For those of us that specialize in employment law, advising the recently-dismissed employee can be among the most challenging of experiences. In many cases, the employee is quite emotional, and more often than not, they have been filled with ideas about what the law requires by their colleagues, family, and friends. Not only do we have to encourage them to approach the situation objectively, but we also have to dispel them of many of the notions that have filled their head.
Since the Supreme Court of Canada’s decision in Honda v. Keays, dismissed employees have increasingly sought bad faith damages in severance negotiations and wrongful dismissal actions. A key issue in these claims is whether the employer’s conduct was sufficiently egregious to justify these damages. The courts are clear that not every perceived offence or instance of misconduct will give rise to a finding of bad faith.