Improperly Drafted Pleadings Result in Dismissal of Action

Written by on December 9, 2013 in Employment Law Blog, Terminations
Dismissal of Action

In Musoni v. Logitek Technology Ltd. (“Musoni”), a self-represented employee ultimately lost his case by failing to properly plead the issues. If the issues had been pleaded properly, the outcome would likely have been in the employee’s favour.

In Musoni, a bilingual customer support agent was terminated without cause after 2 years of service and provided with 15 days notice in accordance with the termination clause contained in an Employment Agreement entered into between the parties after the employee commenced employment. In the Statement of Claim and at Trial, the employee admitted that the Employment Agreement was valid and that the 15 days notice provided, which the employee had deposited into his account upon receipt, was adequate notice. The employee’s point of contention was the way he was treated by his employer both during his employment as well as during the termination process. The employee sought $70,000.00 on the basis of the employer’s alleged wrongdoing, including intending to terminate the employee for cause even though the termination was actually without cause, attempting to justify the termination by fabricating certain incidents that contained inconsistent facts as well as asking the employee during the interview process whether he was a Liberal or a Conservative. At Trial, the Court determined that there was no legal foundation to support the employee’s claims for damages and dismissed the action. The employee then appealed the decision to the Ontario Court of Appeal, who upheld the Trial Court’s decision.

It is unfortunate that the employee chose to be self-represented as had the employee sought legal advice from an experienced Employment Law Lawyer, the outcome could have been very different. If the employee had not agreed that the Employment Agreement and termination clause contained therein were valid, and had instead taken the position that there was a lack of consideration at the time the Employment Agreement was signed, thereby rendering it invalid, the Court would have been able to analyze the validity of the Employment Agreement. Further, if the employee had taken the position that the termination clause would have violated the Employment Standards Act, 2000 in future, thereby rendering it invalid, the Court would have been able to analyze the validity of the termination clause. It is likely that the Court would have determined that the Employment Agreement as a whole and the termination clause specifically, were both invalid and therefore awarded additional notice to the employee. However, because the employee did not put these issues before the Court, and instead put forth issues without a legal foundation, a decision was rendered that was not favourable to this employee.

Impact of Decision on Employees

It is crucial for employees to obtain the advice of an experienced Employment Law Lawyer prior to entering into negotiations or litigation with their former employers. Even if an employee would prefer to represent themselves, it is still best to have an initial consultation to obtain legal advice with respect to determining legal causes of action and the strategy for moving a matter forward. The way that issues are presented in negotiations, pleadings, as well as at Trial, can mean the difference between a successful decision and a dismissal.

Impact of Decision on Employers

Although the employer was successful in the Musoni case, considerable time and money was spent on defending the litigation and had the issues been framed differently, the decision may have been in favour of the employee. It is important for employers to obtain the advice of an experienced Employment Law Lawyer when drafting and implementing Employment Agreements. If the terms of the Employment Agreements are not properly drafted or the Employment Agreement is not properly implemented, the employer may not be able to rely on the Agreement to limit liability. Being proactive at the beginning of an employment relationship can help minimize and even eliminate the risk of litigation at the end of the employment relationship.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how.

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