Employment Law (non-union)
I handle employment law cases for employees and employers in non-union settings.
My work in this area includes advising clients about potential wrongful dismissal claims both before and after a termination has occurred, and advising employers and employees about their rights and responsibilities regarding non-solicitation and non-competition provisions (also known as restrictive covenants) in employment contracts.
Please note that I do not practise in the area of unionized labour law.
Wrongful Dismissal
Part of my work in this area involves advising employees and employers about their employment law rights and responsibilities before any termination happens. For example:
- an employee may begin to sense their employer’s dissatisfaction with them, or fear that the employer is about cut their job as part of a “downsizing,” or find themself being harassed or bullied at work;
- an employer may find itself dealing with an underperforming employee, or a difficult employee, or an employee who is simply unsuited for the job for which they were hired.
In circumstances such as these, it is often helpful to get legal advice before the situation spins out of control. (These situations often prove the wisdom of the old adage that an ounce of prevention is worth a pound of cure.)
If a termination has already occurred, then the first issue is whether the termination was for just cause. There can be many reasons an employer may have been justified in terminating an employee with just cause, some of which may include:
- insubordination (the failure to follow the employer’s reasonable work-related instructions).
- insolence (impertinently insulting).
- tardiness or absenteeism (arriving late, leaving early, or failing to report to work, without reasonable excuse).
- egregious off-duty conduct, or conduct which is prejudicial to the employer’s interests (such as incidents like this).
- theft, fraud, or dishonesty (for example stealing from the employer, falsifying expense accounts, or misstating qualifications or work history in a resume).
An employee dismissed with just cause is not entitled to any period of notice or severance pay in lieu of notice (but is entitled to any outstanding earned pay and vacation pay, and in some cases may be entitled to an earned but unpaid bonus).
If the dismissal was wrongful, then the issue becomes the amount of compensation, if any, the employee is entitled to receive as a result. The factors the court considers include the age of the employee; the employee’s education, training, and experience; the employee’s length of service with the employer; the employee’s prospects for obtaining new employment; and the efforts made by the employee to find new employment.
These cases sometimes have overtones of potential bullying, harassment, or discrimination, or involve an employee suffering from a temporary or permanent disability and might also require a consideration of other remedies available through human rights and workplace safety legislation.
Restrictive Covenants
A restrictive covenant in an employment contract is a provision which is typically intended to restrict an employee’s activities for a period of time after the employment ends. These provisions are usually meant for the protection of the employer.
Employers are often concerned about the risk of expending considerable time and effort over time to train an employee and to bring them up to a good level of efficiency and productivity, only to have the employee then quit and open a competing business “across the street” with the benefits of having learned the employer’s unique business methods and having had access to the employer’s client lists and other contacts in the industry. As a result, many employers now include restrictive covenants in their employment contracts in an attempt to restrict a former employee’s business activities for a period of time after the employment has ended.
For example, an employment contract might contain some or all of these provisions:
- a “non-competition clause” which prevents the employee from competing against the employer within a specified geographic area for some time after the employment has ended;
- a “non-solicitation clause” which prevents the employee from soliciting business from the employer’s past or present clients or customers for some time after the employment has ended;
- a “confidentiality clause” which prevents a former employee from retaining or using copies of the employer’s client lists or other materials related to the employer’s unique business methods, practices, and pricing.
The law applicable to restrictive covenants is quite technical, and the enforceability of any given covenant depends on the specific wording of the provision and on the larger factual situation to which it applies.
In situations where the employment contract contains one or more of these terms, the employee may need advice (either before or after the employment ends) about whether the covenants are enforceable, and about what they can and cannot do during the term covered by the covenants. On the other hand, the employer may find itself facing an employee apparently breaching one or more covenants (or about to do so) and may wish to apply for an injunction to prevent the employee from committing or continuing such actual or potential breaches.
The foregoing is general legal information only, based on the law of British Columbia. Readers should consult a lawyer to obtain specific legal advice about their particular situation.
