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Do I Have a Good Wrongful Dismissal Case?

By John Edward C. Hyde & Nicholas Goldhawk

A question we get asked by almost every employee client is “do I have a good case?” But it’s one we try not to answer with a simple “yes” or “no”. If we have done our job well, then by the end of the consult, our clients will be able to answer that question themselves.

To help clients arrive at that answer, we discuss with them what they should do, what they should think about, and when it comes to litigation, whether the risk is worth the reward.

Here is how that conversation often proceeds:

1. Is it worth it to go for more?

If you have been terminated, it is usually worthwhile to at least have us send a demand letter to your employer. This will be relatively inexpensive and usually yields an increase to the first offer.

2. If my lawyer sends a letter, is it possible that my employer will withdraw their first offer?

Is it possible? Yes. Is it likely? No. Your employer has already displayed an interest in resolving the matter. Unless some new important information comes to light (for instance, that you started a new job), the first offer almost always remains on the table.

3. But my termination letter includes a deadline!

Most termination letters contain an offer which expires after approximately 1 week. In most cases, after lawyers get involved, the first deadline will pass without anyone mentioning it.

4. Okay, then how long will this take?

It depends. Will it settle after a letter and a phone call? Will it settle after a claim is issued? At mediation? At pre-trial? Will we push this to trial? Most cases take a few months, but some take as little as 2 weeks, or as long as 3 years. The timeline will depend on both parties’ willingness to compromise with the other. That level of willingness tends to change over time during litigation.

5. Will I end up with more than the first offer?

Say your case is worth 16 months, but your employer has offered 10. Yes, usually you will end up with more, but subject to a very important caveat: only if you remain unemployed for that long. If, for instance, you secure a new job at the same pay after 8 months, then your wrongful dismissal damages will be limited to 8 months’ pay.

6. That’s okay, I just won’t look for a job.

Unfortunately, that won’t work either. Wrongfully dismissed employees have a duty to make reasonable efforts to search for alternate employment. If those efforts are shown to be deficient or non-existent, it could seriously harm your case.

7. All I want is a fair outcome.

This is the right mindset. Fairness could include a broad range of outcomes. Whether a particular offer or outcome is fair will depend on your circumstances. It is a question you should feel comfortable answering yourself after exploring all the issues with your lawyer.