If you have a potential legal issue related to your employment, the first question you must ask is: what are my rights as an employee? Put another way: what are the terms and conditions of my employment? Those terms and conditions will determine what you are entitled to if you are fired, or whether the employer can change your working conditions without your agreement. The terms of your employment come from three general sources: your employment contract; the common law; and employment-related legislation.
Your Employment Contract Terms and Conditions
The foundation for the employment relationship between you and your employer is your employment contract. This contract can be verbal or written—as long as there has been an offer of employment on certain terms, and an acceptance of that offer, a contract of employment will be formed. No matter the form of your employment contract, you should review its terms and conditions carefully to ensure you understand them.
In some circumstances, the terms in an employment contract may be found invalid by the courts. For example, if the terms in the contract violate employment standards legislation, discussed below, those terms will be considered void. In rare cases, courts may also find that a term in an employment contract is unconscionable (grossly unfair to the employee, and agreed to as a result of an overwhelming imbalance in bargaining power). When interpreting an employment contract, if a term in the contract is ambiguous and open to multiple interpretations, courts will favour the interpretation that is more favourable to the party that did not draft the contract (usually, the employee).
If you are unsure about the terms and conditions of your employment contract, or their validity, you should seek legal advice from an employment lawyer.
The Common Law
In addition to the terms and conditions that are “expressly” set out in your employment contract, there are also terms and conditions that are “implied” under the common law (a set of legal principles developed through court decisions). If a certain employment right is not addressed through an express term in your contract, it may nonetheless be implied under the common law.
The most common example of an implied term of employment is the requirement for employers to give reasonable notice to employees upon termination. It is possible that your employment contract states how many weeks or months of notice you are entitled to in the event you are terminated; however, if your contract is silent on that point, then your entitlement to notice of termination is determined through common law legal principles. (See our article on “What is Reasonable Notice?” for more information.)
There are many implied terms in the common law, which impose obligations on both employees and employers. The primary implied obligations for employees are to attend at work and perform the work assigned to you. Employers also have implied obligations, such as the duty to pay employees for work performed, and, as mentioned above, the duty to provide reasonable notice of termination.
It is important to remember, however, that it is possible for you and your employer to agree to terms and conditions in your contract that differ from the common law principles. In order for those different terms to be accepted by a court, they must be clearly stated.
Both of the above sources of rights and obligations—the employment contract, and the common law principles—are subordinate to legislation (written laws passed by the federal Parliament or provincial legislature). Unlike common law principles, employers and employees cannot agree to terms of employment that violate legislation.
The main legislation that relates to your employment is employment standards legislation: for employees regulated under Ontario law, the relevant legislation is the Employment Standards Act. This legislation establishes a “floor”, or a minimum set of employment standards, which your employment contract cannot fall below. This legislation addresses many terms of employment, including wages, hours of work, holidays, and the minimum required notice of termination. As mentioned above, if a term in your employment contract falls below the minimum employment standards, it will be considered void by the courts.
It is important to note that certain types of employees, and certain industries, are excluded from employment standards legislation, which means its terms do not apply to those employees. Some employees are subject to federal employment standards legislation, because they work in an industry that falls under the federal Parliament’s jurisdiction. Advice from an employment lawyer should be sought to determine which legislation applies to you.
Other legislation is also relevant to your employment, including legislation in the following areas: occupational health and safety; privacy; workers’ compensation; and human rights. An employment lawyer can help you understand which legislation applies to you, and how it may impact your employment issue.
Your rights as an employee come from many sources, and as a result understanding your rights is no easy task. These rights will impact a claim you may have for wrongful dismissal, constructive dismissal, or other breaches of your employment contract. The best way to fully understand the terms and conditions of your employment is to review them with an employment lawyer, and obtain advice on how your contract, the common law, and legislation all interact to determine your rights as an employee.
We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are unsure of the terms of your employment, or are considering making a claim for wrongful dismissal.
[The following information applies to non-unionized employees. Unionized employees should consult their union representatives to review questions regarding the terms of their employment. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]