The short answer is probably not. Most employees do not realize that when they leave their job, or are hired for a new job, they have rights and the employer has legal obligations. While you may easily search and find the Employment Standards Act (“ESA”) and the guides to the ESA, as provided by the provincial government in Ontario[1], you should understand that the legislation only sets out the minimum requirements that an employer must meet when hiring, employing and terminating employees.
When you are hired, it has become more common for an employer to ask you to enter into a written employment agreement. While such an agreement may give you, the employee, some additional rights and benefits, it often also reduces the common law rights and entitlements that you would otherwise be entitled to. An employer cannot ask you to agree to anything less than what the Employment Standards Act (“ESA”) provides an employee, you could be asked to contract out of other rights and benefits. Despite a written agreement, a dispute may still arise between an employee and an employer, as to whether the clause meets or defeats the minimum requirements owed to an employee. Unfortunately, those disputes often do not arise until the employee has been terminated from their employment. And even if an employee has not sought legal advice on the agreement at the time of signing, the agreement could still be found by a court as valid.
An employee’s minimum entitlements under the ESA include:
- a regular recurring pay period, an employer shall pay all amounts earned during that pay period to the employee
- an employee is entitled to set hours of work, and overtime pay
- an employee is entitled to time off for pregnancy, parental leave and medical leaves of absence
- an employee is entitled to vacation time and public holiday pay
A written employment agreement which could provide clarity, will often set out the amount of salary to be paid, retirement benefits (if provided), health and dental coverage, commissions, and car allowances or entitlements to other employee related expenses. It may also set out a required probationary period, limits to termination pay and/or severance and obligations owed to an employer at the end of your employment or upon termination of your employment.
An employer may ask you to agree to be subject to a probationary period. This could be a period of 3 to 6 months where an employer can determine whether you are a good fit or not (see: Nagribianko v. Select Wine Merchants Ltd.). If an employee is terminated from their employment during this period of time the employee will not be entitled to notice, or termination pay. Keep in mind an employer is expected to base their decision on an honest, fair and reasonable assessment of the employee’s suitability. Absence a probationary clause and/or termination clause in a written employment agreement, termination of employment can only occur with reasonable notice or for just cause.
If an employer has human resource policies for their employees to follow, the written employment agreement should refer to those policies and the employee should have been provided copies of those written policies along with their initial offer of employment. The employer should also provide the employee a period of time to review the policies and the written employment agreement. It is also good practice for an employer to advise an employee that they should consider seeking independent legal advice before signing the written employment agreement.
If a clause or term of a written employment agreement is unclear or ambiguous, the validity of that clause will be interpreted to the benefit of the employee, that is if an employer intended to rely on a clause of the agreement then such clause would have been clearly set out specified in the agreement.
The bottom line is, you are the best person to look out for your own interests and that includes the interests that you have as an employee in an employment relationship.
Whether you are seeking new employment, have been offered new employment or have recently been terminated from your employment, it is always in your best interests to seek legal advice. If you wish to speak with one of our lawyers, please contact us at info@chapmanlaw.ca or at 705-719-2200.
[1] Each province of Canada has its own employment related legislation and all provinces other than Quebec are subject to the ‘common law’ or judicial decisions.
It is always in your best interests to seek legal advice. If you wish to speak with one of our lawyers, please contact us at achapman@chapmanlaw.ca or at 705-719-2200.