So, your business is thriving, and you need to hire some
help. You’ve started interviewing candidates, and
you’ve picked your top choice. You’re ready to
make this person an offer of employment. STOP! There
are two rules you should follow:
DO NOT offer employment until you have the employment contract
ready to be presented;
DO NOT allow the employee to start working until they have
signed the employment contract.
One of the most common mistakes employers make is offering
employment to a new employee before having an employment contract
to present to the employee.
An employment contract may actually be unenforceable if it is
signed after a verbal or informal offer of employment has been made
by the employer and accepted by the employee. The same issue
arises if an employee signs an employment contract after they start
working (even if they sign it on their first day!).
An unenforceable employment contract can lead to various
negative consequences for the employer. The employer cannot
rely on any of the provisions of the employment contract –
most importantly, the termination provision. This would
largely defeat the purpose of having an employment contract in the
first place. One of the key reasons to have an employment
contract in place is to limit the amount of termination pay that
must be paid in the event the employment relationship ends.
If the agreement limiting the amount of termination pay due
to an employee is not enforceable, then the amount owed can
Other important contractual provisions include items such as
non-competition and non-solicitation clauses, and layoff
Sometimes it is important for an employer to communicate their
interest in an employee as soon as possible, and employers are
eager to let employees know they have been hired. One way for
an employer to communicate its intentions quickly, but still
protect its rights, is to make it clear the employer will be making
an offer, conditional on signing an employment contract. If
it’s clear that signing an employment contract is a condition
of any offer of employment (or, better yet, if the entire offer is
presented in the contract), then the employer can allow itself a
bit of time to get a contract together, while confirming its
intentions to the prospective employee.
The prospective employee should have time to read and understand
the contract, and receive their own legal advice on the contract if
they so choose. As such, employers should be sure to provide
a copy of the contract to the prospective employee well in advance
of their start date, with time to review and ask questions before
The bottom line: following these two simple rules can save
you a lot of grief and money.
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.
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