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The Contract of Employment
9-19-2016
Every employed individual has a contract of employment. Often the contract is unwritten and will be comprised mainly of implied terms. The terms of a verbal contract of employment will be made up of the representations made to you by the employer prior to taking the job, plus terms which are implied into every contract of employment by law.
Representations that may have been made to you may include such things as the following:
1. The title accompanying the position which you will be employed in;
2. The duties required in your position;
3. The salary or wage that will be paid to you;
4. The benefits that will be provided to you;
5. The performance requirements;
6. The start date of your employment;
7. The hours which you are required to work;
8. The date on which you employment may end.
Terms implied by law include the following:
1. That you will not be terminated from your employment without just cause or reasonable notice of the termination;
2. That you will be provided with a safe and respectful work environment;
3. That you will not be subject to discrimination in fulfilling the duties of your position;
4. That all provisions of the Employment Standards Act will be complied with in your employment;
5. That you will be provided with the necessary tools to adequately perform your job;
That the terms of your employment will not be changed in a fundamental manner without either your consent or reasonable notice to you of those proposed changes.
The Written Contract of Employment and Enforceability
Many employees also have written contracts of employment. These contracts often have provisions regarding the responsibilities of an employer when terminating the employment. The usual issue which arises when an employee who has a written contract of employment is terminated is whether the employer can enforce the terms of the written contract of employment. This is so because generally written contracts of employment will be more advantageous to the employer than the employee with respect to terms detailing responsibilities of employers when terminating employees.
Written contracts however are often not enforceable. The enforceability of the contract of employment may be challenged on a number of basis, including the following:
1. Failure to comply with the minimum employment standards as prescribed by the Employment Standards Act;
No consideration provided for the contract of employment - this is a challenge which will often be available if the contract of employment was signed after the employment has already begun;
2. Duress - this arises in situations where an employee has been told that he will only be given the job or continue his employment with the company if he signs the employment contract;
3. Misunderstanding of the terms of the contract of employment.
If the enforceability of the written contract is not successfully challenged the provisions in the contract with respect to termination of employment will govern.
Termination of Employment
An employer can end the employment relationship at any time. The free will of parties to a contract is recognized by our courts. In practical terms, what this means is that the Court will not force continued employment between parties.
The result of the termination of your employment will depend on whether the employer had "just cause" for the termination. If the employer had just cause for the termination, they are entitled to end the employment without notice to you. If the employer does not have just cause for the termination, they are required to provide you with reasonable notice of the termination.
Cause for Termination
If an employer is able to establish that he has just cause for the termination, they are not required to give you any notice of the termination. The usual allegations of cause on the part of employers include the following:
1. Failure to adequately perform duties;
2. Lack of qualifications for position;
3. Tardiness;
4. Time missed from work;
5. Frustration of the contract of employment due to disability;
6. Insubordination;
7. Theft;
8. Failure to follow instructions;
9. Incompetence.
The above is a list of the usual types of allegations I see employers make in attempts to justify termination.
In a general sense, employers must show that you have been spoken to about the behaviour that has led to the termination on previous occasions, that you were given an opportunity to correct the behaviour and that you were warned that if you did not correct the behaviour your employment would be terminated. If an employer alleges they had cause for the dismissal, the burden is on them to prove that there was just cause.
Reasonable Notice of Termination
When an employer terminates employment without cause, the employer is required to provide "Reasonable Notice of the Termination". The question then becomes what is reasonable notice. In determining what would be reasonable notice, every case turns on its own particular facts.
The purpose of the period of notice is intended to bridge the period between termination and obtaining replacement employment.
Some of the factors which are considered of importance by the Court in determining what is reasonable notice are as follows:
1. The character of the employment - particularly the amount of responsibility and whether or not an individual has supervisory duties in their position;
2. The length of the employment;
3. The age of the employee;
4. The availability of similar employment, having regard to the experience, training and qualifications of the employee.
When Judges decide cases they will consider the above factors, as well as any other factors relevant to the particular circumstances and come to a decision regarding the appropriate period of notice given the particular facts of the case before them. Judges will also consider previously decided cases to assist them in coming to their conclusion.
As stated above, an employer is required to provide reasonable notice of the termination of employment. They are not required to provide a severance package. Damages (or a severance package) are paid by employers to compensate for their breach of the term of the contract to provide reasonable notice. If an employer fails to provide reasonable notice, the damages that the employee is entitled to are calculated by determining what would have been reasonable notice and what would have been earned by the employee if he had been provided with reasonable notice. Any earnings during the period of reasonable notice are then deducted.
Footnotes: Footnotes: Aleem Kamal,MBA is the President of Arza Employment Services Ltd based in Surrey, British Columbia.
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