When it comes to employment contracts in Ontario, details and specifics matter. The myriad of nuances that can dramatically affect liability and risk make employment contracts a topic that we often receive questions about. This Employment Contract FAQ covers some of the most common questions.
Q: How do I know if I have an enforceable employment contract in Ontario?
A: In general, employment contracts in Ontario are formed when there is an offer of employment and an acceptance of the offer, with the offer providing some benefit or consideration. This means that the employee is offering their skills and knowledge for compensation from the employer. Employment contracts that do not adhere to legislative minimums or standards may be deemed to be unenforceable. Employment contracts in Ontario may also be found to be unenforceable where the contract was signed post the employee beginning their work. Having an employment lawyer review an employment contract allows employers to feel more confident that their contracts will hold up in court if necessary.
Q: What if there is no written employment contract?
A: Omitting to implement a written employment contract in Ontario increases the employer’s risk of being liable for common law termination entitlements, versus the legislated minimums under the Employment Standards Act (“ESA”), which can be substantially higher in certain scenarios. While verbal agreements may still be found to be enforceable, it is more difficult to prove the particulars in court. Ensuring that an experienced employment lawyer reviews an employment agreement, either written or verbal may reduce an employer’s risk of being liable for common law versus legislated notice period.
Q: What is common law reasonable notice?
A: When an employee is not restricted to the legislative minimums set out in the ESA, they are typically entitled to common law reasonable notice or pay in lieu. While there are hundreds of relevant factors which will influence the amount of common law notice, there are 5 common factors which are often analyzed when deciding how much the employee should receive. These are referred to as Bardal Factors, and are:
- The nature and character of the employment;
- length of service;
- age of the employee, and
- the likelihood of securing similar employment considering the employee’s experience, training and qualifications.
An employment lawyer can assist employers in drafting enforceable employment agreements to reduce the likelihood of being found liable for common law reasonable notice.
Blogging for Achkar law is Christopher Achkar, founder and principal of Achkar Law. Since being called to the bar in 2016, Christopher works with employers regarding all their HR Law needs at multiple levels of court, including tribunals such as the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Ontario Labour Relations Board, and the Workplace Safety and Insurance Board.
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