‘War stories’ offer lessons
Iam often reminded by Iain Grant, co-host on my show on NewsTalk 1010, that listeners want to hear my “war stories.” So I have pulled a few cases from my legal briefcase that I dealt with in the past week and have some valuable lessons:
False representation One of my clients made a severance offer of five months to a manager in B.C., who then requested an additional two months, arguing this would compensate for a foregone bonus she had negotiated to leave her former employer, who she said offered a bonus. My client was to pay that bonus at the end of her first year, a yardmark she never made.
The employer sent a counteroffer for what was supposed to be four more weeks but mistakenly wrote four months in its offer letter, which she quickly accepted. When the company realized its error and attempted to rescind its offer, the employee moved for summary judgment (i.e., a remedy for a quick judgment of the court when there are no real issues in dispute.)
In a summary judgment motion, both sides are cross-examined. The resumé seemed written too conveniently and I suspected this employee had been fired from other positions. During my investigation and cross- examination, I learned she was dismissed from her previous job and would have signed a release against any bonus claim when she joined my client’s company. In other words, she lied to my client from the start.
But for her argument regarding the lost bonus, my client would not have offered additional severance. On that basis alone, we should win the summary judgment motion. But more significantly, lying to negotiate the bonus is cause for discharge and I am amending my statement of defence to add a counterclaim, suing for the reimbursement of all severance received, including the original five months.
If any employee is hired based on a false representation, and the employer later learns of it, even following dismissal, it can be relied upon as cause for discharge regardless of the original reason. Refusing modified work Another client in Ontario fired an employee after she refused modified accommodated work at half her salary based on restrictions provided by WSIB as a result of her disability. She turned down the offer and grieved through her union, claiming because the job was non-union and outside her bargaining unit, she did not have to accept it.
My client’s position was that there was no job in the bargaining unit that matched her disabilities and, in those circumstances, its duty to accommodate extended outside the union. Little medical information was available at the time of the offer of modified work.
However in the arbitration process, we obtained the medical reports, notes and records of her treating practitioner for the two years since her dismiss- al until the date of the arbitration. We learned she had not worked since her dismissal and she had a history of various health conditions that my client was unaware of at the time.
We are now arguing that her contract of employment was frustrated at the time of her dismissal, creating new cause for dismissal. The employee would have been much better off simply accepting the position offered rather than grieving at the union’s advice. Not a case of human rights In another case, a recently hired executive at an Alberta manufacturing company was suspiciously desultory, to the point the recruitment agency used to hire him was contacted only four months into his tenure.
One day, his wife phoned claiming he was in the hospital for an unspecified ailment. The next day she reported he was in jail. The local hospital had no record of him being there. Concerned his work was not being attended to and might not be for some time, the senior vicepresident he reported to went through his desk and emails and discovered he was in litigation with two previous employers, despite claiming he had voluntarily resigned from both, and that he had been using his position to obtain free personal favours. He was immediately fired for cause.
He went to the Human Rights Commission, claiming he was discriminated against because of his “disability.” A dismissal case would have resulted in a quick and expensive loss for him. But proceeding to human rights is free and pressure is placed on companies to settle — not a course I will advise for my client.