Employers are best served when they are able to manage and resolve their labour and employment issues internally and for themselves.
That said, many labour and employment disputes require outside help and, from experience, where that advice and guidance is sought early, rather than “after the fact”, the issues can be strategically discussed and a path forward developed to achieve an acceptable outcome in a timely and cost-effective way.
My clients have heard me say that “law is not so much about law as it is about developing legal principles in response to the stories that the employer and employee have written”. All cases, and the legal principles that come out of them, are arrived at in the context of the facts that the parties (employer, employee and union if there is one) have created through their conduct and decisions. I call these “stories” and these inform, directly, the result whether it be in settlement discussions or litigation. The stories determine who has leverage and a successful outcome is , largely, determined by leverage.
The good news is that, in most cases, the employer is the “author” and the employee is a “character” – the employer, in most cases, writes the story and by doing so “creates” the optics.
Increasingly, optics determine the result or outcome. Getting in front of issues and managing the risk is my preferred approach.
Where, at the end of the story, the employer is shown to have been fair, reasonable, balanced, sensitive to the issues and the employee, patient, and open minded, then the inclination of most fair-minded people would lean towards “helping” the employer and trying to reach a decision in the employers’ favour.
Although, philosophically, I believe workplace issues are best settled and worked out by the employer and employee directly, I also know that writing the story requires early guidance and that is the best time to call the lawyer.
Where the “horse is out of the barn” or the story already written, the facts cannot be changed. They are set, cannot be re-written and will be the basis upon which any negotiation or litigation takes place. In those cases, we take the facts as we find them and, in collaboration, develop a practical strategy designed to contain costs and achieve an acceptable outcome.