The “changed substratum” doctrine is an integral part of employment law. The doctrine provides that if an employee enters into a written employment contract that specifies the notice period for a dismissal, its terms may be held unenforceable if, over the course of employment, the...
Employees are entitled to know at the beginning of an employment relationship what their entitlement will be at the end of their employment. To accomplish this objective, employers often spend a great deal of financial and human resources in drafting comprehensive employment agreements, just to...
Termination clauses are akin to prenuptial agreements. Their purpose is to create clarity about an employee’s entitlements at the time of dismissal. If a termination clause does not comply with the Employment Standards Act, 2000 (ESA), it will not be enforced. The issue of enforceability...
Enforceability of a termination clause in a written employment contract continues to be a vexing legal issue. An employment case in point is the Court of Appeal for Ontario decision in Amberber v. IBM Canada Ltd., 2018 ONCA 571, which clarified that subdivision of a...
A question of enforceability of termination clauses turns on the wording of the clause, the purpose and language of the Employment Standards Act, 2000, and the jurisprudence on interpreting employment agreements. With the release of Nemeth v. Hatch Ltd., 2018 ONCA 7, the Court of...
In general, courts interpret employment contracts differently from commercial contracts, mainly because of unequal bargaining power between employers and employees and the importance of employment in a person’s life. Some employment contracts include severability clauses, which are designed to reform an illegal...
While we often see employment contracts that contain termination provisions that purport to limit employees’ entitlements upon dismissal to the statutory minimums mandated by the Employment Standards Act, the language used to achieve that objective is often susceptible to legal interpretation. A case in point is...