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# 5 Forgetting that common law principles also apply

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After three months’ hiatus, I’m back with the second half of this series. Given the delay, I suspect some may need to have their memories jogged (pull out those sweatbands!). Without further ado, I invite you to have a gander at “Where HR Professionals Get It Wrong: Employment Counsels’ Collective Musings”.

What I find most interesting about these musings is how closely connected many of the various topics seem to be. Accommodation and termination appear to be the over-arching themes. An HR professional worth his or her salt would do well to become an expert in both these areas (to the extent anyone ever can…).

Although we have very little information, I suspect today’s topic was intended to be focussed primarily on common law principles that apply on termination. I’ve already written an entire post on that topic as part of this series in #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 3). I’m going to propose we delve into less familiar (and more interesting) territory.

Redux: Employment Relationships Are Contractual

I would refer my kind reader once more to #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 3) to remember that all employment relationships in Ontario (and Canada, for that matter!) are contractual. Where there is no written contract in place between the parties, the common law imports a number of obligations into the contract. Even where the parties have a written employment contract in place (or an offer letter, as is more often the case in the employment context), where the contract is silent on certain topics, the common law will still apply and bind the parties.

Rights of the Employer

In other words, an employee’s obligations. Interestingly, most of us instinctively know many of these while others are a little more unfamiliar. Without providing an exhaustive list, the most common employee obligations that come into play are:

  • Duty to Obey: Yup, an employee is legally obligated to obey all lawful directions of her employer. Shocking, I know! Fun fact – this was historically referred to as the duty of “subordination”, which meant “to submit to”. Ergo the expression “insubordination” – the failure to follow orders. This made a lot more sense when “the law of master and servant” was more common than “employment law”.
  • Duty to Attend: Employees are expected to be available for work and attend at the place and time directed by the employer. An employee cannot be absent from or be late for work without the employer’s permission. Failure to obtain the employer’s permission to be late or absent is referred to as being absent without leave (AWOL).
  • Duty of Competence: It is expected that an employee will have the requisite skills and knowledge to perform their job duties and meet the reasonable objective performance standards established by the employer.
  • Duty of Respect: Although often confounded with the duty to obey, our courts continue to draw a distinction between insubordination (a failure to obey) and insolence. Insolence is described as contemptuous, scornful, abusive or insulting behaviour by an employee directed at the employer (i.e. the supervisor or manager).
  • Duty of Loyalty: Sometimes referred to as the duty of fidelity, this duty encompasses a number of behaviours expected of the employee: protect the employer’s confidential information and trade secrets and use them only in the furtherance of their work, not compete with their employer, and act in the best interests of their employer in any business dealings.

Rights of the Employee

Employees are also afforded a number of protections under the common law. We’ve previously discussed protections afforded in the event of termination of employment. In addition, employers have the following obligations in relation to their employees:

  • Duty to Maintain a Safe Workplace: The law has long recognized an employer’s obligation to take every reasonable precaution to ensure employees have a safe workplace. This includes the duty to train, supervise and manage employees.
  • Duty to Provide Work: Oddly, but truly, an employer is required to provide employees with the amount of work they promised them. Nine to fivers have a legal right to expect to be provided with work during those times.
  • Duty to Pay: This one’s pretty self-evident…an employer is legally obliged to pay an employee for all work done by the employee. This means that, in the case of an hourly employee, the employee must be paid for all hours worked.

The Importance of Being Written

This all seems rather inoffensive so why worry about written employment contracts? Well, in addition to the reasons laid out in previous posts, all the duties above can be modified or reinforced by way of a written employment contract. There will be occasions where it is absolutely in the employer’s interest to broaden the scope of its own rights as well as the employee’s obligations:

  • I discussed earlier the duty of the employer to provide work. An employer’s failure to do so can result in a constructive dismissal. This will typically arise where an employer tries to temporarily layoff an employee. In a non-unionized context, a layoff, even when temporary, is considered a breach of the employer’s duty to provide work and results in a dismissal (crystallizing all of the employee’s rights on termination).
  • In a similar vein, where an employer decides to terminate an employee but provides working notice, it will not have the right to send the employee home during that working notice period (i.e. there is no right to garden leave in Canada). Sometimes, an employer wants to be able to resort to garden leave because it ensures that an employee cannot compete during the period of garden leave (because the duty of loyalty continues to apply).
  • The Copyright Act provides that any copyright will vest in the employer if a work is created “in the course of employment”. However, the employee retains all moral rights in that copyright, which can be exercised by the employee at any time unless expressly waived by a written contract.
  • The outcome is much less certain with respect to any patents, since patents usually vest in the inventor unless there is an express written agreement in place clearly indicating that the employer owns the patent rights.
  • The duty of loyalty only prevents an employee from competing with the employer. Subject to that limitation, an employee is free to have as many jobs as they want and be as involved in volunteerism as they wish, potentially to the detriment of an employer who may wish to ensure that the employee’s time and attention is not taken away from their work.
  • Similarly, the duty not to compete only applies during employment. Except for fiduciary employees (and there are very few of these), an employee is free to compete with the employer and solicit former clients and employees, unless there are written non-competition and non-solicitation provisions that apply after termination in place.

All of these things can be addressed in a written employment agreement, which is why it’s always a good idea to consider one. Of course, there’s a whole checklist of issues that you’ll need to turn your mind to when deciding what needs to be discussed in an employment agreement, which is why employment counsel should be involved at the outset to ensure that your interests as an employer are protected to the maximum extent possible.

Adrian Ishak

Related blogs in this series:


About the Author: Toronto Employment Lawyer Adrian Ishak’s practice focuses on all aspects of employment law including employee relations, terminations, wrongful dismissals, employment contracts, and employment policies. He provides strategic counselling on a number of human resources, privacy and human rights issues. With a joint Ontario and Québec call and with experience in both jurisdictions, Adrian guides his clients through employment standards matters, pay and employment equity, and human rights obligations in Canadian common law and Québec’s civil law jurisdiction. Adrian represents clients in both English and French.