The Complex Realities of Employment Law Claims
Employment Employee Rights Employment Wrongful Termination Employment Employment Contracts
Summary: While many think that employment law claims are straightforward, it is actually a complex area of law which requires an examination of many aspects of the employment relationship through a contractual and common law lens.
The Complexity of Employment Law Litigation
While it may seem a straightforward area of law, employment law litigation in Canada can be a complex area requiring an understanding of multiple pieces of legislation and an understanding of the rules and procedures of the Court system, Human Rights Tribunals, Employment Standards Committees, Worker Compensation Tribunals and union and labour grievance procedures. On top of all this, there is then applying the relevant law and legislation to workplace relationships, provincial government workplace relationships, and federal government workplace relationships, all of which can bring different considerations into the mix.
Moreover, aside from the legal complexities, there are strategic considerations that come into play when you are representing different parties. The approach a lawyer might want to take while representing and employee client might be very different than the approach they would take with an employer client.
When Representing an Employee
When a lawyer is representing an employee in employment litigation your client is usually the underdog. They do not have the deep pockets of their former employer. They may not even have the funds to properly retain you and success if never a given.
Some of the more common areas which are the focus in employment litigation when representing an employee are:
- Wrongful Dismissal
- Constructive Dismissal
- Employment Contracts
- Employee Disability
- Maternity Leave
- Executive Employees
- Human Rights Complaints
- Workplace Harassment
When representing an employee in an employment law claim the most important consideration is moving the matter along with as much speed as possible. Your clients are often without income and if severance is at issue their position is stronger from a negotiating standpoint if you can bring the matter to summary judgment during the relevant notice period. You can also bring depending on the matters at bar, bring actions in multiple venues at once to exert pressure on the Defendant. It can often be reasonable to bring an action in the Supreme Court at the same time you initiate proceeding in a Human Rights Tribunal, as well as initiating an Employment Standards proceeding if there is no duplication of remedies sought.
When Representing an Employer
The considerations when representing an employer client in employment litigation can be much different from when you are representing an employee. Many complaints against employers fizzle out before they become anything substantive so taking a slow and steady approach to employer side litigation is often beneficial for a client. There is almost never any pressing need to have claims against an employer heard quickly and taking a responsive approach can save your client significant legal fees.
Some of the more common areas which are the focus in employment litigation when representing an employer are:
· Employment Standards Compliance
There are two main areas to focus on when representing employer clients in employment law ligation.
The first is recognizing exposure to claims when they are brought and evaluating the appropriate response. A smart employer client does not want a “bulldog” litigator who will simply attack when let off their proverbial “leash”. All that will do is end up costing the client significant legal fees on each case. What makes a good lawyer for employer clients is a lawyer who will evaluate the exposure of each claim on their merits and advise the client on how to proceed on a case-by-case basis with the only considerations that really matters, how much will it cost with respect to money, reputation, and carrying on business.
The second area of focus for employers is litigation avoidance. A good employment lawyer should advise their employer clients to structure their affairs such that any potential issues are dealt with as much as they can be ahead of time. This can be done with effective employment agreements and workplace policies, and a litigation minded approach to HR issues.
Taylor & Blair LLP
The lawyers at Taylor & Blair LLP have experience helping both employees and employers with their workplace legal issues. We have dealt with workplaces ranging from local closely held companies to large multinational companies doing business in Canada and elsewhere.
If you have an employment law matter and require legal assistance contact the lawyers at Taylor & Blair LLP today.
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