(I) EMPLOYEE COMMON LAW IMPLIED OBLIGATIONS
Whether or not expressly mentioned in the employment contract, all employees have the following fundamental obligations.1
Duty of obedience, attendance, and competence
- Obey the employer's reasonable orders falling within the terms of the employment;
- Attend work on time; and
- Perform the work contracted for competently.
Duty of good faith and fidelity
- Maintain confidentiality of the employer's trade secrets and other information;
- Act honestly and faithfully, putting the employer's interests first and avoiding any conflicts of interest; and
- Not take any secret profits or commissions from the relationship.
Duty to provide notice of resignation
- Provide reasonable notice of the termination of the employment relationship
NOTE: Determining the "reasonableness" of notice is fact specific. Consideration is given to the following factors: employee's responsibilities; length of service; salary; and, the time it would take to find a suitable replacement. (II) EMPLOYEE CONTRACTUAL OBLIGATIONS TO RESTRICT COMPETITIONEmployment contracts often contain a provision that restricts an employee from competing with the employer after the relationship ends. Such a covenant is valid and enforceable only if it is "reasonable between the parties and with reference to the public interest."2 In this context, the public interest is to discourage restraints on trade, and the rights for parties to contract freely. When determining the reasonableness of a restrictive covenant, the courts consider the following:
(III) EMPLOYER COMMON LAW IMPLIED OBLIGATIONSWhether or not expressly mentioned in the contract, all employers have the following obligations:3 Duty to provide work and pay for work done:
Duty to provide a safe work environment:
Duty to provide notice of termination:
(IV) EMPLOYER STATUTORY OBLIGATIONSEmployment Standards LegislationThe Employment Standards Act (the "ESA") sets out the minimal employment standards for most unionized and non-unionized employees. The following minimum standards are set by the ESA:
The obligations set out in the ESA do not apply to employees that fall under federal jurisdiction. This includes those employed in the following sectors: banks, international trucking, and radio and television. The courts have characterized employment standards statutes as benefits-conferring legislation. This means that the ESA must be interpreted in a "broad and generous manner" such that "any doubt arising from difficulties of language should be resolved in favour of the claimant."4 Human Rights LegislationThe Human Rights Code expressly prohibits employee-related discrimination and harassment. For more information, see the "Human Rights" handout. Health and Safety LegislationThe Occupational Health and Safety Act (the "OHSA") addresses the prevention of injury and disease in the workplace. The OHSA imposes a reciprocal duty on employers and employees. Specifically, employers have a duty to provide a safe workplace, and the employees have a duty to take reasonable care in the workplace to protect the health and safety of themselves and other employees. Footnotes 1 The Law Society of Upper Canada: Solicitor Exam Bar Materials (2016), at 314-316. 2 Elsley v J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916 (S.C.C.). 3 Supra note 1. 4 Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 (S.C.C.). Go to Part 3 - Termination / Dismissal 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. |