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Seniority, it's hard to take it with you.

Wrongful Dismissal lawsuits are rarely about whether the employer had a good reason to terminate an employee.  Unless an employer is claiming that the employee did something so awful they deserve no notice or payment, the reasons for the termination are not the issue. 
 
What is usually at issue is how much notice or pay in lieu of notice the employee should have received.  That is assessed by the Courts primarily based on an employee’s age, seniority and level of responsibility.
 
Sometimes, employees try to claim that their seniority should include the time they spent with an old employer that they were induced to leave to take the new job.  The inducement argument can be a very tough hill to climb. 
 
Jack had worked in an executive position with an auto parts employer for 7 years, when he was contacted by a friend and former colleague.  The friend told Jack that there was an opening at his company for somebody with Jack’s skillset.  The friend connected Jack with the person doing the hiring and had no further part in the process.  Jack claimed at Court that the friend had been “selected” to recruit him, but that was mere speculation.  There was no evidence that the friend was being anything other than a friend.
 
Jack went through two separate interviews before receiving a job offer.  The position had been publicly posted and many applications had been received.  Others were interviewed. 
 
When Jack received his job offer it included a probationary clause and Jack tried to have that deleted.  The employer refused.  Ultimately, a deal was agreed upon and after he signed off Jack resigned from his old employment. 
 
Unfortunately, Jack was terminated almost three years later and was offered three months’ salary as pay in lieu of notice.  He refused and sued for 12 months pay in lieu of noticed based on him being induced to leave his 7 years of secure employment.  His inducement argument failed and that is not surprising.
 
The perfect inducement case is one where somebody is happily employed and is contacted out of the blue.  Despite their reticence, they take some meetings with a potential employer.  No other candidates are interviewed and the job is not posted.  There is no contract with a probationary period in it and strong representations about the security of the position are made.  Within 24 months’ the employee is terminated through no fault of their own.
 
That was not Jack’s case.  The evidence was that while he was not actively looking for new employment, he was growing increasingly discontent with his old employment situation.  While the employer boasted that it was a great place to work, nobody promised him forever.  It is hard to argue you took the job having been assured of secure employment when the offer includes a probationary clause the employer refuses to remove.
 
Jack’s notice was based on his three years of service and his executive level position.  He was awarded four and a half months’ pay, in part because he was terminated at the beginning of the summer when it is deemed that hiring decisions are delayed for vacation schedules.  He was awarded four and a half months’ pay.  Ironically, Jack found a job after ten weeks and the judge deducted from the four and a half months everything he made from the new job.  Jack ended up with roughly the same amount he was offered by the employer in the first place. If he had succeeded on the inducement argument the numbers would have been better since the new job paid less. This Jack definitely did not make it to the top of the inducement hill.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com