Reducing legal expense in wrongful dismissal actions

This short article will summarize some strategies for employers and employees in making wrongful dismissal actions less expensive. Litigation expenses continue to increase to the point that many cases are uneconomic for dismissed employees in that the potential legal expenses are greater than the potential recovery. Employers sometimes end up paying more for legal fees than they could have paid to settle the case.
Dismissed employees should do the following in preparation for their first discussion with a lawyer:

1. Prepare a calculation of any amounts owing by the employer for wages, commissions, or vacation pay for the period prior to the termination;
2. Prepare a three-year written summary of income from employment attaching income tax returns for the last three years of employment;
3. Prepare a one-page chronology of the matters leading up to the termination;
4. Consider and advise your lawyer as to any strong leads or potential for finding other employment;
5. Put together a package of the following documents for your first meeting with your lawyer:
   • Resume;
   • Employment agreement or hiring letter and any revisions thereof;
   • Copies of any disciplinary letters if cause is being alleged; and
   • Termination letter.

After retaining a lawyer:

1. Keep a comprehensive record of any and all attempts to find employment and any expenses incurred in the job search;
2. Ask your lawyer about the potential for mediation early in the process;
3. Keep any correspondence with your lawyer organized in a binder or file on your computer for easy access;
4. If possible, avoid calls or emails with a single question unless they are very important. Usually it is best to save questions that are not urgent for a meeting or a comprehensive request for clarification of information. Lawyers usually have many cases on the go at the same time and it can be inefficient for the lawyer to respond to frequent communications as opposed to a set of questions.
5. Avoid communication that is intended primarily to vent frustration with the process or perceived unreasonableness of your former employer.

Employers should do many of the same things indicated above. With respect to the potential for the employee to obtain other employment, it is very useful to keep an eye out in your industry for potential job openings for the dismissed employee. An employee has an obligation to mitigate damages by taking reasonable alternate employment. An employer can assist its lawyer, and potentially reduce exposure to damages, by assembling information on positions that might be available that the lawyer would not be aware of.
By Alfred Kempf, Pushor Mitchell LLP

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