Expert: Timmy Chou - 8/13/2005

Question
Greetings.

I have a follow up question regarding the settlement amount in my case.

Specifically, what is the current market rate per day of arbitration in Canada and how long does a typical arbitration proceeding take to complete?

I would also like to include in the settlement amount the perceived cost of the hassle the company would have to endure as well as the possibility of loosing the case. As they relayed to my union representative, they "do not wish to rehire me under any circumstances."  

I am very much looking forward to your response and thank you in advance for your continual support.

Albert.

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Followup To
Question -
Greetings.

I was fired on May 17th of this year for "violating the dress code" at my place of work", an office.

The specific violation was wearing of a baseball cap with a company logo on it, on April 21st, because it was very cold in the office on that day. I refused to remove the cap, because I was freezing. This eventually lead to my termination.

On June 30th, a grievance meeting was held between me, union representatives and my former employer.

Towards the end of the meeting the employer expressed to the lead union representative that they absolutely do not wish to rehire me, "under any circumstances". This was said to the representative without my presence and then relayed to me by the same representative.

My former employer asked the union representative to ask me if I would be willing to agree to being paid an additional amount of severance money and abandon further grievance actions.

I anticipate that my former employer will be offering less than the fair amount, in spite of my 15 years of employment with the company, and would like to know how much money would be reasonable for me to accept.

I also would like to know what terms would be reasonable. I suspect that the employer may ask that I agree to not talk to anyone about my termination, after accepting the settlement.

I would very much appreciate any insight and guidance you can provide on my situation.

Thank you for your assistance,

Albert.
Answer -
Thank you for your patience!

Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.

The case you describe here is far too typical and can be considered a "classic" workplace dispute presentation.  I am not a lawyer and cannot mediate this with you alone but I can respond to your question from my business consulting experience.

Note that this issue may have legal ramifications and you may wish to consult a labor attorney.

It may be useful for you to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems.  As you have experienced, there is a cost to exacting justice and the costs can be quite high.  Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.

It will be very difficult to recommend a dollar figure as I would have to know alot more about the landscape overall before I could give you an accurate idea.  However, here are some guidelines to check out.

The fact that you are being offered a severance package would suggest that there is a business calculation being made in your case.  In other words, the cost of settling with you is seen as cheaper than the cost of managing your complaints.  This could be because you have a strong case or because the company sees the payment to you as cheaper than the cost of lawyers, hassle etc.

What you must do is figure out--as best you can--how strong your leverage is.  If your case is very strong you will be in a better position to negotiate a generous settlement.  This is your only card so play it well.  Clearly there is no "fondness" for your case or element of compassion.  This is a business deal so don't rely on compassion.

The danger is that at some point people become entrenched and will dig in their heels.  You could put any offer of severance in jeopardy if you are not careful.

As far as terms, again these are hard to recommend ad hoc.  You want the best possible terms.  As far as a confidentiality clause, I would rather you be rich than right so if you get a generous settlement and you have a gag order attached--fine.   Be sure the company is clear that absent a fair settlement you will tell your story far and wide.  This may add to your overall leverage.  

As you can see this could become a real cat fight, take a
long time and cost alot of money.  You may be in the right, but you should count the cost to yourself in seeking justice.  It will be a tough road.

If the company is convinced that: 1) you are not going away; 2) you are going to raise hell and tell everyone; and 3) it will likely cost more money to deal with you than it would to settle with you; than they will make a business decision and take care of you.

These are some ideas.  Feel free to follow up with additional questions.

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

   Confidential, no public record
   Limited exchange of documentation, information
   Quick, don't have to wait for a court date
   Arbitrators have expertise in the subject matter and are trained in conflict resolution
   Cheaper than litigation
   Preserves business relationships

Negatives of Arbitration

   It's a compromise, no %100 winner
   Complex arbitration can be costly
   If not satisfied, may litigate the arbitration procedure
   Poor results with an unskilled arbitrator
   Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

   Neutral mediator can objectively suggest alternatives not considered before
   Parties are directly engaged in negotiating the settlement
   Can be quicker than litigation
   Less costly than litigation
   Preserves business relationships
   85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

   may not reach a binding decision
   unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

   a clear winner and loser
   uses a prescribed set of procedures
   more predictable outcomes
   is final

Negatives of Litigation:

   waiting for court dates can do more harm
   usually more expensive than mediation and arbitration
   part of the public record


Answer
Thank you for your question.

I am not acquainted with usual and customary practices in Canada, however arbitors' fees in the US range from $150 to $250 USD per hour.  A typical arbitration may take 3 to 6 hours and the costs are usually split between the parties.  Sometimes a "special master" is used as an arbitor who can cost more.  A special master, frequently used in technology, construction or medical disputes,has content expertise in the area of the dispute.  

As far as your claims, your best bet in an arbitration proceeding is to get evidence about the company's prior dealings if possible.  What you would like the proceeding to focus on is not the circumstances of your dismissal, but the company's fairness with you.  If at all possible you would like to be able to show that for other 15-year employees the company did X, Y and Z.  If you can show that the company was generous with others (and especially if you can show that the company was generous with habitual problem employees) then you can ask for a "fair" settlement (after all if Problem Joe got $10,000 than, YOU should be treated better, right?.

You can talk about your limited employment options after 15 years, etc, etc.  You get the idea.

An attorney would likely want to discover how the company has behaved in prior cases and would request these records.  You may have some limited discovery rights in arbitration in Canada, check it out.

You will want to show your record of performance as a model employee and you will want to cast the company as the aggressor here.  This sort of inquiry also lets the company know you have no problem digging around in their skeleton closet either, and this can be very distasteful to management.

Anyway, these are a few ideas.

Good Luck!