Keep lawyer behind the scenes

Employer should not meet with worker’s counsel

Lawyers are constantly confronted with witnesses they have never met. Often, they are unaware of their existence until they suddenly appear at a hearing. These witnesses have been trained by opposing counsel to say certain things and not admit to others. It is the lawyer’s job, in a nutshell, to elicit a confession on the very matters they are determined to deny and to negate the evidence they are hell-bent on getting before the judge.

The l aw ultimately is a craft of strategy playing on psychology. Performing it successfully requires an understanding of what makes people tick, an intuitive ability to immediately size them up and an instinct as to how to elicit the reaction sought.

Those were my introductory remarks to the recent Employment Law Summit of Ontario’s Law Society of Upper Canada, a conference I chaired for its first 10 years. The subject of my session was when lawyers should remain behind the scene, ghost writing clients’ correspondence, and when they should go on record as acting for clients.

For employees who have sought out a labour lawyer, the first question they should consider is whether they wish to stay or go. Once an employer receives a lawyer’s letter, the employment relationship is over. Sometimes that is the point: The employee retains counsel for the very purpose of triggering a dismissal or a discussion about severance.

Employers should never negotiate with, or meet with, an employee’s counsel. Employees have an obligation to deal directly with their employers. They are not entitled to bring lawyers to meetings. In such circumstances, I recommend my clients refuse to attend. An employer has the right to demand the employee meet with it directly, without counsel, to discuss any workplace issue. If the employee refuses, that is generally, after a warning, cause for dismissal.

Unless the meeting is agreed to be “without prejudice,” attending such meetings could make the employee’s lawyer a witness and unable to act in any ensuing case. Which is also a reason why employers’ counsel should never attend meetings between a client and its employees. As well, a court would consider this action heavy-handed.

In a case involving Honda Canada Inc. between 2005 and 2008, the trial judge relied on Honda’s lawyer attending a meeting with its employee, Kevin Keays, as a factor in awarding Keays what was then the largest punitive damage award in Canadian employment law history. I am also told that, in turn, the attack by the trial judge on Honda’s counsel was a factor that motivated Honda to appeal the decision.

Employers should generally use lawyers to respond to employees’ demand letters because it sends a more resolute, less conciliatory, message, which is to the employee’s counsel as much as to the employee. If the employer appears an easy mark, their lawyer will more likely take the case on contingency, which provides the employee little incentive not to sue.

If the employee’s counsel is not requesting much more than you have offered, there is no issue of principle or precedent at stake, or you have a reason to quickly and quietly settle the case, you might wish to save on legal costs. By the same token, where the request is not much more than the employer’s offer and the employer declines the proposal, the employee will probably not sue anyway.

There are some employers that make offers they view to be reasonable and never negotiate more. Those companies tend to be sued less often because, even if an employee ends up with slightly more, it is often years later.

A client of mine, with that philosophy, conducted a mass downsizing in a division it had purchased and about 30 cases were whittled down to five or six that reached discovery. One reached trial and was awarded essentially what he had been offered initially.

That division was later purchased by another client of mine, which conducted its own layoff using an even less generous severance formula than the first client. Its human resources manager advised me, when the word spread that its lawyer was the same one, no one sued.