Both employers and employees alike need to consider how to approach an employment law dispute in order to obtain the best possible outcome and to avoid unnecessary issues that may further complicate or compromise the resolution process. One of the key factors in that assessment is to understand when to use the tool of negotiation in an effort to resolve an employment law dispute rather than litigation or, alternatively, when litigation may be the best course of action.

This blog looks into what sort of employment law issues commonly escalate between employers and employees into a dispute that may resort to needing litigation in order to resolve. We then discuss at what time should an employment lawyer become involved and how litigation and negotiation are often complementary tools in an effort to resolve a dispute and not necessarily mutually exclusive to each other. Finally, we set out in what circumstances that litigation may be the only answer to finally resolving an employment law dispute between employer and employee.

What Types of Employment Law Issues Escalate into Litigation?

There are several common employment law issues that are seen in employment law litigation. For example, wrongful dismissal claims, constructive dismissal claims, termination for cause, human rights violations and discrimination, workplace bullying or harassment, workplace investigations, and employment contract or employment agreement disputes all can escalate into litigation.

When to Approach an Employment Lawyer?

There are some triggers that can signal to an employee or employer that there is a dispute (often relating to the claims as set out above) which may need the assistance of an employment lawyer.

For example:

1. When an employee received a termination letter, termination package or severance package.
2. When an employer has received a demand letter from a dismissed employee asking for termination pay or severance pay.
3. When an employer decided to make changes or has made changes to an employment relationship with an employee.
4. When an employer has received a complaint from an employee related to workplace bullying, harassment or discrimination.
5. When an employer decides that they need to terminate an employee for cause.

Zeilikman Law has various blogs about this topic. For additional reading, please take a look at our blogs entitled When Should an Employer Hire an Employment Lawyer? or When Should an Employee Hire an Employment Lawyer?

Litigation and Negotiation are Often Complementary and Not Mutually Exclusive

It is a misconception among people that disputes are resolved either without litigation (via negotiation) or solely through the means of litigation (going through the court process) without any overlap between the two. This is simply not the case, and, in many instances, employment law disputes are resolved using a combination of both negotiation methods and litigation tactics.

Here are two common examples of when negotiation and litigation go hand in hand throughout the process of resolving employment law disputes. Let us look at the first example in the context of a wrongful dismissal claim. To remind, there is the possibility of a wrongful dismissal claim where an employee has been fired by their employer without reasonable notice of that dismissal. Where wrongful dismissal is present, the employee may be entitled to compensation. This is arguably one of the most common and contentious ways in which employment law affects workplaces in Ontario.

The first example of a how a wrongful dismissal claim may be resolved using both litigation and negotiation is the “demand letter.” A demand letter is not litigation. There is no rule in Ontario that sets out that the parties must exchange any correspondence before litigation begins. However, in almost every case, when an employee feels that they have been wrongfully dismissed and they have retained an employment lawyer to represent them, the employment lawyer feels that it is necessary to begin, not with drafting a statement of claim, but with preparing a demand letter for the employer to review and make their own assessment of what next steps should be taken.

The demand letter in the employment law context in Ontario often takes very similar forms and the steps in preparation are nearly identical among various disputes. First, a lawyer sets out some basic facts about the set of circumstances relating to the dispute. Then a lawyer will apply those facts to the prevailing Ontario law and set out what the result may be if those facts are brought before an Ontario court and a judge is asked to determine the outcome of the matter. Finally, the lawyer will set out the “demands” of their client. This means what the client wants from the employer to resolve the dispute. At the end of the letter, the lawyer will usually set out that if the parties cannot resolve the dispute via negotiation, they are prepared to proceed to litigation. In the case of a wrongful dismissal claim, the employee’s lawyer usually starts with some basic facts (when the employee was dismissed, what was offered in terms of notice, the age of the employee, what type of job they had, the circumstances surrounding their termination, etc.). The lawyer will then apply those facts to what they believe the employee should get in terms of notice based on the law and then make demands about how much the employee should be compensated in terms of termination pay and possibly severance pay.

The reason why demand letters are so often used in practice is that the parties can immediately see what the other side’s position is without the formality of a lawsuit. It is a pathway that can be used to proceed with negotiation and resolution if both sides can see that their position can be resolved. However, it can also be used to proceed directly with litigation as both parties can quickly understand that they are simply too far apart in their views of what took place and how to resolve the dispute.

Our second example is mediation. Mediation can be looked at as a managed, structured and confidential process that involves a third party called a “mediator.” It is not necessarily part of litigation, but it often is part of the process of litigation. The mediator is neutral to the dispute and is not a judge that is involved with the matter in the courts. The mediator does not have power to make the parties settle the dispute. However, the purpose of the mediation is to “settle” or resolve the disputes in a managed way that involves a lot of negotiation and compromise in an effort to avoid the trial process and come a reasonable resolution. For more information about mediation, please visit our website to read our blog entitled Mediation in Employment Law Litigation.

Sometimes Litigation is the Only Answer

Litigation is often the only answer when the parties’ positions or perspectives on what occurred or what circumstances took place are simply too dissimilar to be successfully negotiated. For example, if there is bullying or claims of workplace harassment that the employee believes they were subjected to and the employer feels or cannot acknowledge that harassment or bullying may have taken place, then litigation may be the tool necessary to finally resolve the dispute.

Again, this can often be determined right at the stage of the demand letter. If an employer is in receipt of a demand letter setting out claims by a dismissed employee that the employer believes are not acceptable given what took place and what the law in Ontario is, they only option then could be to allow the employee to file a claim and respond to that lawsuit.

We strongly suggest that employers and employees alike approach an employment lawyer before they proceed with litigation in every instance that litigation is possible given the employment law issue at hand. An employment lawyer is in the best position to help an employee or employer determine what the best steps are for them to take given what the law states and what the circumstances are of a given matter.

How Can Zeilikman Law Help?

Approaching an employment lawyer is often necessary in order to finally resolve an employment law dispute. Employment lawyers can assist both employers and employees by reviewing the unique set of circumstances in each case or matter and then helping the parties determine what the best steps are to take to resolve the dispute.

You can contact our office at (905) 417-2227 or online here to schedule your own confidential consultation with Zeilikman Law.