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Employment Contracts Articles
A recipe for severance - Courts will consider a variety of factors
Seldom is severance pay based on arithmetic. Courts do not follow any defined rules in calculating how much severance to pay to a particular employee. Neither does your ex-employer. Rather, a judge’s task is to consider all of the circumstances that either hinder or help a dismissed employee to find a new job. I am familiar with over 100 factors relevant to this determination. However, rarely will that many issues compete in any one case. More typically, there are four or five factors that are always more often considered than others...[read more]
Anything goes in employment contracts
Unfortunately for employees, the law provides few safeguards regarding what can and cannot be agreed to as a term of employment. As well, with the recent shift downwards in unemployment rates, employers have had to adapt, minimizing the risks of hiring transitory employees by proposing contracts loaded with language to protect them at every opportunity. Employees should beware of the following six most dangerous terms, now appearing in more employment contracts – and court dockets...[read more]
Anything goes in employment contracts
Canadian employers often protest that workplace laws favour their employees. My view is otherwise. A well drafted employment agreement can provide an employer with the device to defeat most claims. And, as most employees lack the bargaining leverage or sophistication to renegotiate unfavourable contractual language – by signing these agreements they face an uphill battle should confrontation ensue. But despite an employer’s ability to bulletproof its liability, not all written promises will ultimately be enforced. ...[read more]
Anything goes in employment contracts - Beware of dangerous terms
When it comes to employment contracts, all is fair in love and war, as pretty much anything can be incorporated into the deal. Employees should, therefore, beware of the following terms....[read more]
Avoid paying severance to ill employees and pay the price
Seldom will a temporary illness justify dismissal. But what happens when a sick employee may never return? Can employers discard employees they view as festering on their disability insurance or must they keep their jobs available for an indefinite period of time? According to a recent Alberta case, employers must tread carefully with injured employees or pay the price of their severance. ...[read more]
Be careful when working for a competitor
Nothing infuriates a company more than news of an ex-employee soliciting away its most prized assets: the clients. But clients, much like those employees, are not sedentary. Seldom are they attracted to one company or another exclusively by virtue of the services they are offered. Rather, their loyalty often lies with the relationships that are built and the key employees who have built them. ...[read more]
Beware of employment contracts
It’s possibly the worst fraud in workplace law – corporations, with expensive lawyers and deeper pockets, insisting that employees sign one-sided contracts that reduce their legal rights. And employees, without bargaining power or an understanding of the law, not realizing their interests have been undermined....[read more]
Blog postings can be cause for dismissal
Employees who believe that their conduct away from the office is immune from discipline are mistaken. Where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk....[read more]
Commit business agreements to writing
If you want to ensure that a contract will be enforced later on, commit the terms to writing and give each side an opportunity to review that language before finalizing the deal. ...[read more]
Constructive Dismissal Proves Costly
Sometimes, serious changes to your job may have to be accepted. Just ask David Chapman. Working his way up the Bank of Nova Scotia’s corporate ladder for 36 years, Chapman resigned claiming a reduction in his salary and the Bank’s failure to honour a promise amounted to his termination. The Court decided otherwise. ...[read more]
Contractors
It's workplace law's newest phenomenon: employers, happy to unburden themselves from the various costs and liabilities associated with their employees, increasingly retaining "contractors" to perform the same services their employees did before. Often their former employees are transformed into contractors and these "contractors", content to pay less taxes than they did when employees, are not about to complain. However, this arrangement is often a fraud. ...[read more]
Contracts at the workplace
Do contracts really matter or are they irrelevant? In the often confusing world of workplace law, why are some agreements upheld, when many others are simply overlooked? The answer depends on the purpose that the contract is meant to serve. ...[read more]
Court rules in favour of employee induced to leave her job
- Promises of "dream team" lead to additional damages
Routine may be agreeable – but think twice before trading routine for the temptation of change. A “lifer” of the auto sales industry, after working at a series of dealerships, fifty-seven year old Janet Deplance had finally found her home. For ten years, Deplance prospered as a business manager for Gemini Ford in Hamilton, Ontario, believing it would be her last stop until she retired....[read more]
Court’s judgment a sign of the times
Employers cannot adapt to new economic constraints at the expense of fundamental employee rights....[read more]
Do's and Don'ts of Workplace Law
Employees are often the authors of their own misfortunes at work. Few take advantage of laws that are construed in their favour. Fewer will challenge their employer's decisions, however unjust. Most will just complain. But - if you have an inclination to fight back, here are some do's and don'ts.
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Drafting employment contracts
Employers often take a kitchen sink approach to drafting employment contracts. They bargain for excessive protection, no matter how junior or administrative the employee. However, in seeking such protection, they sometimes get none at all. ...[read more]
Employees must read the fine print
It’s possibly the worst fraud in workplace law – Corporations, with expensive lawyers and deeper pockets, convincing employees to sign one-sided contracts that reduce their legal rights. And employees, without bargaining power or an understanding of the law, not realizing their interests have been undermined....[read more]
Employees should think twice
Here are the top five mistakes employees can make at work....[read more]
Employers Should Review Contractual Hiring Practices
In today’s competitive marketplace, any advantage is a disadvantage to your opponent. Armed with the knowledge that an employer can contract out of all but its minimum statutory obligations, I’m mystified why more businesses don’t follow the trend. Nevertheless, for those proactive organizations concerned about the bottom line, the key is to draft contractual provisions that will withstand judicial scrutiny. ...[read more]
Employment contract may cause later problem
Recently, I was consulted by an employee who was terminated after 10 years of faithful service. Given her tenure and responsibilities, she would have been entitled to a substantial termination package, but she had signed an employment contract that limited her termination payments to a much smaller amount....[read more]
Employment contracts
On Krzysztof Rejdak's first day of work, he found himself in a pickle. He was given an employment contract with a three-month probationary term and asked to sign his name. For Rejdak, who had already resigned from his previous long-term job, his options were grim: he could either sign his name and agree to be a probationary employee or he could refuse and potentially be unemployed. Fortunately for Rejdak, he later learned in court that not all signed agreements will ultimately be enforced. ...[read more]
Employment Contracts
It's possibly the biggest mistake an employee can make: requesting a written employment contract or worse, agreeing to one without understanding its terms. ...[read more]
Employment contracts are negotiable
Employees routinely sign contracts replete with unfavourable terms: contracts can give employers the right to eliminate employees with minimum notice, banish them to far away jurisdictions, slash salaries or demote – with impunity, prevent competition following their departure, and break promises or representations at their pleasure. ...[read more]
Employment contracts are negotiable – courts will imply terms
Employees routinely sign contracts replete with unfavourable terms: contracts can give employers the right to eliminate employees with minimum notice, banish them to far away jurisdictions, slash salaries or demote – with impunity, prevent competition following their departure, and break promises or representations at their pleasure. ...[read more]
Employment Contracts Should be Reviewed
It never ceases to amaze me how just a little bit of foresight can go a very long way. Employees often bemoan the fact that they have little understanding of the employment contracts they are asked to sign. Such contracts are usually inundated with legal phraseology. But entice a soon-to-be employee with prospects of job security and many people will just sign their name unaware of the consequences that may arise down the road. ...[read more]
Employment Law Basics
The five most frequent files appearing on my desk – and in court dockets....[read more]
Employment Law Basics
Employment Law Basics: This is as true in law as it is in life. Here is a sampling of some of the questions I received this week and the cautionary advice I provided to those employees....[read more]
Failure to Mitigate defeats employee’s winning claim
How do you beat your ex-employer in court but ultimately collect little or no damages? Just ask Leo Magnan. He succeeded in proving that he was wrongfully dismissed but failed to collect the true value of his claim. His mistake: Magnan couldn’t demonstrate that his dismissal caused him a financial loss. ...[read more]
Frustration of contract not easily proven
Can an injured employee languishing on medical leave simply be discarded by his employer? According to a recent British Columbia case, absolutely not! When Kashmir Sandhu took time off work to recover from a car accident, he expected to return to his job when his injuries healed. But the problem for Sandhu’s employer, Delta, B.C.-based North Star Mills Ltd., wasn’t allowing Sandhu an extended absence from work – it was whether it would permit him to return. ...[read more]
Have you been wrongfully dismissed?
Here are seven questions to ask yourself if you’ve recently been dismissed....[read more]
If terminating an employee, don’t pay without a release
If you’re an employer, one of your best defences to prohibit further legal action from a dismissed, and typically aggrieved employee, is a valid release. Therefore, if any doubt exists, a dismissed employee should not execute — and an employer should not pay — until both parties are satisfied a mutual agreement has been reached and is reflected in the content of the release. ...[read more]
Journalist's revenge costs job, reputation
His work and ethics criticized, a British Columbia CBC journalist decided to take the law into his own hands. He attempted to poison his adversary by contaminating a box of chocolates he then sent to the critic as a gift. But when his scheme backfired, the reporter lost more than his chance at revenge. He had tainted his reputation and his career....[read more]
Labelling employees as contractors doesn't necessarily make it so
Customs used to define Canadian employment law – not contracts. When there was a workplace dispute, judges would decide cases based on what was reasonable or just or what the parties would have agreed to if they had thought about the issue from the outset. Customs, however, have been replaced by comprehensive employment contracts and lawsuits for wrongful dismissal. Now, instead of being asked to consider what’s most reasonable or fair, judges are asked whether a contract applies and, if so, what its terms represent. But what happens when a contract doesn’t accurately portray the true nature of an employee’s job? As La-Z-Boy Canada Ltd. recently learned, sometimes employees are not bound by the agreements they have agreed to....[read more]
Lying on your resume could cost your job
Imagine this scenario: You have landed the job of your dreams. Six months later, you get an email, summoning you to the manager’s office. Confused, you make your way to her office. You are joined by the human resources manager, who tells you that the company has discovered that you were dishonest on your resume, and as a result, you’re being fired. Studies reveal that resume falsification is a common event. Statistics suggest that as many as 50 percent of all resumes contain some degree of distortion - from white lies to outright whoppers....[read more]
Make sure to read the fine print
In speaking recently to a forum of job seekers, I was asked what tops my list of “don’t” when it comes to receiving proper severance. Although, at first, it seemed obvious to me, I quickly realized that it was oblivious to others. Quite simply, too many employees make the strategic blunder of immediately signing a release without having first consulted with a lawyer. In fact, whether or not a release has been signed, is one of the first questions I ask when meeting with any potential new client. ...[read more]
Matter of "just cause"
Too often employees fail to pick their battles. Just ask Gary Gordon. By refusing to take on additional responsibilities, he lost his job - and recently, he lost his case against his ex-employer.
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No more bad faith? SCC ruling catastrophic for employees
It is one of the most important concepts in workplace law – or at least it was. Since 1997, When the Supreme Court presented Canadian workplaces with the Wallace decision, employers have had an obligation to play nice and behave well at the time of dismissal, or face paying additional “bad faith” damages to a former employee. But following the Court’s most recent landmark decision, employers now go from strength to strength. ...[read more]
Performance Appraisals can cut both ways
Dismissing an underperformer is not an easy task! Court cases clearly state that employers owe a duty to provide employees with the opportunity and means required to improve underperformance, if dismissing them on those grounds. Judges require that employers prove an employee was grossly incompetent, and that progressive warnings were issued, clearly identifying areas of concern....[read more]
Perils of Fixed term contracts
For many employees, the perils of fixed term employment contracts are clear and unambiguous. Unfortunately for Frank Flynn, when it came to his employment contract, a little bit of clarity amounted to a whole lot of doubt. ...[read more]
Salesman's contract a lemon: Judge
In Bradley Gallagher's case, a little bit of clarity would have gone a long way. Making ends meet selling used cars, Gallagher never paid much attention to the calculation of his commission payments. But in 2003, Gallagher's car dealership demanded that he sign a shady commission plan or face his immediate termination. Having refused, the dealership said he resigned. In the end, the judge said Gallagher was the one who was sold a lemon....[read more]
Signed documents will seldom be overturned
What results if a just-dismissed employee is essentially forced to sign a broad-ranging release, preventing him from taking further legal action? Does it matter if the employer took advantage of the employee’s personal problems, effectively “preying” on his concerns, and even threatening him by stating he would get nothing unless he signed his name? According to a recent Ontario judge, not much! ...[read more]
Silence may not always be golden
At the age of 66, Kathleen Fisher found herself in a pickle. Believing she was being forced to retire, she turned to her company president, Keith Andersen, looking for answers. Anderson may not have agreed – but he offered no solution. As a B.C. appeal court recently concluded in finding Fisher was dismissed: his silence spoke volumes....[read more]
Strategies for severance success
Since employees have no legal entitlement to continued employment, Canadian employers get to call all the shots. Aside from allegations of discrimination, an employee’s only job security exists in the form of advance notice of termination or pay in lieu of notice. ...[read more]
Terms of Contract are Binding
Madhu Suri must have been crestfallen. Not only had he just lost his job, but he was told that the hefty severance agreement he thought he had negotiated was no longer an option. But instead of simply ignoring his legal rights, Suri got himself a lawyer. ...[read more]
The myth of 2 weeks' notice
One of the most frustrating aspects of my practice is that when advising employees about how much their termination package will be worth, everyone thinks they are an expert. Many times, my clients have been given poor advice from friends, neighbours, their real estate lawyers or anyone else purporting to know the law in this area. Fortunately, however, not all “experts” are created equal. ...[read more]
The Rocky Road to Dismissal - Employees must combat warning signs
With no legal entitlement to continued employment, Canadian employees decry that the law of dismissal favours their employer. Employers, however, don’t have a magic bullet for liberating themselves from unsatisfactory employees; most mistakes are made by the employees themselves....[read more]
Wallace Damages
Unfortunately, I’ve learned that we cannot always expect others to treat us fairly, reasonably and decently. But when it comes to being terminated from a job, employers are legally required to behave in such a manner. A 1997 Supreme Court of Canada decision — which is considered to be one of the most influential employment law decisions to date — established the standard requiring employers to treat employees with good faith and fair dealing at the time of their termination....[read more]
With appropriate notice, anything goes
Having the terms of your job forcibly changed is usually taboo. But the tables are turned when advance warning is provided. Most employees believe that their jobs can seldom be varied without their consent. As an Ontario judge recently confirmed, those employees are mistaken. ...[read more]
Workplace Law
Employees are often the author of their own misfortune. Despite my cautionary writings, they routinely sign contracts replete with unfavourable terms. By doing so, they unknowingly agree to be eliminated with minimum notice, demoted, or banished to far away jurisdictions, see their salary slashed and prevented from competing with their employer following their departure - all with legal impunity. Just as often, however, Canadian courts are reluctant to enforce these agreements for a variety of reasons. ...[read more]
Workplace Law's biggest misconceptions
This is as true at work as it is in life, except that in workplace law there is always an exception. Here is a sampling of some of the questions readers of this column frequently ask and the answers I often provide....[read more]
Workplace Law’s biggest misconceptions
Poor performance may be cause for dismissal....[read more]
Workplace policies
Many disputes are rooted in, and later resolved on the basis of, policy. Or at least they should be. This applies in law as much as it does in life: our courts do not always decide employment cases based on what is reasonable or just, but rather, on what makes for the best workplace policy....[read more]
Worse job may be case of constructive dismissal
Are you doing the job you were hired to do? Or are you doing something completely different? Have the terms of your employment agreement been changed without your permission?If so, you may have been “constructively dismissed,” whether you realize it or not. And you may be entitled to damages. Constructive dismissal occurs where your employer unilaterally implements a fundamental change to the essential terms of your job. When this happens, the job you are performing is significantly different than before, and your employer may therefore be deemed to have dismissed you....[read more]