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:
- The title accompanying the position which you will be employed in;
- The duties required in your position;
- The salary or wage that will be paid to you;
- The benefits that will be provided to you;
- The performance requirements;
- The start date of your employment;
- The hours which you are required to work;
- The date on which you employment may end.
Terms implied by law include the following:
- That you will not be terminated from your employment without just
cause or reasonable notice of the termination;
- That you will be provided with a safe and respectful work
environment;
- That you will not be subject to discrimination in fulfilling the duties of
your position;
- That all provisions of the Employment Standards Act will be complied
with in your employment;
- 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:
- 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;
- 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;
- 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.
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.
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:
- Failure to adequately perform duties;
- Lack of qualifications for position;
- Tardiness;
- Time missed from work;
- Frustration of the contract of employment due to disability;
- Insubordination;
- Theft;
- Failure to follow instructions;
- 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.
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:
- The character of the employment - particularly the amount of
responsibility and whether or not an individual has supervisory
duties in their position;
- The length of the employment;
- The age of the employee;
- 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.