I had the privilege of serving as Managing Partner of a boutique law firm with about 20 employees for about six years. My experience practicing employment law certainly helped how I looked at human resources; however, I quickly learned my decision making included my legal rights and responsibilities
but had other competing factors.
Amongst other things, employers want risk management and prevention, employers want pragmatic solutions, and employers want their business interests protected. And employers want to be treated with courtesy, respect and integrity.
Risk management is critical. Risk management needs to be considered both at hiring and at termination. But understand a difference between risk elimination and risk management.
1. The reasonable notice required for long term employees can be a disincentive to laying underperforming employees off where just cause at law doesn’t exist. Employers want sustainable employment agreements with reasonable and enforceable notice of termination provisions. My
recommendation to employers is to ensure their notice of termination provisions are greater than statutory minimums.
2. Sometimes employers are willing to give an employee pay in lieu of notice even if just cause exists – they know alleging just cause can be financially costly in the long run, and they may not succeed. They’d rather pay the employee now than pay a lawyer now and maybe pay the employee later anyway.
3. Sometimes employers want to dismiss an employee for justifiable reasons that legally don’t amount to just cause at law. In those moments, employers don’t want advice on how much common law notice, or pay in lieu of notice, they must give – rather, they want advice on how to avoid getting sued. The advice employers may need includes:
a. Paying employment standards legislation pay in lieu of notice/severance pay is insufficient to ensure any release is enforceable.
b. How much extra severance pay they should offer to entice someone to sign a release.
c. Whether benefits must be continued during the notice period – even if pay in lieu of notice is given, and which benefits.
d. What they can and cannot say when dismissing someone.
e. What to put on the record of employment.
f. What they can and can’t say when asked by a future employer about the employee. The second point can be tricky. As lawyers we are prone to advising our clients what a court might do. Employers, and employees, may have a different idea of what is fair. As an example, many years ago I had a 67-year-old person who was laid off in a mass lay off. They had been with their employer for about 35 years. The employer mistakenly believed they didn’t need to pay proper severance because the employee had
passed retirement age; so, while most others were offered six months severance pay, this employee was only offered several weeks. The employee came to me seeking the same six months. We ended up settling for fifteen months pay in lieu of notice, which was a compromise. Had the employer had good counsel who understood risk management; that counsel might have advised giving that employee the same six months, even though they’d be entitled to more at common law, and hope the employee is content. In this scenario, the employer would have saved nine months pay and legal fees.
When it comes to pragmatic solutions, employers want their counsel to provide business solutions rather than just providing a legal answer (and especially when the legal answer is you can’t do that.) Employers are concerned about the bottom line; they want to know the most cost-effective solution. That being said, employers also know that legal fees are a deductible business expense. It can be a delicate balance.
Just like any other client, employers want to be treated with courtesy, respect, and integrity. The practice of law is a professional services industry. While we have clients, not customers; our clients still deserve high-quality service, including timely and responsive communication, courtesy, and respect. All clients expect their lawyers to treat them with integrity. In my mind, our duty of integrity to our client includes giving
frank, accurate, and practical advice, even when that advice may be unwelcome or runs counter to the client’s initial expectations.
Ultimately, employers are not simply looking for technically correct legal answers; they are looking for lawyers who understand risk management, business realities, and human dynamics. Effective employment-law advice requires balancing legal rights and obligations with pragmatic, cost-effective solutions that protect the employer’s broader business interests and reduce the likelihood of litigation. This includes anticipating disputes, crafting sustainable employment agreements, and approaching terminations in a
way that manages risk rather than attempts to eliminate it entirely. At the same time, employers expect to be treated with courtesy, respect, and integrity. As legal advisors, we are in the business of professional services, which means providing candid assessments of risk, fair and realistic evaluations of likely outcomes, and advice that aligns legal strategy with business objectives. When counsel delivers honest, practical, and business-minded guidance, employers are better positioned to make informed
decisions that are both legally sound and commercially sensible.