee to try to get them to quit have been dinged. More so if the employee can document medical care having been obtained to treat the resulting trauma.

Employers who make frivolous and almost malicious allegations of just cause and try to deny the employee any pay in lieu of notice have also been punished for their behaviour. Treating an employee abusively or violating their human rights leading up to or during the termination process will also attract damages.

These exceptions, however, although often alleged and truly felt by employees, can be very difficult to prove and the reported successful cases are rare. Ninety-nine per cent of the time, it is age, seniority and position that dictate the outcome.

In most cases, anger and trauma fade. Life moves on. The lawyer’s job is to put as much money in your family’s bank account as soon as possible without recklessly depleting it or the employee’s emotional well-being. At the end of the day, for the employee, the best revenge is to live well.

This article was originally published by The Hamilton Spectator.