Beware rejecting a reasonable offer

A better one may not be around the corner

Sometimes you have to know when to say yes. Too often I see employees or employers presented with good offers but reject them, believing that a better one is around the corner.

They do not understand that the most propitious circumstances for positive settlement might already be at hand and delay will worsen their negotiating power.

This came to mind in a recent case. In the wake of the #Metoo era, an employee of a client made a claim of long-standing sexual harassment against a prominent executive. An investigation occurred. The executive responded that there was merely sexualized mutual banter but wrote an apology anyway, saying that, if he had misunderstood the nature of their relationship, he was profoundly sorry. She refused to participate in the investigation of her own complaints of harassment but acknowledged that she was the object of no further sexualized comments.

This employee asked to receive severance and leave the workplace. To avoid formal proceedings, she was offered $100,000. She turned it down, presumably believing that it was merely her employer’s opening position.

Heady with what I suspect she viewed as the company’s capitulation, this employee then began to misconduct herself, to such an extent that two harassment complaints were then lodged against her by other co-workers. She began taking time off on a stress leave, which a defence medical examination concluded was unsubstantiated. Ultimately, she was terminated for cause for abandonment. She then filed both a grievance with her union and a complaint to the Alberta Human Rights Commission.

She lost her discharge Sometimes the first offer an employee receives in a dispute with his or her employer could be the only offer, as columnist Howard Levitt points out.

case with the union; her record made it difficult for her to find alternate employment and the Human Rights case went nowhere quickly. She appealed her various losing decisions, which led to court judgments against her, including costs.

Needless to say, her nowprevious employer, which had reacted sympathetically to her original allegations, had long withdrawn any settlement offer and the prospect of the Human Rights Commission awarding her anything is, at best, bleak. Since the arbitration board found that she was properly terminated, the HRC is legally bound by that.

Since her dismissal is off the table, her only possible remedy before the HRC is

minimal. There are also many procedural issues before the Human Rights Commission and any remedy, which appears to be unlikely, would, with appeals, be very long in coming. With published decisions against her, now working in a new field, no prospect of a settlement offer and little prospect of a successful Human Rights Commission finding, she surely wishes that she had accepted that original offer.

Of course, that offer was made before she antagonized so many of her former co-workers and the employer. I do not know what her lawyer advised her regarding the initial offer and do not know whether she or her lawyer is to blame. I do know that, if, instead of rejecting

it, she had counter-offered for a slightly larger amount, the case would have been settled a very long time ago and she would not be in her present predicament. Lawyers and clients must realistically review cases at every stage when an offer is made and determine the potential impact of continuing to fight.

What is apparent to me is that, when faced with that early offer, she misdiagnosed her employer’s preparedness to pay and how her conduct could jeopardize her employment. Like many claimants, she became heady from the initial offer and responded accordingly. In not returning to work as result of alleged stress, she also miscalculated the risk of being fired for cause and what impact that would have on the company’s preparedness to settle.

Another aspect of this case is employees’ belief, when they have a conflict with their employer, that they can absent themselves on “stress leave.” Stress is not a disabling condition unless it reaches a psychological disability rendering one unable to work and without the ability to work in a modified or accommodated capacity. If an employee is not rendered disabled, they must return to work and, if the company arranges a defence medical that establishes the employee is capable of returning, the employee is at risk of being fired for cause if they do not do so.

And another aspect of this tale is that workplace misconduct that renders the employer unsympathetic invariably makes the employer less prepared to offer money.

Put yourself in your employer’s place. Whatever their actual legal obligation is, they have great discretion as to whether to be generous and how quickly they wish to resolve the situation.

As result of a bad choice, this employee went from a $100,000 initial offer to years of hardship with likely no compensation whatsoever.

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