No one would deny employers the right to protect their
interests, including expecting all employees to fulfill their
duties as laid out in their employment contract. But the optics of
dragging a case into court, as BlackBerry did, to prevent a senior
employee from moving on to another employer, might preclude a rush
of new job applicants. Time will tell.
Sebastien Marineau-Mes, senior vice-president of software at
BlackBerry, recently tried to jump ship to Apple. But the attempt
did not go well, largely because the company is suing him for
violating a term of his employment contract that required him to
give six months notice.
Marineau-Mes was formally offered a lucrative position at Apple
in December 2013, and subsequently gave BlackBerry 60 days notice.
BlackBerry responded by telling him to re-read the contract he
signed when he was promoted to executive vice-president just two
months earlier. It was clear to BlackBerry that Marineau-Mes had
accepted the promotion and signed the accompanying employment
agreement while he was in talks with Apple.
In March 2014, the Ontario Superior Court of Justice upheld the
employment agreement Marineau-Mes had signed and declared he could
not work elsewhere until the six months was up. While he is not
technically being forced to return to BlackBerry to
work, Marineau-Mes must stay available to them to provide
consulting and assistance as set out in his agreement.
In a public statement BlackBerry said it would not tolerate
violations of its employment agreements and expected its employees
to honour their commitments. In short, it does not regret taking
Marineau-Mes to court and is pleased with the decision.
It was common knowledge at BlackBerry that Marineau-Mes was
considered one of the team's great talents, which may be one
reason it insisted on litigating the issues around his abrupt
But in my opinion it is not realistic for an employer to expect
an employee that is forced back to work to be motivated to do a
good job. BlackBerry may also have been concerned about employee
hemorrhaging, but what about recruitment after this decision
becomes public knowledge?
The real driving force behind this litigation was to ensure the
employment agreement signed by Marineau-Mes would be known as a
force to be reckoned with.
I consistently advise employer clients to have employees —
particularly executives — sign employment agreements. Hiring
at Marineau-Mes's level without an agreement belies common
sense and is often a recipe for disaster when relations go
Marineau-Mes attempted to argue that his agreement was null and
void for several reasons: he never technically assumed the role of
executive vice-president, which the contract spoke to; the contract
violated the Employment Standards Act, 2000 because it did not
provide him with adequate vacation pay; and there was no
consideration provided at the time the contract was signed. His
lawyer also argued that a "good reason" provision that
would allow him to resign and replace the six months notice with 15
days was valid because a move to Apple was as good a reason
The court sided with BlackBerry in looking at the general spirit
of the contract and that it was enforceable, and the clause around
resignation entirely reasonable. Marineau-Mes must wait until June
23, 2014 before he can start working for Apple or any other
employer. BlackBerry may choose to ask him to work during this
period, but their failure to do so does not mean he can work
This case will be relied on by all employers finding their
employment agreements under scrutiny by the courts. The lesson: If
you ensure your employees sign a sound employment agreement —
the courts will uphold it.
Here are a few of the benefits of ensuring your executive-level
employees sign off before they step in:
Resignation clause This prevents senior and
executive level employees from jumping ship and leaving you in a
bind to fill roles where there might be few qualified
Non-disparagement clause Not everyone cares
about what disgruntled employees have to say about their old
employers; however, when the departing employee is an executive,
people generally listen and sometimes believe. Prevent these
employees from saying anything bad (true or otherwise) about your
company after they leave.
For cause or without cause termination This
will clarify the expectations and relationship between the parties
and should apply to all employees so there are no surprises about
what they are entitled to (or not if terminated with cause) when
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).