How to defend a wrongful dismissal action? If you receive a notice of a lawsuit from a former employee alleging wrongful dismissal, you should consider carefully how to proceed. Wrongful dismissal litigation is expensive and time-consuming, and may have adverse consequences on the morale of remaining employees.
Litigation in this area usually involves issues of reasonable notice. The following are some suggestions as to how to approach a wrongful dismissal lawsuit:
Review the claim carefully.
Before retaining a lawyer, make sure you have not overlooked something that may adversely affect your position.
Choose the right lawyer.
Find a lawyer who practices in the area of employment law and who has the same philosophy as your company with respect to how these matters should be handled.
Ask for a legal opinion.
Early in the process, ask your lawyer to provide you with a legal opinion on the merits of your case.
Work with your lawyer.
The case will be only as good as the facts. Make sure you provide all the relevant facts and documentation to your counsel as soon as possible.
Never allege cause if none exists.
A just cause will result in a lengthier legal proceeding. If put forward and it is unsuccessfully argued, a court may impose severe cost consequences on the employer.
Investigate for other improper conduct.
Where just cause is part of the defense, it may be appropriate to conduct a thorough investigation following the employee’s termination. Where the employee has been involved in improper conduct prior to termination date, you may be able to rely on this information to strengthen a just-cause defence.
Avoid defamatory statements.
Making untrue statements about the terminated employee or about the lawsuit may lead to a claim for defamation.
Should a letter of reference be made available?
Do not automatically discount providing a reference letter just because you are being sued. Consider each case separately and talk with your lawyer.
Offer to settle.
The case may settle, avoiding further time and costs.
Consider mediation as an option.
There are very few wrongful dismissal actions that cannot be successfully mediated. What this means is both parties agree to refer the dispute to a third party who will assist in reaching a settlement that both can live with.
Eileen Caruk is the vice-president of The Stirling Group, specializing in labour/employee relations. She can be reached at email@example.com or (416) 534-7552.