National Post: January 19, 2010. All Rights Reserved.
The price of success is vigilance. That is one reason employers, properly instructed and cognizant of their opportunities, generally win employment law battles, most of which are waged well before the courtroom.
The secret to my success lies not as much in my skill as in mistakes made by my opponents. Often, I suggest a particular strategy in the hopes the other side will fall into a trap. My clients often don’t expect the other side to be that reckless. However, I have learned never to underestimate mankind’s proclivity for laziness, carelessness and mechanical, rather than considered, behaviour.
Here are some common errors made by employees:
Accepting reprimands with equanimity If an employer provides a warning, the employee is that much closer to dismissal for cause. If an employee accepts it passively, whatever he or she may claim, months later after being dismissed, the courts generally assume it was justified. When a reprimand is received, the employee should respond in writing, refuting the employer’s observations, or explaining the context and providing any rationale that might exist. Doing so could avoid dismissal or, if not, at least prevent the employer from later asserting cause for dismissal.
Not responding to all criticisms If an employee receives a negative performance review and rebuts only some of its criticisms, the employee has implicitly accepted the unrebutted ones, which might be sufficient to establish cause.
Failing to protest constructive dismissals If an employee has his salary reduced, is demoted or is otherwise constructively dismissed and does not either resign or immediately protest in writing, the court will conclude the change was accepted or condoned. Even repeated written protests may not prevent the court from finding that the change was accepted but it buys the employee time before deciding whether to accept the change or resign.
Lack of candour in investigations An employee had better co-operate in an investigation. But he or she is not entitled to be accompanied by a lawyer unless the employer agrees. Failure to participate or respond can be cause for discharge, as is lying. When setting up investigations of workplace misconduct, I design questions I believe the employee will refuse to answer. When that happens, we succeed in establishing cause, not solely on the misconduct that lead to the investigation but also because of dishonesty.
Negotiating employment contracts Employees believe they are improving their position, by negotiating revisions to the contracts employers proffer, sometimes with the assistance of counsel. They should not have bothered; often employers original contracts are unenforceable. But once revisions are accepted, employees can no longer assert they failed to understand the meaning, they lacked independent counsel, there was duress, there was an inequality of bargaining power or it was otherwise unenforceable.
This particularly applies to restrictive covenants. Too often, employers’ draft contracts that are too broad to enforce. By reducing restrictions from, say 100 kilometres from their place of work and two years, to 20 km and six months, they render an unenforceable contract, enforceable.
I am not suggesting employees forego having a lawyer review employment contracts, but they should understand they counter-propose at their peril.