Kelly was admitted to the New Brunswick Bar in 1993 and has practiced extensively in the field of civil litigation, focusing primarily on labour, employment law and human rights. He became a partner at Lawson Creamer in 1996. In recognition of his extensive accomplishments and contributions, Kelly was given the designation of Queen’s Counsel in 2015.
Kelly is committed to life long learning. He holds the following degrees/certifications: BA (UPEI), Bachelor of Law (UNB), Master of Laws (University of Huddersfield), PhD in Employment Law (Nottingham Trent University), and Chartered Arbitrator (ADR Canada).
Kelly teaches a variety of continuing education classes for the Law Society, the Canadian Bar Association and at UNB Law School. He writes articles on a variety of legal topics, is a regular legal columnist on CBC Radio’s Business Network and he recently authored a book entitled ‘Why Employees Sue’.
Our conversation began with me asking Kelly about employment law and the importance of business owners understanding it…
A: I think most business owners will have familiarity with the concept of employing workers to perform services. So for centuries really, the law has evolved around how those workers should be treated and how they can be treated fairly or in accordance with the expectations of society.
Q: What have you noticed has changed in the field of employment law?
A: It has evolved in complexity from the early ‘90s to today, partly because societal expectations have increased – at least in Canada – in terms of what’s fair within the relationship between the employer and the employee.
Our expectations around human rights, and how employers treat people with differentiations, have increased. On top of that, I think that some of the subjects that impact employers today were not even spoken of significantly in the past.
Q: Can you give me an example?
A: Today, marijuana use is a hot topic with the pending legalization of marijuana. The question is how will it impact employers? How does an employer deal with the possibility that an employee is using marijuana or could be under the influence of marijuana to some degree in the workplace?
Q: You’ve taken real interest in this issue and done some research – what have you learned?
A: Earlier this year, in fact, Thomson Reuters published a book that I wrote called “Why Employees Sue” – it was the product of a lot of research that I did to better understand what was motivating employees to start legal actions against their employers. In my 24 years doing work in this field, I have seen hundreds of legal actions by employees against employers.
It’s been fascinating to try to better understand what the motives are and why people are willing to pursue legal claims that are dependent on a process that can be very frustrating, costly and time consuming.
Q: A process that is costly and time consuming for the employee?
A: For the employee and for the employer – why do the two different parties subject themselves to this? Why is it that there are times where neither side can see their way to a resolution that is more sensible? These questions led me to research this area.
Q: Who will get the most out of reading your book?
A: People who are interested in the relationships that exist between employers and employees will find this book helpful.
I think in the profession of law, we should be not only explaining how the law exists today but we should at least attempt to find better solutions for the public so that they can get resolutions that are faster and less expensive.
Q: People may find it surprising for a lawyer to say that.
A: Right. Well, when I did the research for the book, I had a number of people in the world of workplace dispute resolution ask me if I was seriously going to investigate that question because their experience, apparently, had been with lawyers who would not want to find a solution.
Q: What is a key message in your book?
A: Many employees don’t take legal actions for the reasons that their employers believe they are taking legal action. This aligns, by the way, with the findings of researchers in the United States, who have done similar studies.
There continues to be this disconnection between what employers think these lawsuits are all about and what employees believe the lawsuits are about. There is the opportunity to understand why people might be suing their employer and then also to understand what solutions might exist that will satisfy both parties in a more expedient and efficient way.
Q: Is there currently something that is not understood about the legal process or system?
A: It depends. In New Brunswick, and in Canada generally, we have a disjointed employment law system because many different types of disputes are housed within their own legal framework.
The same is true with workers compensation claims or wrongful dismissal claims or employment standards claims. You could conceive a scenario where, easily, an employee could make four, or five, or six different legal claims arising out of one alleged wrongdoing at his or her workplace.
Some of those processes have mediation mechanisms built into them and some of them don’t. So some employees are introduced to the concept of mediation through a legal process. Some employers aren’t introduced to that concept until they get very near the courthouse steps and then the subject of settlement is brought up in a more structured manner. But by then, it’s possible that both parties have spent a lot of money and they’ve incurred a lot of emotional damage.
Q: How can employers be more proactive in settling potential disputes?
A: One of things that I did in order to better equip myself to advise clients was to look at dispute resolution mechanisms that are used in the US and in the UK. They use different approaches than we do.
I think it’s true that if you move mediation type processes to the front of a dispute rather than at the tail end, it gives the parties a better opportunity to work on solutions that are going to actually resolve the problem.
Q: How important is it for an employer to work on having constructive relationships with their employees?
A: I think people would be surprised by the impact that problems at work have on an individual employee’s psyche or their mental health.
We have to keep reminding ourselves that most of the world is heavily dependent on these employment relationships – and when those relationships are threatened then the dependency is magnified and there certainly is research to suggest that that impacts many employees in a very significant, personal way.
Q: How so?
A: Depression, sleeplessness, a whole host of medical issues. It was shocking to me that a very high percentage of employees described being impacted significantly enough that they went to their doctor and that their family members noticed the changes in them as a consequence of these work problems.
Q: What motivates you to continually invest in research and education?
A: When you’re practicing law the biggest concern is always to know more and to be more prepared to help people because the problems are significant – the complexity of these problems is increasing and not decreasing.
It’s been important to challenge myself with as much learning as I can get and that’s been in the form of some postgraduate studies for a master’s degree and then a PhD. I have also worked at the University of New Brunswick and done research with researchers from other disciplines so that I can, at least, make an effort to understand what’s at the heart of these disputes and how – as a lawyer -I can guide companies and individuals in the best possible way.
It’s a commitment that we have to make as lawyers to ensure that the public is getting the right kind of advice.
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This article published in the Telegraph-Journal on Saturday, June 24, 2017.