The Employment Agreement is the contractual agreement between the employer and the employee and it governs the employment relationship between the parties. It is essentially the most important document that governs the working relationship.
It is vitally important to have the employee sign an Employment Agreement before their first day of work. It is very difficult to impose an Employment Agreement retroactively (or after the individual has started, even if only a few days after the start date), so it is best for charities and non-profits to set up a process in which all new hires are provided a standard Employment Agreement immediately upon being offered the position.
The Employment Agreement outlines the basic terms of the employment relationship, providing:
You cannot contract out of applicable Employment legislation, and for the Employment Agreement to be valid and binding it must comply with the Employment Standards Act, 2000.
1. Failure to have a Termination Clause in the Employment Agreement
Termination clauses can range from simple to extremely complex and it should, at a minimum, outline the notice that will be provided to an employee on termination, without cause. The termination clause must comply with the minimum notice requirements under the Employment Standards Act, 2000.
The termination clause should explain the different legal obligations in the event of termination for cause or termination without cause. There is no requirement at law for an employee to give any notice of resignation from their employment. The termination clause could also outline the minimum expectations of notice that the employee should provide to the employer on resignation, i.e. 1 week per year of service, etc.
2. Failure to Update the Employment Agreement on Promotion
An important and often overlooked aspect of the Employment Agreement is to update it upon changes in the employment relationship; such as the employee being promoted, provided a raise, or if the employee has a significant change of responsibilities. Consideration is required for the amendment to the Employment Agreement. It is not necessary to re-draft the entire Employment Agreement but a simple addendum specifying the changes in the position, salary, responsibilities, etc. and stating that all other terms of the Employment Agreement remain in effect is sufficient.
3. Failure to have standardized and enforced Workplace Policies and Procedures
It is important for employers to have in place standardized workplace policies and procedures that are applicable for all employees. These workplace policies and manuals often fill in the gap between the formal employment agreement and the actual workplace conditions.
The enforceability of such workplace policies and procedures is often dependent on a number of factors, including:
4. Failure to accommodate under the Human Rights Code
Everyone in Ontario is protected by the Ontario Human Rights Code which essentially provides protection from discrimination on the basis of:
The Human Rights Code, means, among other things:
5. Termination for cause
There are two ways to terminate an employee:
Termination for just cause: employer is not required to pay the employee either statutory termination or severance pay under the relevant employment standards legislation, or common law pay in lieu of notice of the dismissal. It is extremely difficult to establish “just cause” for termination. Examples include fraud, theft, sexual harassment, serious incompetence, intoxication at the workplace, etc.
The courts have consistently held that “just cause” is an extremely high test and that it is up to the employer to prove that it exists to justify in order to justify termination without notice.
Employer needs to assess:
6. Failure to provide an adequate Notice on Termination
If there is no “just cause” to dismiss the employee, then the employee is entitled to:
The statutory notice requirement is set out in the Employment Standards Act, 2000
In the absence an Employment Agreement, or an appropriate termination clause, an employee is also entitled to common law notice, which is the notice period that the Courts have determined is appropriate in similar cases . The Courts have continually held that the ESA sets out only the minimum notice requirements. As such, the Courts can (and have) dramatically extended the notice requirements that a non-profit or charity must provide to a dismissed employee.
Scott Chambers joined Blumberg Segal LLP in 2006 and became a partner at the firm in 2014, with a practice focusing on Shareholder and Partnership Disputes, Charity Law Litigation, Historic Sexual Assault Litigation, complex Family and Matrimonial Litigation, Product Liability Litigation, and Employment Law for both employers and employees.