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Do I Need to Call My Employment Lawyer?

Do I Need to Call My Employment Lawyer?

Swainson Miki Peskett LLP Partners, Jordan W. Smith, Ryan C. Kemp, and Graeme R. Swainson along with special guest Employment & Labour lawyer, Aly L. Fry, discuss employment & labour practice. Join us in a discussion about the practical realities of employment law.

SMP | A Legal Podcast is a business first legal podcast discussing trending legal topics with the occasional help of top industry professionals. SMP | A Legal Podcast is hosted by 3 of Swainson Miki Peskett LLP’s partners, Jordan W. Smith, Ryan C. Kemp, and Graeme R. Swainson.

Find new episodes of SMP | A Legal Podcast on Apple Podcasts and Spotify. Check out our previous episodes here.

Material in this podcast is available for information purposes only and is a high level summary of the subject matter. It is not, and is not intended to be, legal advice. You should first obtain professional legal advice prior to taking any action on the basis of any information contained in this podcast. This podcast is copyrighted. For permission to reproduce this podcast, please email Swainson Miki Peskett LLP.

Transcription


Graeme R. Swainson

“Welcome back to SMP A Legal Podcast. My name is Graeme Swainson. As always, I’m joined by Jordan Smith.”



Jordan W. Smith

“Hello.”



Graeme R. Swainson

“And Ryan Kemp.”



Ryan C. Kemp

“Hey Graeme.”



Graeme R. Swainson

“How are you guys doing?”



Jordan W. Smith

“Good, man.”



Ryan C. Kemp

“Good, good, good.”



Graeme R. Swainson

“Today, we’re joined by our special guest, Aly Fry.”



Aly L. Fry

“Howdy.”



Graeme R. Swainson

“So, Aly is a colleague of ours at the firm. She is going to talk a little bit about her practice today and we’re just going to kind of grill her. So, looking forward to this. Are you excited, Aly?”



Aly L. Fry

“Yeah, I can’t wait.”



Graeme R. Swainson

“Perfect.”



Ryan C. Kemp

“Much needed reprieve from the three of us droning on and on.”



Graeme R. Swainson

“Exactly. I think people are sick of listening to the three of us.”



Jordan W. Smith

“Don’t tune out. We have someone interesting here. Aly’s here”



Aly L. Fry

“I don’t know. I was telling my husband I was doing this and he said are you going to use it as like a fall asleep podcast? This is Cillian Murphy, and you’re riding a train.”



Graeme R. Swainson

“Sure, yeah, let’s try that. Uh, no. So very excited to have Aly on. Aly is a solicitor in our corporate commercial group. Also, helps run our employment practice here at the firm. Aly, tell us a little bit about your practice. Maybe tell us what you like about being a lawyer and then we can kind of get into the negatives after that.”



Aly L. Fry

“That’s a lot of information to cover. So, interrupt me because I will go on and on. I don’t think I’ve finished a sentence in like four years since having kids. Okay, so what was my practice area? Is that what you were asking? Well, I started out practicing really standard corporate commercial law and all the sexy nuances of that. So, commercial transactions and negotiating service agreements, stuff like that. Reorganization for tax reasons, for family planning reasons and had the opportunity to work with people at our firm who were willing to really mentor me in that area. I’m looking at you, Jordan, for a reason. You know, Jordan will know this, you’ll be able to test this, but corporate law is a beast. Like it takes a lot of years to get a full visual of, to the point where you can actually not just react to what’s in front of you, but kind have enough knowledge of the full scope to be able to see the maze from above.”



Graeme R. Swainson

“So to speak. So, I’ll interrupt you and say, so you obviously always wanted to do corporate law, that was your dream.”



Aly L. Fry

“Yeah, absolutely. No, no I didn’t. If you had asked me in law school what I want to practice, the last think I would’ve said was corporate law. I picked corporate law after articling because of the people really, it was more about like who I was going to work with.”



Aly L. Fry

“I know the people aside from Jordan, of course.”



Jordan W. Smith

“Yeah. His head was big already. Like, yeah.”



Aly L. Fry

“No, I mean, law is hard and it’s all hard, right? So, you have to work with people you like. I think first and foremost, and that’s kind of my philosophy in my entire life. You have to have clients that you like. You have to work. Human beings that you want to be around and everything else will flow from there. So, no, that’s why, that’s why I picked Corporate Law.”



Jordan W. Smith

“What would it have been like when you were in law school?”



Aly L. Fry

“I don’t really know. Like this is really going to typecast me. I don’t know if I should answer this, but like, I took a lot of environmental classes. I grew up in BC really into like being out in nature and hiking and doing all that stuff.”



Graeme R. Swainson

“So, you’re going to save the world?”



Aly L. Fry

“I was going to save the world. Yeah, for sure. And then I started one day at a time, one corporation at a time. One day. But actually, like, really, I think what I came to realize through practice is that really the only thing you can impact in your life is the humans that you interact with. And like being a good, authentic person and giving good advice and all that stuff. And that’s where I get my, that’s what feeds me now.”



Graeme R. Swainson

“Sorry, I was going to say, all jokes aside. That is kind of what I think Jordan and I were getting at, is that I think we all are in law school and we all have these aspirations that yeah, we’re going to go out and save the world. And then you get into practice and you realize. The biggest way to make a difference is to influence people and what better way to influence people than to advise them on their day-to-day business decisions?”



Ryan C. Kemp

“I was just going to say, I mean, I think it’s an invaluable piece of insight for students that are going through their article in years to really have an open mind because, you know, so often students that have a really strong inclination to go one area or another, but like, it really, you’re doing yourself a disservice so you don’t have an open mind and try and cast the net wide as possible because the area that you end up taking a shine to may be something totally off radar.”



Aly L. Fry

“A hundred percent. I think like the joy and the practice of law comes with actually knowing the law, right? Like, the more you understand it, the more you can. Give good advice. That’s for like long term and strategic planning and that’s what’s really interesting about it. It’s when you finally get to the point of having enough knowledge about it to have it like aha, I can see it all. Do you know those magic eye pick books we have? Where you have to go cross eye. Like squint one eye and look at then all of a sudden like a killer whale appears. That’s like corporate. It takes a long time to be able to see what’s actually, what the landscape actually is. And when you, when you do and when you get there, it’s an addictive feeling.”



Graeme R. Swainson

“I’m stealing that analogy. You guys know me. I’m a big analogy guy. So, yeah, being not even a sports analogy. No, but anything game. I mean, a hundred percent. So you went through your articles, you fell in love with corporate law and working for great people like Jordan Smith here. So, what does your practice kind of look like today? What does your day-to-day look like?”



Aly L. Fry

“Yeah, I mean it, it’s broadened a bit, because like, I’m a nerd, you guys know I’m such a nerd. I just always want to be like learning something or I’m not stimulated enough to be happy. Like, I don’t know if you can psychoanalyze that, but when I got to the point where I could finally like see the picture of corporate law, I thought, okay, well what could I add to that so I could give more like of that strategic planning advice. So you know, I did the trading trademark exam, got some intellectual property experience and knowledge, which allows me to advise in more of the tech space like, agreements and stuff like that. But what really is, what excites me now and is kind of becoming more and more my bread and butter and the thing on my desk all the time is the employment side of stuff. So, I’ve been doing a lot of employment work and people management in the business context is massively important. Obviously, it’s one of the biggest resources or liabilities a business has.”



Graeme R. Swainson

“Yeah. Well, I imagine adding employment as a practice area, it just supplements what you’re already doing, right? You’re advising businesses on how to run their day-to-day, and in addition to now advising them on their organizational structure and their processes, you’re now also able to provide advice on employment stuff, which is great.”



Aly L. Fry

“Yeah. I think like people, it’s a huge thing for any business.”



Ryan C. Kemp

“So, if I understand correctly, you started to be able to piece together, figure out the magic eye and they you’re like, okay, now I’m going to go to Where’s Waldo. Like, you’re going to tackle more puzzles. I mean, you know what? Good on you. Like what a unique, what a skillset that you’re developing for yourself. It’s not really a whole other area though, because it’s so, they’re so informed by each other, right?”



Aly L. Fry

“It’s interesting because so many people come to employment from the litigation bar, right? They start like doing general civil lit and then narrow into employment. Whereas my lens through which I view all of it is corporate commercial. And it’s totally different. It changes. The law is the same, but the skillset you develop and the strategies for advice are different. And yeah, it’s been really interesting to kind of see how that all falls out and given that we work for a lot of business clients, it’s been a really, there’s been a lot of synergies between the two practices more than I would’ve anticipated at the outset, I’d say.”



Jordan W. Smith

“Do you find like when you’re balancing the file work you have and I know cause of course you and I work together on lots of stuff. You know, you’re balancing the deadlines and the pressures on the corporate side and on the employment side. I mean, both of them can have pretty tight timelines at times. Not on the corporate side. Not always. It depends. There’s some longer planning kind of exercises, but, and about the reason I’m asking is I just don’t know on the employment side, I’ve conceived of it as often things come up and they just really need to get done. But there’s probably lots, maybe it isn’t that way. But how, how is that balanced in your practice?”



Aly L. Fry

“It’s like everything’s on fire and you’re..No, I mean, it depends on your client really. Like, a lot of employment is reactive and that would be one of the things that I wish we could get away from. Because I don’t think it’s necessary that it be that way, you know, you have corporate work that’s like project based and there could be tight timelines in terms of getting it done by a certain date for a tax reason or et cetera. But their reactive employment issues are like, okay go. I need to know what to do by tomorrow because I have to fire this person, or so-and-so showed up drunk and what do I do next? But yeah, there’s a lot, a lot going on at once.”



Ryan C. Kemp

“So, if you are trying to steer a client from the more, you know, the reactive or the response side of things to the proactive, what is the proactive piece? Is it really policy based? Like what does that, what would that entail?”



Aly L. Fry

“Well, the legal answer, everybody loves it depends. It depends. But I would say like coming from a corporate background into an employment practice what I realized is employment is more proactive. Like any other area of life I’ve ever practiced before, and it’s an area where employers don’t see it that way. They tend to react, right? So like when you’re approaching your business and you have all these line items you’re dealing with, you have an employment cost, right? The thing you don’t necessarily want to add that, the inception of starting up a business is additional cost for a lawyer, right? And you don’t necessarily have the visibility of the cost savings that engaging, that person right there at that point will have for you over the span of your organizational life span. But it is massive. And the thing about being a corporate solicitor that I realize is it’s so much easier, nicer to have your bills paid in a positive moment in time with your client. Right? If you do a tax reorg, you get paid on their tax savings, right? Yeah, and that’s so much better because everybody benefits really, it’s a relationship business. So like, I like you and you like me because everybody’s happy. Employment could be like that and should be like that. But that’s not how it operates in reality so often.”



Ryan C. Kemp

“That’s really interesting because I mean that’s something that I think our practices, Graeme, like we’re constantly trying to get clients to bring us in as early in the process as possible. Yeah, and it comes across as self-serving, I think, when the client hears that. But it’s, you realize if you invest on the advice on the front end, invariably you are going to save on the back end.”


Graeme R. Swainson

“Well, that’s exactly like when Aly was saying that, I was thinking the exact same thing. And I think we’ve said this on like a previous episode where it’s so much easier when the client comes to you and says, I’m thinking about doing this, as opposed to, I’ve done this. Yeah, I’ve done this, please help. Right? What do I, and that’s literally exactly what this sounds like, where it’s the employee, employer coming to you and saying all this stuff has happened and we’ve going to have to fire this person, or what have you. And we don’t have a policy in place for what happens when this occurs. Like, is that what I’m understanding when you’re talking about like being proactive versus reactive? Where it would be nice if you’re proactive with the employment stuff and you have more policies in place and you think about having more foresight and thinking what are we going to do if an employee does X again versus coming to you and saying employee just did X. What do we do?”



Aly L. Fry

“Yeah. You know what? In employment it’s actually a lot more tangible that that, though. And like, can I give you a history lesson? Will you all walk away and turn us off?”



Graeme R. Swainson

“Okay, so for context, Aly has an African history undergrad degree.”



Aly L. Fry

“I’m a nerd, but really I think it’s important to understand like, so employment law is master servant law. Like if you go not that far back, that’s the language used. And it’s because it developed at a time where you had like a very narrow master group that was served by a giant servant group and there was a lot of ability to abuse that workforce, because there’s always somebody else who was so poor they couldn’t afford bread, right? And so the law developed so that from a government policy perspective, you know, we developed as a society to say we need a social safety net. We can’t let people just like die in the street. I mean, probably a good thing, right? But the way that the law developed was really for the government to recognize we can’t shoulder the burden of paying people just because an employer wants to fire them for no reason. So how the law kind of rectified that giant cost on the government was to say your employer has to actually pay if you fire somebody for a certain period of time, depending on their age, depending on your industry, depending on the length of time it will take them to be employed somewhere else and so that’s why the common law developed to be super employee friendly. I know I can see you guys are like, stop talking about history. Hey, but it’s important. I’m getting somewhere with this. So, then correspond to that, the government said, well, we can’t totally put everything on industry to the point where they can’t even operate. There’s minimum requirements that you can rely on as long as the employee agrees at the beginning of the relationship. So, here’s the point, an employer has the ability to greatly limit the cost associated with their employment force, but they have to do it properly. And if they don’t, then they’re out there in the common law and subject to precedent. Adherence to this common law obligation to pay severance. This is just like the severance example, right? There’s also a vacation example and blah, blah, blah. But, you have to pay basically a social tax because we don’t let each other treat one another terrible. So, that backdrop is super, super interesting.”



Ryan C. Kemp

“I think, especially right now because regardless of what industry you’re in right now, it’s a super tight labour market. I think employers are bemoaning the fact that the pendulum, if you want to call it that in the exact, you know, historically, how that favoured the employers and the employees. Now, bemoaning the fact that the pendulum has swung quite a bit into the employee’s favour like do you see incidents of that? Do you see clients coming to you with those types of concerns or trying to frame it in that way?”



Aly L. Fry

“Well, yeah, I think the reason is that if you Google it what do I have to pay an employee if I fire them? What comes up is the employment science code minimum. They don’t realize until there’s a wrongful termination action. What do you mean? I can’t rely on that? It’s the minimum. It’s in the code. Well, no, that’s the minimum that you can contract into with them. They have to give up their right to additional common law, severance at the beginning of the relationship in exchange for getting a job with you. But if you don’t put that in the contract, you don’t have that limited liability. So, yeah, I think a lot of employers I talk to go like, what do you mean I have this giant cost? What does the law favour employees? The reality is, if you’re preemptive about it, if you understand that you actually have the ability to kind of impose that contractual obligation that they give up, that extensive right to additional severance. You can preempt that big cost on the back end, but it’s about being proactive and realizing that it will pay for itself.”



Graeme R. Swainson

“Right, so again, this is, we have talked about this so much as far as all of this stuff that people don’t really know about because they never think about it and, again, it’s one of those uncomfortable things to think about where, again, what’s going to happen if I’m going to have to terminate and employee or lay people off or what have you. If you’re proactive about it, you can save money down the line and it’s worth seeking that advice kind of at the forefront. Right?”



Jordan W. Smith

“Yeah, I was just going to say too. I think it’s fair to say, Aly, that it depends on the type of client you’re working for and the life cycle of their business. But, you know, I think it can happen and it’s very similar to corporate in this way, where at the beginning there might be this idea that me and my brother and my best friend or couple or shareholders, whatever it is.. We don’t need a USA because its just us. Plus we’re starting out and everything’s lean, which I understand. And then the business, in some cases, not always of course, but hopefully grows and does really well, and maybe the shareholding group changes, the dynamics different and when things are going well and you’re just busy making money, and you’re frankly just busy on the hamster wheel of running a business often, and then things aren’t going well, and all of a sudden you’ve got a problem. And then maybe you have a really big, to that point in the analogy and help me out if I’m right and I hope I didn’t have a big lead up and you’re just going to say no. But I think it’s similar though in a sense where employers might not appreciate all the obligation that they do have to employees. And they might be starting with kind of a thin employment group, and it might just be them as an employee, frankly, they just start with the truck or whatever it might be. But the reality is there’s potentially other obligations whether there’s occupational health safety, or even you don’t know what your employees are always doing in the field or in the office or in the warehouse. You just don’t. And os there might be things that are happening that an employer’s not aware of, and it might surprise them that, I didn’t think, you know, we behaved this way, the business did but it didn’t – is that fair to say?”



Aly L. Fry

“Yeah. I think one thing that I’ve come to realize doing general business advising in the corporate side of my practice getting the exposure to the employee side as well. Is that the difference between say, do we need a USA at the beginning of a relationship or whatever, is that you will have issues with your employees. That is basically a certainty. So, not only yes, that parallel is very apt, but also it’s emphasized in the employment side, because it is a matter of time. But I think this is one of the challenges we face with law generally, right? It’s that like there’s a bunch of dead lawyer jokes for a reason. Like we’ve like earned that reputation as a profession. And one of the reasons is we’re seen as kind of like vampiric, like vultures that pick over the bones of our clients and try and suck every penny out that we can get. And a lot of that was built into the traditional model of you. The business model of a law firm. And you don’t see the same question happening if you go see your physiotherapist, not wondering like, are they getting me to do these exercises so that I will like continue to have to see them for 10 years?”



Graeme R. Swainson

“I mean, I do. Question everything. My shoulder still hurts”



Aly L. Fry

“No, absolutely no. But I think that’s what, if I was a business owner, if I was starting a business, every time I engaged a professional, I’d be asking what’s in it for them? Right? And wondering about what the business model of the person I was engaged with was, what their profit margin was going to be in giving me this advice. And you have to question that, but I mean, this is like a, what’s great about Swainson Miki Peskett, but it’s true, is that we were talking about his on a file earlier. It’s that we have like an actual team approach to client management here. Instead of our business model like it being baked into how we actually get our bills paid, instead of being about sucking the blood of the people we work for. It’s like if I give you good advice about say something preemptive you could do with your employment, it probably means I’m not going to make as much money off of that client. When something goes wrong, we have to react and I file same claim, et cetera, they’ll group, prosper, then they need a lease. And then you come in, they need, they need a tax reorg and then you come in. So, it’s like a different mindset here in that we all actually prosper. That’s like baked into the structure of our compensation. That’s what’s in it for us, is the prosperity of our clients. So, we’re like the physiotherapists of the legal world.”



Graeme R. Swainson

“Yeah. And I think that’s stuff we’ve talked about before, that the idea is that we’re providing value and legal fees that are charged are commensurate with the value that’s added from the legal services on that particular file. So, I guess on that note, let’s get a little bit of a round table going here, but like, I think one misconception that you find your clients have, that you’re constantly having to correct. What’s something that you’re constantly having to tell your clients over and over. That maybe again, is just something that they need a little bit of training on or what have you. Again, an example I have, again, we’ve talked about this before, this kind of goes back to what we were talking about before, call me before you do something, not after. And that’s the misconception is that if I engage a lawyer early, and this is kind of what we’ve talked about before, it’s going to cost me. Oh, no. Again, it’ll actually probably end up costing you less because hopefully we’re able to provide advice, that’s providing value and saving money. So, I’ll open it up like to any of you, what’s something that, again, you’re constantly having to kind of, uh, correct your clients on? What’s something that people have wrong about the practice of law?”



Ryan C. Kemp

“I was going to say I’ve got one that comes to mind. And it’s not specific by any means to my practice area, I don’t think. But certainly, a misconception that I run into all the time is that this goes right to the vampire analogy that you made. I get paid. I’m billing on an hourly basis on all files and that’s the only way that we can bill files. And when that conversation with a client that, Hey, if I have a rough idea of what the deal parameters are at the outset, like I can flat bill it, I can give you an estimate, and I know that absent something totally out of the box that I’m going to be in and around there, and that has been pretty eye-opening to see. The response that that gets and how surprised, because again, it’s just seemingly universally understood in the market there that all hours, or sorry, all lawyers bill by the hour, full stop. So that’s probably the biggest one that comes to mind.”



Jordan W. Smith

“That’s interesting. Yeah, no, that’s a good point. I don’t know if I”m pulling a Justin Trudeau in answering my own question. Not really answering your question, Graeme, but what I’ll say is that I think that for me the most enjoyable work I do is the strategic business advice piece. Aly, you alluded to it earlier and in order to do that, I think a client has to be willing because the investment goes both ways. There’s an investment in our partners’ investment on the client’s part and what I would say is, in order for, both of us to get the most out of the relationship. We both obviously need to be willing to do that. And in order to do that, I think a client has to at some point make a choice. It’s not saying that all the work has to go to one from all the time. I understand there are reasons, totally understandable, that there are other relationships they might have. You have to engage your relationship manager is a lawyer that has that visibility of your business. They have to have visibility of your business, has to have visibility of the outcomes you desire, has to have visibility of the life-cycle, what’s going on. Again, that’s an investment of both sides. So what I would say is, I’ll share this quite candidly with clients I work with, is that’s what is the most enjoyable aspect of my job. And when I have clients who want to do that with me, and in a sense it is, kind of a partnership, a strategic partnership, in doing this type of stuff. Ryan, when you have that kind of relationship, you do get phone calls, you go for lunches and whatever. You’re not billing all the time, you’re talking about these things clearly. But those clients and to the issue of value, most clients get so much more value for the work that we do. So much more value. Because I understand, you know, the point, I know what their business does. Maybe I’ve been on-site, I always like to do that. Not just on-site once. Not to say I’m not going to drive away every week and sit in their coffee room, I try, but they always tell me to leave. But you know, you have na understanding of what’s going on and then as they’re expanding or as different stages of their business as that happens, it’s very proactive because sometimes I’ll reach out and say, you know, I saw that in your industry and what is going on with you and we have conversations. At the end of the day, that’s part of the value add that you get. You know, that’s what I wish I could do even more often than I do. And I have it, but I would like it even more.”



Graeme R. Swainson

“Oh, you have anything, Aly?”



Aly L. Fry

“Um, what was the question again? I got so caught up in Jordan’s answer, it was a great answer.”



Graeme R. Swainson

“I like to, do you want to have coffee in the lunchroom every day? What’s there? What’s something that you’re constantly having to. you know, what do clients have wrong? About your practice or about legal practice in general?”



Ryan C. Kemp

“You want to give another answer?”



Jordan W. Smith

“Did I answer?”



Aly L. Fry

“No, it’s a great answer. I think with employment specifically, it’s when does this become an issue I should speak to legal about, right? And it’s yes it’s when you get a claim or a demand letter saying you’ve wrongfully terminated somebody and you have a human rights action. But it’s actually like way before that for cost savings. I mean, we’ve kind of been over it, no, I mean to Jordan’s point, the more you have that kind of connection and contact with your client. The more you understand about their business, the regulatory parameters, they act within their succession plan, you know, the shareholder involvement, the desire to loop in key employees, et cetera. The more valuable, tailored advice you can give and tailoring advice is really like what’s valuable.”