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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
Revision as of 14:31, 18 August 2021
, 14:31, 18 August 2021→D. Post-Employment Issues
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The courts are unwilling to re-write restrictive covenants if they contain uncertain and ambiguous terms; these covenants are deemed prima facie unreasonable and unenforceable (''Shafron v KRG Insurance Brokers (Western) Inc''). It can often be a simple matter to find an ambiguity: the length of time or geographic area might not be specified, or there may be a prohibition against soliciting clients that the employee did not work with, or the employer may have used a non-compete clause when a non-solicitation clause would have adequately protected their legitimate business interests. See ''Powell River Industrial Sheet Metal Contracting Inc. (P.R.I.S.M.) v Kramchynski'', 2016 BCSC 883. | The courts are unwilling to re-write restrictive covenants if they contain uncertain and ambiguous terms; these covenants are deemed prima facie unreasonable and unenforceable (''Shafron v KRG Insurance Brokers (Western) Inc''). It can often be a simple matter to find an ambiguity: the length of time or geographic area might not be specified, or there may be a prohibition against soliciting clients that the employee did not work with, or the employer may have used a non-compete clause when a non-solicitation clause would have adequately protected their legitimate business interests. See ''Powell River Industrial Sheet Metal Contracting Inc. (P.R.I.S.M.) v Kramchynski'', 2016 BCSC 883. | ||
=== 2. Record of Employment and Reference Letters === | === 2. Drawing Restrictive Terms to Employee's Attention === | ||
In Battiston v. Microsoft Canada Inc., 2020 ONSC 4286, https://canlii.ca/t/j8nd8, the Ontario Superior Court did not uphold a contract term that excluded the employee’s rights to unvested stock awards after a without cause termination, because the employer failed to sufficient draw the provision to the employee’s attention. The Court awarded the employee damages in lieu of the stock awards that would have vested during the notice period. | |||
=== 3. Record of Employment and Reference Letters === | |||
There is no statutory requirement under the ''ESA'' for an employer to provide a reference. Employers are required to provide former employees with a record of employment, which includes information such as the length of service, wage rate, but does not include anything about the employee’s performance. | There is no statutory requirement under the ''ESA'' for an employer to provide a reference. Employers are required to provide former employees with a record of employment, which includes information such as the length of service, wage rate, but does not include anything about the employee’s performance. | ||
Since the decision of ''Wallace v United Grain Growers'', the view has been that an employer should provide a reference unless they have good reason not to. Failing to provide a reference could be construed by the courts as evidence of bad faith. In practical terms however, there is no way for a former employee to force their employer to provide a suitable reference letter without making some other sort of claim covered by the ''ESA'' or the common law. | Since the decision of ''Wallace v United Grain Growers'', 1997 CanLII 332 (SSC), https://canlii.ca/t/1fqxh, the view has been that an employer should provide a reference unless they have good reason not to. Failing to provide a reference could be construed by the courts as evidence of bad faith. In practical terms however, there is no way for a former employee to force their employer to provide a suitable reference letter without making some other sort of claim covered by the ''ESA'' or the common law. | ||
If an employer tells an employee that they will only receive a reference letter if they resign, in order for the employer to avoid liability for severance payments, the employee may be able to make a claim for both wrongful dismissal and punitive damages (''Vernon v British Columbia (Liquor Distribution Branch)''), 2012 BCSC 133). | If an employer tells an employee that they will only receive a reference letter if they resign, in order for the employer to avoid liability for severance payments, the employee may be able to make a claim for both wrongful dismissal and punitive damages (''Vernon v British Columbia (Liquor Distribution Branch)''), 2012 BCSC 133). | ||