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Difference between revisions of "Strategies and Tips for Employment Law (9:VII)"
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Strategies and Tips for Employment Law (9:VII) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 15, 2022}} | ||
{{LSLAP Manual TOC|expanded = employment}} | {{LSLAP Manual TOC|expanded = employment}} | ||
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If evidence is in the possession of the employer, consider writing to the employer and asking them to put a litigation hold on all documents generally, and identify specific documents which the employee is aware exist. Warn the employer that if they do not preserve the evidence, you would be asking a court to draw an adverse inference in relation to such evidence if the matter proceeds to litigation. | If evidence is in the possession of the employer, consider writing to the employer and asking them to put a litigation hold on all documents generally, and identify specific documents which the employee is aware exist. Warn the employer that if they do not preserve the evidence, you would be asking a court to draw an adverse inference in relation to such evidence if the matter proceeds to litigation. | ||
Employees can also consider making a freedom of information request, such as a PIPA request, to request any information in the possession of the employer that relates to the employee. | |||
An employee who is dismissed may receive severance pay eventually; however, sometimes this can involve a long process. If the employee is receiving EI, they may have sufficient financial resources to wait a longer time to receive severance pay, and so they will be less likely to be forced to take a low settlement offer to pay their monthly bills. File for Employment Insurance immediately after being dismissed as Service Canada imposes time limits for filing. Make sure the employee understands that if they receive a severance settlement or judgement later on, they may have to pay back some of the EI benefits received during the severance period. | == B. Make a claim for Employment Insurance == | ||
An employee who is dismissed may receive severance pay eventually; however, sometimes this can involve a long process. If the employee is receiving Employment Insurance (EI), they may have sufficient financial resources to wait a longer time to receive severance pay, and so they will be less likely to be forced to take a low settlement offer to pay their monthly bills. File for Employment Insurance immediately after being dismissed as Service Canada imposes time limits for filing. Make sure the employee understands that if they receive a severance settlement or judgement later on, they may have to pay back some of the EI benefits received during the severance period. | |||
== C. Make Reasonable Efforts to Mitigate Losses and Track Mitigation Efforts == | == C. Make Reasonable Efforts to Mitigate Losses and Track Mitigation Efforts == | ||
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Employees should also be encouraged to keep accurate records of their job search efforts, for potential use as evidence at court. | Employees should also be encouraged to keep accurate records of their job search efforts, for potential use as evidence at court. | ||
== D. File a | == D. File a Claim Quickly == | ||
Once an employee finds a new job, they begin to mitigate their damages | Once an employee finds a new job, they begin to mitigate their damages, which will reduce their severance award. File a claim as soon as possible; if the employee can reach a settlement agreement or have the case tried before the employee finds a new job, you may avoid having a severance award reduced for mitigation income. | ||
== E. | == E. Consider Complexity and Strength of Claim == | ||
If a claim is filed that is relatively simple, the employee is more likely to get through the process more quickly; this is helpful if you wish to try to finish the process before the employee gets a new job and begins mitigating their damages. However, there can also be benefits to adding claims for aggravated or punitive damages or various torts, and benefits to splitting a claim into more than one forum; namely, there is the potential for a greater award and the potential for tax advantages on the damages received. Consider the strength of the claims, how important it will be for the employee to receive money quickly, and the likelihood of the employee finding a new job and mitigating their damages, before deciding whether to make a simple claim for severance pay, or to add additional claims. | If a claim is filed that is relatively simple, the employee is more likely to get through the process more quickly; this is helpful if you wish to try to finish the process before the employee gets a new job and begins mitigating their damages. However, there can also be benefits to adding claims for aggravated or punitive damages or various torts, and benefits to splitting a claim into more than one forum; namely, there is the potential for a greater award and the potential for tax advantages on the damages received. Consider the strength of the claims, how important it will be for the employee to receive money quickly, and the likelihood of the employee finding a new job and mitigating their damages, before deciding whether to make a simple claim for severance pay, or to add additional claims. | ||
== F. Consider | == F. Consider Tax Consequences During Settlement Negotiation == | ||
An employee must pay tax on the portion of an award that is given in place of the wages they would have received during their reasonable notice period. | An employee must pay tax on the portion of an award that is given in place of the wages they would have received during their reasonable notice period. | ||
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Note that this chapter, and LSLAP, cannot provide tax advice, and an employee may wish to consult an accountant or tax lawyer or the Canada Revenue Agency to determine exactly which amounts of a final settlement are taxable, and what the best strategy for payment structuring would be for a particular employee. It is helpful to obtain this recommended strategy from the employee’s financial advisor at an early stage, so that the settlement structuring request can form part of the severance negotiations. | Note that this chapter, and LSLAP, cannot provide tax advice, and an employee may wish to consult an accountant or tax lawyer or the Canada Revenue Agency to determine exactly which amounts of a final settlement are taxable, and what the best strategy for payment structuring would be for a particular employee. It is helpful to obtain this recommended strategy from the employee’s financial advisor at an early stage, so that the settlement structuring request can form part of the severance negotiations. | ||
== G. Consider | == G. Consider Pursuing the Claim in Different Forums == | ||
In some cases, it may be advantageous to split up the various employment issues an employee faces | In some cases, it may be advantageous to split up the various employment issues an employee faces and proceed in different forums based on which forum will award the greatest amount of money for each legal issue. | ||
For example, one may wish to claim overtime pay and vacation pay at the Employment Standards Branch, and claim severance pay in Small Claims Court. This | For example, one may wish to claim overtime pay and vacation pay at the Employment Standards Branch, and claim severance pay in Small Claims Court. This may be beneficial because overtime pay is only legally required under the ''ESA'', unless the employee’s contract calls for overtime pay to be paid, meaning that claims for it can only be brought at the Employment Standards Branch. However, severance pay tends to be significantly greater in Small Claims Court. | ||
Often it will be best to keep the entire claim in one forum. Note that section 82 of the ''ESA'' states that once a determination has been made by the Employment Standards Branch, the employee may commence another action for the same wages only if the Director gives written permission or the Director or tribunal cancels the determination. This prevents the possibility of “double recovery”; if an employee received damages for an action in one forum, they may not receive the same damages in another. However, even if an employee has already gone through the Employment Standards Branch to obtain the minimum statutory entitlement for length of service under the ''ESA'', they are still able to make a claim in court for contractual breaches such as wrongful dismissal, and therefore they may potentially obtain additional severance pay (''Colak v UV Systems Technology Inc'', 2007 BCCA 220, https://canlii.ca/t/1r5sc). Nonetheless, proceeding at the Employment Standards Branch to claim the statutory minimum entitlements for length of service can be problematic for several reasons. Firstly, if the employee is also going to be proceeding in Small Claims Court for wrongful dismissal, a claim at the Employment Standards Branch may simply cause an extra expenditure of effort with no additional benefit. Secondly, if the Employment Standards Branch makes a determination as to whether or not there was just cause for dismissal, this determination is likely to be adopted by Small Claims Court if a claim is later filed there. It should be considered that of these two forums, only the Small Claims Court decisions are made by judges, so if it is anticipated that there may be complex legal arguments on the issue of just cause, it may be beneficial to proceed in Small Claims Court. | Often it will be best to keep the entire claim in one forum. Note that section 82 of the ''ESA'' states that once a determination has been made by the Employment Standards Branch, the employee may commence another action for the same wages only if the Director gives written permission or the Director or tribunal cancels the determination. This prevents the possibility of “double recovery”; if an employee received damages for an action in one forum, they may not receive the same damages in another. However, even if an employee has already gone through the Employment Standards Branch to obtain the minimum statutory entitlement for length of service under the ''ESA'', they are still able to make a claim in court for contractual breaches such as wrongful dismissal, and therefore they may potentially obtain additional severance pay (''Colak v UV Systems Technology Inc'', 2007 BCCA 220, https://canlii.ca/t/1r5sc). Nonetheless, proceeding at the Employment Standards Branch to claim the statutory minimum entitlements for length of service can be problematic for several reasons. Firstly, if the employee is also going to be proceeding in Small Claims Court for wrongful dismissal, a claim at the Employment Standards Branch may simply cause an extra expenditure of effort with no additional benefit. Secondly, if the Employment Standards Branch makes a determination as to whether or not there was just cause for dismissal, this determination is likely to be adopted by Small Claims Court if a claim is later filed there. It should be considered that of these two forums, only the Small Claims Court decisions are made by judges, so if it is anticipated that there may be complex legal arguments on the issue of just cause, it may be beneficial to proceed in Small Claims Court. | ||
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*The other party knowingly took advantage of this vulnerability. | *The other party knowingly took advantage of this vulnerability. | ||
A | A severance release is also unenforceable if it was entered into under duress. For more information on the law of duress, generally, see ''Bell v. Levy'', 2011 BCCA 417, https://canlii.ca/t/fnl3g. | ||
{{LSLAP Manual Navbox|type=chapters8-14}} | {{LSLAP Manual Navbox|type=chapters8-14}} | ||
