Yes, Even Big Law Bay Street Lawyers Need Employment Law Advice
“You are not going to make partner.”
“You should find something else.”
No termination letter is presented.
You will only be told that you have a few months to “find something else”, with vague explanations as to what will happen if you do not.
You might be introduced to a ‘career coach’ to help you with this “transition”. A transition to what, exactly?
No one will confirm whether your employment has been terminated or even use the word ‘terminated’ or ‘fired’.
You might stop receiving work.
External clients may be told that you are ‘busy’ when you are not, and your files may be surreptitiously transitioned to a new junior lawyer that has recently joined the firm.
Someone from a human resources-type department will repeatedly follow up with you to find out how your job search is going.
You might even be ignored by some of the partners you have known for years and have worked tirelessly for, without thanks. You might receive job postings from some of these partners.
Does this fact pattern sound familiar to you?
Well, it is one that routinely comes through my door.
Shocking as it might seem, this exact scenario plays out on a routine basis at some of the largest and allegedly most prestigious “Big Law” law firms in Toronto on Bay Street.
Why? You may ask. To avoid having to pay their associate lawyers their significant, lawful severance entitlements.
If you are an associate lawyer facing this scenario, now what?
A Primer on Dismissal
If you have not practiced employment law, not to worry.
In Ontario, an employee can be terminated ‘without cause’ at any time, so long as you are provided with sufficient notice and the termination is compliant with the Human Rights Code and the Occupational Health and Safety Act.
Terminations ‘with cause’ are for extremely rare forms of misconduct (i.e. fraud) that are unlikely to be at play in a Big Law law firm and employers that assert ‘cause’ when they do not have ‘cause’ can be hit with significant punitive, aggravated, exemplary or bad faith damages.
What makes a dismissal ‘wrongful’ is not that you have lost your job, but that an employer has not provided you with adequate severance.
How do you assess whether your severance is adequate?
The starting point is always the employment contract and what is said about termination. There is a legal presumption that all employees are entitled to common law reasonable notice upon termination unless the employment contract clearly and unambiguously rebuts that presumption. Much to the chagrin of employers, the enforceability of termination provisions is an ever-moving target, making it likely that an associate lawyer’s common law entitlements could range from somewhere between 4 to 8 weeks per year of service.
Now, what happens if you resign?
If you resign, you are entitled to nothing.
Seek Advice
What your firm has done is created a stalemate.
They have told you that you are not going to become a partner but they have not executed your termination, at least legally, by not providing you with the requisite written notice of termination as required by the Employment Standards Act, 2000 and O. Reg. 288/01.
Because of your significant remuneration package the firm is hoping to ‘shame’ you into resigning on your own volition, saving them a severance package.
Whatever you do, do not resign and seek advice.
Even Big Law Bay Street lawyers need employment law advice, and there is absolutely no shame in that.
The only shameful part is walking away without collecting your duly-owed severance.
Remember that given your significant remuneration package, this payment may be sizable, even if you are only owed the minimums prescribed by the Employment Standards Act, 2000. For example, a 8-year employee at a large Bay Street law firm is likely entitled to at least 16 weeks’ wages – potentially more, if the termination provision in your employment contract is not enforceable.
I have routinely advised lawyers in exactly these situations. I know exactly how the mechanics operate behind the scenes. It is always advisable to seek a legal consultation before taking any next steps, and I am happy to discuss your situation further. Contact my office today to set up a consultation.