Employment & Labour
 

What are an employer's obligations to an employee whose employment is to be terminated without cause?
The answer to this question assumes that there is no agreement between the employer and employee dealing with the matter, and that there is no cause recognized by the law that would permit the employer to terminate the employment without notice.

Under applicable statutory law, an employer is required to give an employee a specified notice of termination, or pay-in-lieu thereof the amount of which is based upon the duration of the employment. In addition to such statutory notice or termination pay, the employer may be required by law to provide severance pay to the employee. Whether or not this obligation will arise depends upon various factors, such as the length of the employee’s service, the size of the employer's payroll and, in the case of mass layoffs, the number of employees affected.  

In addition to these statutory obligations, an employer is also required under common law to give an employee "reasonable notice" of termination of employment or pay in lieu thereof. The definition of reasonable notice varies according to a series of factors, such as the employee's age, level of position (i.e., management or clerical, blue collar or professional), the employee's length of service with the employer, the degree of difficulty that the employee will have in obtaining comparable employment after the termination, whether or not the employee was originally enticed away by the employer from a previous position, and the manner in which the employment was terminated by the employer. What is reasonable depends on the facts of each case and can only be answered with the benefit of legal advice.

The determination of an employee's statutory and common law rights when dismissed from employment is complex and each case is entirely dependent on the circumstances. BrazeauSeller.LLP lawyers have a great deal of experience in this area of the law, both from an employer and an employee standpoint, and would be pleased to assist in individual cases.

Should an employer and an employee have a written employment contract?
An employer and an employee automatically enter into an "employment contract" from the time the employer agrees to hire the employee and the employee agrees to work for the employer. Rights and obligations flow from that time whether or not there is anything in writing.

A properly drafted written employment contract is desirable inasmuch as it clearly describes the agreement between the parties on matters that are of importance to them. When a written contract clearly describes a matter of benefit to one party, it makes it very difficult for the other party to argue later on that the matter was never agreed upon. This is true for employment contracts as much as it is true for any other type of contract.

From an employer's point of view, a properly drafted employment contract that clearly describes the applicable notice period in the case of termination by the employer significantly reduces the exposure to a lawsuit by the employee following termination with its attendant uncertainty, cost and distraction. From an employee's point of view, a written employment contract might, for example, contain a "golden parachute" provision whereby certain benefits accrue to the employee if the employer is taken over by another company. The contract might also describe a myriad of other benefits in favour of the employee.

Does an employer have the right to suspend an employee for misconduct?
An employer in a non-unionized workplace has no right to suspend an employee for misconduct except to the extent that it has reserved for itself the right to do so by agreement with the employee, or through policy communicated to employees generally and enforced in an even-handed manner.

Many non-unionized workplaces have policies which that set out an employer's right to discipline by way of suspension, written reprimands and the like in order to provide for a progressive discipline system, which is designed to respond to an employee's improper conduct without having to resort to termination.

In the case of a unionized workplace, virtually all collective agreements contain or contemplate progressive discipline provisions. Collective agreements often detail the nature of offences that merit discipline and contain limits upon the manner in which an employer can discipline an employee. For example, discipline must be initiated within a certain amount of time from the conduct that gives rise to the discipline. Some collective agreements even prescribe the minimum or maximum disciplinary penalties that will apply to certain workplace "offences."

Following termination of employment, does an employee have any obligations to his/her former employer?
The obligations owed by an ex-employee to his/her former employer depend on whether the employee signed an agreement containing non-competition or non-solicitation provisions, and the level of seniority of the employee.

A non-competition agreement typically prohibits an employee from competing with the former employer for a defined period of time within a defined geographic territory. In order for the agreement to be enforceable, the restrictions cannot exceed those that are reasonably required in order to protect the legitimate business interests of the employer. A non-solicitation agreement typically prohibits an ex-employee from soliciting or inducing clients or employees of the employer away to another business. Another important restriction commonly found in these agreements bars an ex-employee from using or sharing with others confidential business information relating to product development, research, business methods or trade secrets of any kind.

What if there is no agreement?
Where an employee occupied a position of trust with his/her former employer or occupied a very senior position such that he/she was aware of strategic or confidential business information, that ex-employee is not allowed to take advantage of previous corporate opportunities to the detriment of the former employer. Where the employee did not occupy a position of trust or a senior position, the employee does not owe any fiduciary obligations towards a former employer. He or she is free to compete against the former employer and to solicit customers of the former employer provided that no trade secrets or other property of the former employer are used in so doing.

As a full-service business law firm, BrazeauSeller.LLP combines its expertise in the areas of employment, technology and intellectual property law to ensure that our business clients protect the intellectual property their employees develop or use.

Is it advisable to have a written workplace policy regarding sexual harassment?
While an employer is not legally required to have a written policy regarding sexual harassment, it is advisable to have one and to ensure that it is fully respected and implemented. Case law suggests that where an employer has a written policy regarding sexual harassment and it is respected and adhered to, the employer may avoid liability for acts of sexual harassment by one of its employees that could not reasonably be prevented by the employer.

Where an employer implements an effective sexual harassment policy, and promptly and fully investigates claims with the cooperation of the parties involved, the complaint can often be dealt with quickly with a minimum of negative consequences for the parties involved or the company.

Where there is no such policy in place or where the matter is not addressed properly, the consequences are often much more severe. In these cases, employers can be faced with a situation where an employee's continued employment is untenable given the nature and severity of the sexual harassment that is alleged, and the employer has no choice but to terminate the employee and possibly pay out severance packages, or else risk legal action from employees who do not believe that their termination was justified. A complaint may also be made to the Human Rights Commission.

Can an employer view an employee's e-mail or listen to an employee's voicemail without that employee's permission or knowledge?
Employees who use company e-mail and voicemail for personal purposes often believe or expect that they have a right of privacy with respect to non-business related information contained in voicemail or e-mail messages. Such an expectation of privacy may be reasonable where the employer has not advised its employees that their voicemail and e-mails may be monitored. In order to deal with the arguments relating to employees' expectation of privacy, employers should have written policies to advise employees that their usage of company electronic equipment may be monitored and that where the usage is found not to be business-related or in compliance with employer policies regarding accepted usage discipline may result. Where an employer has gathered evidence on an employee through the monitoring of e-mail or voicemail and wishes to rely upon such evidence in a termination or disciplinary context, the evidence is subject to the usual challenges regarding reliability, the purpose for initiating the monitoring and the use of the information, etc. The employer's ability to rely on such evidence is greatly enhanced if it has a written policy permitting it to do so.

Finally, in addition to the employment-related ramifications of monitoring employees' e-mail or voicemail, where an employer learns of possible illegal activities through such monitoring, it may face the awkward question of whether it is under a legal duty to report what it has learned to the appropriate authorities. Such situations have arisen where employer monitoring of employees' computer usage has revealed details of illegal child pornographic images being stored in an employer's computer hard drives. Similar issues of criminal law can arise just as easily where images or text contained in e-mail messages or attachments violate anti-child pornography or anti-hate crime legislation.

The best course of action is to establish well-written policies for the workplace that set forth what level of privacy, if any, employees can expect to have regarding email, voicemail and other technology. BrazeauSeller.LLP's technology lawyers have extensive experience in creating customized policies that are sensitive to the particular culture of each workplace.