Law WOOD Law WOOD Pay attention to employment contracts Pay attention to employment contracts
Review or regret Review or regret M M
any employers employers rely rely upon upon stanstanany dard form employment condard form employment conany employers rely upon stantracts, believing that they are suffi tracts, believing that they are suffi dard form employment concientare to meet meet cient to tracts, believing that they suffi their specific their cient specific to meet hiringspecific needs. hiring needs. their However, However, hiring needs. employers employers However, should have have should employers experienced experienced should have employment employment experienced law lawyers lawyers law employment regularly regularly law lawyers Junaid J. J. Malik Malik review their their Junaid review regularly em mppllooytheir ym meenntt ereview Junaid J. Malik contracts, to to ensure ensure that that the terms contracts, e m pthe l o yterms ment are valid valid and and enforceable. The recent are contracts, to enforceable. ensure that The the recent terms Court of Appeal for Ontario deciCourt of Appeal for Ontario deciare valid and enforceable. The recent sion, Waksdale 2020 ONCA 391, is an an sion, Waksdale 2020 ONCA 391, is Court of Appeal for Ontario deciexample of how employers would be example of how employers would be sion, Waksdale 2020 ONCA 391, is an wise to revisit their standard form wise to revisit standard form example of howtheir employers would be employment contracts. employment contracts. wise to revisit their standard form The employee employee in Waksdale Waksdale was was The in employment contracts. terminated on aa “without “without cause”was baterminated on cause” baThe employee in Waksdale sis, this means that the employer did sis, this means that the employer did terminated on a “without cause” banot allege cause justifying its decision not allege cause justifying its decision sis, this means that the employer did to end end thecause employment relationship. to the employment relationship. not allege justifying its decision Most employees who are terminated Most employees who are terminated to end the employment relationship. without cause have have entitlements unwithout cause unMost employees whoentitlements are terminated der the the Employment Employment Standards Act, Act, der Standards without cause have entitlements under the Employment Standards Act,
2000 (the (the “ESA”). “ESA”). Those Those entitlements entitlements 2000 include termination pay, and dependdependinclude termination pay, and 2000 (the “ESA”). Those entitlements ing upon their length of service, seving upon their length of service, sevinclude termination pay, and dependerance pay, among other things. Emerance pay, among other things. Eming upon their length of service, sevployerspay, are not not permitted to contract contract ployers are permitted to erance among other things. Emout of of the the terms of the the ESA. ESA. out terms of ployers are not permitted to contract An employee who is terminated terminated employee outAn of the terms ofwho the is ESA. on An without cause basis is also “pre“preon aa without cause basis also employee who is is terminated sumptively” entitled to common law sumptively” entitled to common law on a without cause basis is also “pre“reasonable notice.” Reasonable no“reasonable notice.” Reasonable nosumptively” entitled to common law tice is determined by judges on tice is determined by judges on aa “reasonable notice.” Reasonable nocase-by-case basis, and it tends to case-by-case basis, and it tends to tice is determined by judges on a be aa much much more more generous form of enenbe generous form of case-by-case basis, and it tends to titlement compared to entitlements entitlements titlement to be a much compared more generous form of enunder the the ESA. ESA. Reasonable Reasonable notice is is under notice titlement compared to entitlements a “presumptive” “presumptive” entitlementnotice in the the aunder entitlement in the ESA. Reasonable is that the the parties parties can contract contract sense that can asense “presumptive” entitlement in the out of it, in writing. This is major out of it, in writing. This is aa major sense that the parties can contract reason why employers rely upon reason why employers rely upon out of it, in writing. This is a major employment agreements. Properly employment agreements. Properly reason why employers rely upon drafted employment employment agreements aldrafted agreements alemployment agreements. Properly low employers employers an opportunity opportunity to limlimlow an to drafted employment agreements alit reasonable reasonable notice exposuretowhen when it exposure low employersnotice an opportunity limthereasonable employment relationship comes the employment relationship it notice exposurecomes when to an end by waiving the employee’s to an end by waiving the employee’s the employment relationship comes right to claim claim reasonable notice enenright reasonable notice to an to end by waiving the employee’s titlements. titlements. right to claim reasonable notice enThe issue issue in in Waksdale Waksdale was was that that The titlements. the employment agreement contheThe employment agreement issue in Waksdale was conthat tainedemployment with cause cause agreement termination proprotained aa with termination the contained a with cause termination pro-
vision which which attempted attempted to to contract contract vision out of the ESA. The employee in out of which the ESA. The employee in vision attempted to contract Waksdale argued that the terminaWaksdale terminaout of theargued ESA. that The the employee in tion provisions, provisions, read as aathe whole, were tion read as whole, were Waksdale argued that terminaunenforceable since the with cause cause unenforceable the with tion provisions,since read as a whole, were provisions offended the ESA. provisions offended the ESA. unenforceable since the with cause Indeed, offended the employer employer in Waksdale Waksdale Indeed, the in provisions the ESA. conceded that the with cause terminaconceded that the with cause terminaIndeed, the employer in Waksdale tion provisions were invalid. Though, tion provisions were invalid. Though, conceded that the with cause terminathe employer argued that the illegal the that theThough, illegal tionemployer provisionsargued were invalid. withemployer cause provisions provisions were irrelevant with cause irrelevant the argued were that the illegal because theprovisions employeewere was dismissed dismissed because the employee was with cause irrelevant on aa without without cause basis. basis. The employon The employbecause the cause employee was dismissed er added that the employee received er added that the employee received on a without cause basis. The employall added of his his ESA ESA entitlements, and that that all of entitlements, er that the employee and received he was not entitled to any reasonable he was not entitled to any reasonable all of his ESA entitlements, and that notice because of the the written waiver notice of waiver he wasbecause not entitled to written any reasonable in the employment contract. in the employment contract. notice because of the written waiver Ontario’s Courtcontract. of Appeal Appeal sided sided Ontario’s Court of in the employment with the employee employee andAppeal held that that it with the held it Ontario’s Court and of sided did not not matter that the the employee was did matter that was with the employee andemployee held that it terminated on that without cause basis basis terminated on aa without cause did not matter the employee was and received all of his ESA entitleand received all of his ESA entitleterminated on a without cause basis ments. The fact fact that the withentitlecause ments. The the with cause and received all that of his ESA terms were invalid was enough to terms were invalid was enough to ments. The fact that the with cause invalidate all of the termination proinvalidate all invalid of the termination proterms were was enough to visions in in the theof employment contract. visions employment contract. invalidate all the termination proConsequently, this meant meant contract. that the the Consequently, this that visions in the employment reasonable notice notice waiver was invalreasonable invalConsequently, thiswaiver meantwas that the id, thus thus entitling entitling the employee to his his id, employee reasonable noticethe waiver was to invalcommon law reasonable notice. common law reasonable notice. id, thus entitling the employee to his Waksdale demonstrates how Waksdale demonstrates common law reasonable notice. how employment law in Ontario is not employment law in Ontario is not Waksdale demonstrates how a static area of law, and that emaemployment static area law of law, and thatis emin Ontario not should periodically review ployers review aployers static should area ofperiodically law, and that emand update update their employment conand their employment conployers should periodically review tracts. tracts. and update their employment contracts. Junaid J. J. Malik Malik is is aa litigation litigation Junaid associate with Brampton, Ont.-based associate with Brampton, Ont.-based Junaid J. Malik is a litigation Lawrences. Lawrences. associate with Brampton, Ont.-based Lawrences. Comment at at www.woodindustry.ca. www.woodindustry.ca. Comment Comment at www.woodindustry.ca.
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