header_people.jpg

Posts tagged: Employment Contracts

Was your Suspension a Constructive Dismissal?

By , October 26, 2018 3:05 pm

Was your Suspension a Constructive Dismissal?

Employees today spend as much time at work as they do at home. So, the workplace should be an environment where you feel secure, trusted and safe. Unexpected changes in your job, such as a suspension, can leave you feeling confused, frustrated and unsure of where you stand. Your employer has a duty to abide to the contract, policies and/or handbook that you have signed.  A suspension without pay may be a constructive dismissal unless you have agreed to this kind of discipline in an employment contract or policy. This was recently highlighted by the Court of Appeal in Filice v. Complex Services Inc.

To learn other workplace changes which might be a constructive dismissal see here.

The Case

Mr. Filce worked for a casino run by Complex Service Inc. as a Security Shift Supervisor.  The Alcohol and Gaming Commission of Ontario audited the casino and discovered inconsistencies in entries made by Mr. Flice. Mr. Filce was then investigated by police and Complex placed him on an unpaid suspension.

Mr. Filce’s suspension lasted 17 months.  During this time he was charged with theft, but never convicted. However, because he lost his gaming license, after the unpaid suspension, Complex terminated Mr. Flice’s employment.  

Mr. Flice sued for constructive dismissal arguing that Complex had no right to suspend him without pay. The Superior agreed and awarded him pay for the 17 months he missed during the suspension and $100,000 in punitive damages.

Complex appealed. However, the Court of Appeal agreed that Complex did not have the right to suspend Mr. Filce without pay in his employment contract or handbook. Doing so, was a constructive dismissal. However, the Court of Appeal did reduce his damages.  

Lessons For Employees

  • Read and understand your employment contract and employment policies or handbooks. These policies can take away your rights, or give your employer rights such as the ability to suspend you without pay.
  • If you are suspended, get legal advice.  Your employer may not be allowed to do so, and you pay be able to get compensation or get back to work sooner.

If you have questions about suspensions or constructive dismissal and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Understand what your employment contract means before you sign it!

By , February 2, 2016 1:16 pm

So you have just been offered a job and your prospective employer has asked that you sign an employment contract before you start. Should you have it reviewed by a lawyer first?

The language used in most employment contracts takes away your legal rights. A lawyer can explain which rights you are giving up under a contract and can suggest changes to the contract that benefit you.

Here are three common clauses that are found in employment contracts:

Probationary Period

If an employer terminates your employment shortly after luring you from secure employment, then you may be entitled to significant termination pay based on your length of service with your former employer, UNLESS, the employment contract that you signed has a probationary clause. This clause often allows the employer to terminate your employment with little or no notice during a probationary period.

Full-time and Attention

This kind of clause provides that you must devote your full-time and attention to the employer. Many of us have commitments or interests outside of work that may result in a violation of this kind of term of employment. If so, you may want to suggest an amendment to this clause which permits you to continue a specified outside interest.

Termination Clause

Most employment contracts contain a termination clause which takes away your right to reasonable notice of termination. This will result in you receiving much less termination pay than you would otherwise receive.

Let’s say you earn $ 52,000 a year and you are terminated after 12 years of service. A small employer can limit your rights on termination to 8 weeks pay (or $ 8,000) with a properly drafted termination clause whereas without this clause you could be entitled to up to 12 months pay (or $ 52,000)

Most employment contracts contain more than a dozen clauses and many of these clauses are drafted to benefit the employer; not you.

Spending an hour with an employment lawyer reviewing each term of an offer of employment will ensure that you know the legal implications of each clause in the contract and may lead to changes to the offer that benefit you. If you have an employment contract that you would like reviewed, a lawyer at MacLeod Law Firm would be happy to assist you.

 

Employers Must Honestly Negotiate Employment Contracts

By , January 7, 2016 10:00 am

We previously reported on the duty of honesty created by the Supreme Court. In 2014, the Supreme Court held that the duty of honest performance requires the parties to a contract not to lie or mislead each other and to generally perform contractual duties reasonably.

In 2015, the courts applied this to negotiations on employment contracts.

The Case

In Antunes v. Limen Structures Ltd., Mr. Antunes was a successful independent contractor.  He left this work to take a role as a Senior Project Manager.  He did so based on representations his future employer made during their employment contract negotiations. The employer told him that the company was thriving and worth $10 million. It promised Mr. Antunes his shares would be worth $500,000 within one year of commencing employment.  Unfortunately, the company was not financially stable. Mr. Antunes was terminated after five months employment. He sued for misrepresentation and wrongful dismissal.

The Ontario Superior Court ordered the company to pay Mr. Antunes eight months’ pay in lieu of notice as well as $500,000.  This award was high for a wrongful dismissal case and the court based its decision, in part, on the company’s breach of the duty of honesty.

Lessons

Leaving secure employment for a new position always requires careful thought. This is particularly true if you are leaving secure employment based on promises of future compensation or promotions. If a potential employer misrepresents information to you or fails to act honestly when negotiating an employment contract with you then the employer may be liable to pay you extra damages if you are terminated without cause. This is why it is often a good idea for you to have an employment lawyer review any offer of employment you receive from a prospective employment before accepting it.

If you would like to speak with an experienced employment lawyer about employment contracts or severance packages, please contact us at [email protected] or 647-204-8107.

 

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Employment Contracts: Negotiating Tips for Senior Executives

By , October 7, 2011 6:10 pm

Negotiating employment contracts for senior executives requires a personalized review of the terms of employment. Driven, personable, results- oriented, leaders are always in demand. These high-powered executives have negotiating leverage that most employees don’t.

Here are five things to review in your employment contract if you are such a person:

  1. If you are being lured from secure employment, how much money are you leaving on the table by resigning? Have you thought about how to recoup this money from your new employer?
  2. If you have signed any restrictive covenants with your current employer such as a non-solicitation clause, have you disclosed and addressed this topic with the new employer? There are numerous issues that should be addressed.
  3. Have you calculated the value of your current benefit package and compared it to the new employer’s package? Perks and benefit packages are generally decreasing as a result of shareholder demands. Accordingly, an understanding of the realities of this area and creative negotiating tactics can benefit the executive.
  4. Do you really understand the performance compensation scheme in place with the new employer? There are a myriad of issues that may need to be negotiated in this area.
  5. What kind of job security do you need – particularly if you are leaving secure long-term employment? Have you thought of an exit strategy if the new employer is sold or is taken public?

If you are changing jobs and need help negotiating the terms of an employment contract with a new employer, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).

Panorama Theme by Themocracy