Terminated employees are hurting. Their job loss has been catastrophic to their self-esteem, their finances, their anticipated future. In their eyes, they have suffered extraordinary damage. Many plaintiff employees do not comprehend the legal limitation of a claim for damages based, as it is, on a breach of contract. The concept of compensatory damages and the requirements of mitigation must be carefully explained to the dismissed former employee. You are only entitled to what you have actually lost over a reasonable period of time, the time it would likely take someone in the ex-employee's position to find a reasonably equivalent position. Further, the terminated employee must make reasonable efforts to find a replacement position. Even the most comprehensive explanation may fall on deaf ears.
Recently a well-informed client insisted that he was entitled to 20 years salary and benefits on a claim for constructive dismissal. He is 33 years of age and employed for 8 years. When I attempted to educate him on the basic concepts of employment and contract law he exhibited clear signs of selective hearing. Trying to bring such expectations back to reality is a challenge for any competent employment lawyer.
The concept of mitigation, the need to make reasonable efforts to seek out reemployment or face the loss of damages, is not easily understood by a terminated employee who feels "entitled".
Plaintiff demands must be limited by recent case law that places the upper limit of recovery at 24 months. When a client demands "no less than 36 months" her lawyer is compelled to advise her client in writing of the reasonable likelihood of recovery.
In some cases, the lawyer’s successful recovery will disappoint his client unless the client has agreed in advance, best in writing, what constitutes a successful result. In rare cases, if a former employee’s expectations are clearly not achievable, it may be best to suggest other counsel.
Brian A. Grosman, Q.C., has spent the last 30 years advising corporate employers and executive employees on their obligations and rights. His book Fire Power (Penguin) is a best seller and he has written a number of other books, including The Executive Firing Line and Pink Slip Chronicles. Brian is a former Professor of Law at McGill University, and The University of Saskatchewan, where he chaired the Law Reform Commission of that province. Brian has been selected by his peers to be included in the National Post’s “Best Lawyers In Canada” for the last six years. He and his wife Tobi live in Stirling, Ontario, with their two Labrador Retrievers.
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