Jottings By An Employer's Lawyer

Tuesday, November 17, 2009

Wrongful Termination North of the Border

Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a “Consensual” Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary.

The case in question involved a manager who was discharged after he had engaged in not one, but two "consensual" sexual relationships with subordinates. The second one occurring shortly after he had been warned about the first relationship. Besides having what Professor Doorey calls one of the "great lines in recent Canadian legal jurisprudence":
"The relationship was on its face consensual. Her interest in the affair was based in lust; the basis of his interest may have been the same or otherwise."
the case also points out a different liability standard and a different way of handling attorneys fees.

For liability there is a concept of "notice," which must be given if there is no cause. Fortunately for the employer, the court held that there was cause in light of a managerial employee's obligation to help ensure a workplace free of sexual harassment and, interestingly, protect the employer from claims of sexual harassment. It was a good thing, because the court went on to hold that if notice had been required it would have been 18 months worth of pay.

One of the differences that may be the most appealing to employers in the US is the way attorneys fees are handled. Here, since he lost the employee was liable for attorneys fees of the employer.

Not too surprisingly however, the court did not stick the employee with the full amount claimed by employer's counsel, which was almost $200,000. (Apparently Canadian management side lawyers are just as expensive as their American counterparts.) Instead, the manager was assessed $37,000. Still a hefty sum and one that would certainly discourage much litigation.


I think the record still belongs to the warden at the women's prison in Miller v. California Department of Corrections, 36 Cal. 4th 446 (2005), who was having affairs with at least three subordinates. Why would anyone practice employment law in any other state?
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