Toronto Employment and Labour Law Blog: Wrongful Dismissal, Managing Client Expectations

Most wrongful dismissal clients arrive for advice at the office of the employment lawyer with unrealistic expectations relating to their entitlement to notice, severance or both. They are, in most cases, hurting from an event which has impacted their self-image, self-confidence, and both present and future earnings. They want to hit back and hit back hard. Often I counter by pointing out this is not about revenge or vengeance aimed at a former employer to whom the client had given "the best years of my life". 

The issue relates to a contract of employment written or verbal and reasonable compensation for its breach. What is reasonable based on years of service, age and the likelihood of the time it will take to find equivalent reemployment is a shifting calculation depending on the particular facts of the situation and the manner in which the termination was handled. Punishing the employer for its actions does not normally form part of the compensation ordered by the court. Caselaw has set out the parameters of one's legal entitlement on termination over many years in a variety of differing circumstances. The requirement that the employee make reasonable efforts to seek out reemployment and that if the employee makes no such effort it will jeopardize the proposed payout is not always easily understood or appreciated. 

"But I am entitled" goes the complaint. A sense of entitlement does not translate into appropriate compensation for the breach of contract. A sum certain in an employment contract makes the advice appear to be attached to reality, "this is what you agreed to on termination without cause". If there is no written contract and no fixed sum your advice to the client appears, at best, speculative. The legal education of the client can be painful for both the lawyer and plaintiff client. Moral, punitive, and mental distress damages are common add-ons.

More recently claims for "lack of good faith, harassment, discrimination and reputational damage" complicate any reasonable calculation of both contract and tort damages, matters not easily understood by the client. It is best to follow up any advice about likely financial recovery with a letter to the client confirming the advice. A hurting client too often has selective memory of certain promises that she believed formed part of the lawyer's advice following her wrongful dismissal. An Employment Lawyer's appreciation of the human dynamics that flow from a sudden, unwanted and unexpected departure, will help to make the otherwise bitter medicine of realistic potential recovery go down with fewer tears and resistance based on a potential client's notional sense of entitlement.

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