Perley-Robertson, Hill & McDougall LLP/s.r.l. has a long
history of providing employment law advice to its diverse
clientele. With our employer clients, we always recommend the
preparation and implementation of written agreements for all of
their team members whether they are employees, independent
contractors, associates, or partners. Let us explain why.
The most important reason to have written agreements in place is
to provide certainty regarding your expectations and to govern how
you will interact during the relationship, but they are also
critical to establishing your respective obligations on termination
of the relationship. This certainty alone can provide considerable
peace of mind and cost savings by avoiding disputes and unnecessary
Besides certainty, a written employment agreement can serve to
minimize an employer's obligations upon termination. Many
employers are surprised to learn that without a written agreement
to the contrary, an employee is entitled to "reasonable
notice" on termination, and that such notice can be up to 24
months or more of the employee's gross salary and benefits
– an amount that far exceeds the notice required by
Ontario's Employment Standards Act.
However, it is possible to craft an agreement that satisfies an
employer's obligations under the Employment Standards Act, but
avoids the common law obligation to provide "reasonable
notice" a concept that by its very nature is vague and
uncertain. This is because what notice will be reasonable depends
on the individual circumstances of the employment relationship,
Character of the employment;
Length of service by the
Age of the employee; and
Availability of alternative
employment given the employee's training, qualifications and
Careful Drafting is Essential
The Courts regard written employment agreements very critically.
That is, before an employment agreement will be considered valid
and enforceable, rebutting the presumption of reasonable notice, it
must be clear and unambiguous, and must not violate any provision
of the Employment Standards Act, or it will be considered null and
void exposing the employer to considerable liability.
As a result, we encourage you to obtain professional assistance
in preparing these agreements, and if you already have agreements
in place, we recommend that you have them reviewed/updated by legal
counsel to ensure they meet the higher standards that have recently
been set by the Courts.
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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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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