In a typical wrongful dismissal case, the initial step is to attempt negotiations to obtain a fair and reasonable financial severance package with the employer with the help of an experienced employment lawyer.
Severance Package Negotiations in Wrongful Dismissal Cases
What is a Severance Package? When an employee’s job is terminated “without cause,” they are given a severance package that consists of a termination letter formally notifying the employee that their job has been terminated, as well as a severance offer (financial payment) and a legal release for the employee to consider and sign. It is always important for employees to review a severance package with an experienced employment lawyer.
The aim of an employment lawyer will be to use their experience to negotiate a fair settlement that properly compensates the employee in the severance package, based on the rules of Ontario employment law, relevant facts about the employee’s age, years of service, history of employment with the employer, and many other legal factors.
Because the outcome of court litigation can be costly, unpredictable, risky and emotionally stressful, there is significant benefit to settling a dispute early by achieving an appropriate settlement with the employer. However, in some cases, an employer may not be willing to settle. In those cases, it may be necessary to proceed to litigation (e.g., a wrongful dismissal claim) in order to enforce an employee’s full legal rights.
Wrongful Dismissal Litigation
To begin a court claim for wrongful dismissal, an employee prepares and serves the employer a Statement of the Claim document, which sets out the employee’s requests for remedies (e.g., damages for wrongful dismissal). At that point, the employer will generally have 20 days to file a Statement of Defence, outlining its position on the issues raised by the employee in the Statement of Claim. These documents are exchanged between the parties’ employment lawyers.
If the wrongful dismissal court claim is commenced in Toronto, Ottawa and Windsor, the parties are required to participate in a Mediation session. Otherwise, Mediation is optional.
What is Mediation?
Mediation is a dispute resolution process in which the parties select an independent third party (“Mediator”) to help them resolve their dispute or lawsuit outside of court. The mediation is confidential and the Mediator is not allowed to make binding decisions on the parties. Rather, the mediator attempts to facilitate a settlement between the parties by looking for a solution that works for them.
While many employment-related disputes settle at the Mediation stage, parties are often required to continue with the wrongful dismissal litigation to the next stage of examinations for discovery.
What are Examinations for Discovery?
This is an important stage of wrongful dismissal litigation which allows each side to better understand its own case, its opponent’s case, to narrow down the issues and facilitate a settlement. In some cases, the parties then conduct the Examination for Discovery before going to Mediation.
In an Examination for Discovery, each side examines each other under oath (either orally or by written questions) by asking questions regarding their evidence (e.g., documents and statements upon which it relies to prove its case). The Parties attend with their employment lawyers, and must bring copies of all non-privileged documents.
While the vast majority of wrongful dismissal litigation claims are resolved at some point before a court trial, it may not always be the case. At that point, the parties must meet and review their case with a judge for his or his opinion of the case in a Pre-Trial Conference. During this stage, the parties make their preliminary arguments before a judge who helps the parties explore the possibility of settlement or, failing that, to set a trial date and establish a plan and timetable so that the trial will be ready to proceed and the estimated trial length will be accurate. The pre-trial judge cannot make any binding decisions on the parties and, if a trial is scheduled, a different judge will preside.
If despite the above stages in a litigation the matter is not settled, the final stage is the actual Trial, where each side presents its case before a judge who makes a binding decision (i.e., a Judgment). At trial, the parties present their arguments, provide their evidence, and ask for the judge’s consideration and determination.
In Ontario, the vast majority of wrongful dismissal cases are resolved long before they ever reach a court room. Statistics show that the settlement rate for civil lawsuits in Ontario is over 96%, which means that only about 3% or 4% of cases that go all the way through trial.
Contact Employment Lawyer
At Bune Law in Toronto, you will be provided with experienced legal advice on a wide variety of employment matters, including what steps to take if your employment and you want to negotiate a fair severance package. Contact us online or at 647-822-5492 for a consultation.
If you are an employee who believes you were wrongfully dismissed by your employer, call our employment lawyer today to discuss how we can help. You may be entitled to more generous severance compensation under Ontario common law.
If you are an employer, you should speak with an employment lawyer to discuss your options before making the decision to terminate employment and obtain the proper termination documentation for your employee.
No matter which side you are on, our employment lawyer is constantly up-to-date with the law and ready to assist you. Don’t hesitate to reach out to Bune Law at 647-822-5492.
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