Occasionally in these pages, I have predicted significant changes in my field.
About three years ago, between the flood of new entrants calling themselves employment lawyers, especially after regulations rendered personal injury law less lucrative, and the increasing ubiquity of employment contracts, I predicted a dramatic shrinkage in wrongful dismissal cases across this country.
But COVID-19 saved employment law and many “employment lawyers.” Two years ago, I announced in these pages the anticipated dramatic expansion in employment law with millions of Canadians having viable constructive dismissal cases, from being laid off or having their income reduced, and court decisions both invalidating virtually every existing employment contract and adding bonuses, tips, stock options and all other forms of remuneration to employees’ likely payout based on the Supreme Court of Canada’s decision in Matthews v Ocean Nutrition , in which I successfully acted.
Millions of Canadians with enhanced cases and virtually no valid contracts to reduce their claims: what a lethal combination for employers. And it was!
But now, it will change again.
It seems that virtually all lawyers are now calling themselves “employment lawyers“ with its seemingly simple path to the comparative riches which employment law appeared to represent, particularly compared to other areas which COVID-19 had been less friendly to.
So, there’s an increasingly crowded field with many lawyers bearing rather dubious qualifications to call themselves experts. Had they ever tried a single wrongful dismissal case, argued an appeal, been asked for advice by a single in-house counsel on behalf of an employer, written even one academic article or taught lawyers at a professional conference? But employment lawyers they profess to be, however limited their actual knowledge and however minimal threat they may pose to experienced opposing counsel.
That shaky foundation is about to collapse, primarily for two reasons.
The first is that the courts have provided clear guidelines as to what must be in employment contracts to reduce severance pay. Employers have heeded that and are drafting contracts accordingly. We have one lawyer in our office who has spent virtually all of their time this last year drafting such contracts.
But the dominant reason is less apparent.
We have all heard, and I have discussed, the Great Resignation, with employees resigning in record numbers with new jobs readily available. The full employment economy, which preceded COVID-19 through much of Canada has been transcended in 2022 with multiple job offers for every available candidate.
Many employers cannot retain employees, let alone recruit more. I spent this week in Vancouver negotiating a collective agreement for a client. They had what has become a common conundrum. While they have to pay more to retain and recruit, the economics of the business do not permit those requisite wage levels.
How does this relate to the relative demise of employment law? During the pandemic an employee with a case for, say, 20-months severance, would usually be awarded those 20 months because they could not find other work within those 20 months. Every lawyer’s statement of claim noted the impact of the pandemic in making comparable employment an unattainable task. But now, an ostensible 20-month award is rendered nugatory by the stark availability of new employment opportunities.
Many do not realize that, although an employee may have a theoretical claim to 12 or 24 months’ severance, wrongful dismissal damages are designed to protect employees against unemployment so that, if they obtain a new job at the same or greater pay after, say, four months, all a court will award is those four months, not 12 or 24. Moreover, if the employer can prove that the employee could have found such work with reasonable effort, the employee will be treated as if she actually found such work.
Therefore, when acting for employees, I have them conduct and document a detailed job search to prove that they were seeking employment. Failure to look, as I mentioned, can be fatal.
But when acting for employers, I conduct a parallel job search to show the ready availability of opportunities for that suing employee.
I also retain experts to show that the employee in question could have found work with reasonable effort in three or four months, not the 24 months being sued for. If the court accepts that evidence, the employee will only be able to recover those three or four months. I can now tell my employer clients that they have very little to fear from virtually any employee suing them because there are few cases where I cannot demonstrate that an employee cannot now easily relocate.
With multiple jobs available for virtually every employee, the bucket-shop contingency lawyers are shortly going to be in great difficulty as the cases they have will be worth much less and fewer employees, knowing they can find alternate work easily, will bother even suing. For the many new entrants to my field, personal injury law may have renewed attraction.
BY HOWARD LEVITT
