I often say that dismissals are like breakups and finding a job or hiring someone is like dating. Nothing illustrates this better than inducement.
When looking for inducement, courts essentially consider whether the discussions between an employer and a prospective employee go beyond normal “courtship”. This happens when an employer is so interested in an employee that it lures them away from secure employment, inducing them to leave their current employer for the suitor employer.
Employers who dismiss an induced employee are at risk of being saddled with an extended notice period, costing them a lot of money if the relationship does not work out. As I said, we know this story all too well: someone leaves their paramour for greener pastures, only for it to blow up in their face.
In Miller v. Alaya Care Inc., (“Miller”) the Court found inducement, as the employer’s courtship of the Plaintiff went beyond normal expressions of interest. This resulted in an employee with seven months of service being awarded 14 months of reasonable notice. She had previously worked at her other job for 12 years.
Courtship Criteria
The Court in Miller outlined the factors commonly assessed in inducement cases:
- the reasonable expectations of both parties;
- whether the employee sought out work with the prospective employer;
- whether there were assurances of long-term employment;
- whether the employee did due diligence before accepting the position by conducting their own inquiry into the company;
- whether the discussions between the employer and prospective employee amounted to more than the persuasion or the normal “courtship” that occurs between an employer and a prospective employee;
- the length of time the employee remained in the new position, the element of inducement tending to lessen with the longevity of the employment; and
- the age of the employee at termination and the length of employment with the previous employer.
The Court then applied the facts. It found that the employer reached out first, via LinkedIn with a message titled “Bold Moves?”. In this message, the employer stated that it believed the Plaintiff would be a great fit; it initiated the courtship.
Then, the employer made representations about long term development by expressing that she would assist in growing the company. The employer also inquired about her current compensation, including bonuses and stock, so that it could offer an attractive package.
Finally, the employer assured the Plaintiff that it would indemnify her if her previous company commenced litigation against her for joining the employer. These aggressive overtures went beyond normal courtship.
Consequently, the Court found that the employer made several inducements designed to lure the employee away from her then job and have her join its organization. This, plus her being 62 years old at the time of dismissal, and her being in the position of Vice President, warranted a longer notice period.
I Can’t Do It With a Broken Contract
Unlike love and war, not all is fair in the employment law world. Unfortunately, that means the saying “don’t blame me, love made me crazy” is not a defence against inducement. Thankfully, a strong termination clause can protect employers from paying the inducement premium if things with the coveted employee do not work out.
In Miller, the employer was not able to rely on the termination clause in the employment agreement because it was unenforceable. Had there been an enforceable clause, the Plaintiff would not have been entitled to 14 months of reasonable notice; she would have been limited to whatever the clause said.
Pith and Substance
As Miller illustrates, why go through the trouble and expense of getting your ideal candidate without being prepared in case it does not work out? If you’re an employer, we can draft strong employment agreements with enforceable termination clauses that allow you to recruit the candidates you want without worrying about the costs if they don’t turn out to be the fit you imagined.
If you’re an employee and are being courted, or were dismissed and think you were induced, we can help you determine whether there is inducement and advise you accordingly. After all, inducement at law recognizes that employees leaving secure employment are taking a risk. If the new job does not work out, you may be entitled to much more compensation than you think.
