Canada: Why Blackberry’s Court Win Against A Senior Employee Will Hurt Its Talent Recruitment

Last Updated: July 7 2014
Article by Howard A. Levitt

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 exit.

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 awry.

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 as any.

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 anywhere else.

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 candidates.

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 they leave.

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.

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