Last week, the Globe and Mail reported that “scores of unvaccinated workers are filing wrongful dismissal claims against employers”. I have represented employees and employers at various stages of wrongful dismissals, from settlements to trials, and I have been getting many inquiries from employers asking how they should respond to wrongful dismissal claims. Below are my top 3 frequently asked questions and answers.
Q1: I received a letter from a former employee’s lawyer asking me to pay money. What should I do next?
Check to see when you need to respond by. If you only have a few days left, respond to the lawyer and tell them you are in the process of finding a lawyer and need more time – almost 99% of all lawyers will likely say “yes”. It is always easier, quicker, and cheaper for both parties to settle than to go to Court. By telling the lawyer you are getting legal advice, you are telling them that you are taking this seriously and that you want things to resolve as quickly, easily, and cheaply as possible. However, settlements require both sides to compromise and that’s why you need to speak to a lawyer who will tell you both the strengths and the weaknesses of your case and how much it will take for you to take your ex-employee to court versus settling.
Q2: I fired my employee for just cause because they refused to comply with our vaccination policy. Do I have a case?
We cannot give you a firm “yes” or “no” to this question. The reason why is because the question of whether an employer has just cause for termination is highly fact-dependent. Just cause for termination involves a two-step process where the employer must establish that the employee committed some form of misconduct, and that form of misconduct was serious enough to damage the employment relationship beyond repair.
To date, there has been no court decision anywhere in Canada that has ruled on whether non-compliance of a COVID-19 vaccination policy amounts to just cause for termination. We believe that once these cases start to arrive in court, they will all be decided differently, simply because the just cause test will apply differently across different industries, job positions, and work arrangements.
That being said, while just cause is not easy to prove, it is far from being impossible to prove. With the right set of facts, we believe that there is a good chance an employer can prove just cause for terminating an employee for their refusal to comply with a vaccination policy.
Q3: How should I decide whether to settle or go to trial?
I always tell my employer clients that a “win” in a wrongful dismissal is for their business to find the cheapest and least disruptive way possible to make the wrongful dismissal claim go away. For every employer, what this means will be different. Some things that come into consideration are:
- How will my other employees whom I fired on similar grounds react if they learn that I settled?
- How will my existing employees react if they learn that I settled?
- How much time will I be taking away from making my business profitable if I decide to carry on with this lawsuit?
- What are my odds of getting a less expensive result in court rather than settling right now?
- If applicable, will pending lawsuits have any impact on my plans to sell the business?
These are challenging times and it is important for your business to make the right decisions and choices by consulting a lawyer on your next steps.
This blog is not intended to serve as legal advice, and only provides general information.
Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected]