Whether or not expressly mentioned in the employment contract,
all employees have the following fundamental
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
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
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
Employment 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:
Does the employer have a proprietary
interest entitled to protection?
A business with little or no goodwill or few trade secrets is
unlikely to succeed in enforcing a non-competition clause.
Are the temporal or spatial features
of the clause too broad?
Temporal features include the duration during which the
employee cannot compete.
Spatial features include the geographic scope in which the
employee cannot compete.
Is the covenant unenforceable as
against competition generally and not limited to proscribing
solicitation of the former employer's clients?
There is a distinction between covenants that restrict
competition in a general sense, and those that restrict the
solicitation of clients.
The courts prefer to enforce a non-solicitation clause over a
broad non-competition clause.
(III) EMPLOYER COMMON LAW IMPLIED OBLIGATIONS
Whether or not expressly mentioned in the contract, all
employers have the following obligations:3
Duty to provide work and pay for work done:
Provide employees with work, and pay
for the work completed; and
Not lay-off or suspend an employee
without pay (unless the contract stipulates otherwise).
Duty to provide a safe work environment:
Use all reasonable precautions to
safeguard employees from workplace dangers, whether from the work
environment, machinery, or tools;
Provide proper and safe systems of
Select properly skilled managers to
instruct and supervise employees
Duty to provide notice of termination:
Provide indefinite-term employees
with notice of termination, unless there is just cause; and
Provide a reasonable period of
(IV) EMPLOYER STATUTORY OBLIGATIONS
Employment Standards Legislation
The 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:
Payment of wages and overtime
Hours of work and eating periods
Vacation with pay
Equal pay for equal work
Leaves of absence
Termination and severance of
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
Human Rights Legislation
The Human Rights Code expressly prohibits
employee-related discrimination and harassment. For more
information, see the "Human Rights" handout.
Health and Safety Legislation
The 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.
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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