How employers lose wrongful dismissal cases

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions Saved Articles My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeWorkHow employers lose wrongful dismissal casesHoward Levitt: Most employers lose because they made the right decision far too late — and with little documented evidence to justify itLast updated 20 minutes ago You can save this article by registering for free here. Or sign-in if you have an account.No termination letter can rescue a process that never existed, writes Howard Levitt. Photo by Adobe StockMost employers do not lose wrongful dismissal cases because they made the wrong decision. They lose because they made the right decision far too late — and with little documented evidence to justify it.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountThe law rarely punishes employers for firing poor performers. It punishes them for pretending they never noticed the poor performance until the day they decided to act on it.That distinction costs Canadian businesses hundreds of millions of dollars every year.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againThe pattern is almost always the same. A manager complains privately that an employee is missing deadlines, ignoring instructions or producing mediocre work. Everyone around the office knows there is a problem, yet no one tells the employee in clear terms.Nothing meaningful is committed to writing. Annual performance reviews remain positive — or at least not sufficiently negative — because confrontation is unpleasant and the manager has to keep working day to day with the employee. Management convinces itself the performance will improve or there will be another opportunity to address it.Until finally there isn’t.The employee is dismissed. A demand letter arrives. Management suddenly remembers every failure in vivid detail. Unfortunately, memories are not evidence.Judges are understandably skeptical of employers who discover years of poor performance only after they receive a demand letter and retain counsel. They have seen too many cases where a termination letter or response to a demand letter became an exercise in creative writing rather than an accurate summary of what actually occurred.The lawsuit is no longer about performance. It is about credibility.And credibility belongs to the party with the better contemporaneous record.Documentation is not bureaucratic busywork. It is proof that an employer acted honestly, reasonably and consistently.A brief email identifying the problem, explaining what must improve and warning of the consequences of dismissal (for cause) if it does not is worth more than pages of lawyer’s correspondence written months later. The least expensive legal advice is that obtained creating that email.No termination letter can rescue a process that never existed. Yet many organizations continue to avoid an uncomfortable conversation today only to spend hundreds of thousands of dollars defending that avoidance tomorrow.That is not prudent management. It is procrastination with legal fees attached.The lesson applies equally to executives. When I assess a dismissal case, I spend less time reading the lawyer’s letter than the employer’s file. A file containing candid emails, contemporaneous notes and clear performance warnings tells one story. A file assembled after the dismissal tells another. One reflects management. The other reflects damage control.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.By the time counsel is retained, the outcome of most dismissal cases has already been largely determined — not by what the lawyer says, but by what management did (or failed to do) months earlier.Employers frequently ask me what the most important document is in a wrongful dismissal case. The answer is invariably the one that should have been written long before anyone contemplated termination.Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.