We have already blogged about the general requirement to provide reasonable notice or pay in lieu when and employer terminates an employee (see link here: Common Law Notice in British Columbia – Carter Litigation ),
But is there anyway to get around this requirement?
Yes, an employer can alter the amount of notice or pay in lieu required to be given to an employee by the use of a written employment contract that specifically sets out the amount of notice or pay that needs to be given to the employee upon termination. The employee would of course also have to agree to and sign the written contract.
However, no one can contract out of the Employment Standards Act so the lowest amount of notice or pay that can be set out in a written employment contract would have to mirror the requirements of the Employment Standards Act. If the contract tried to impose notice lower than the Employment Standards Act then a court would hold the entire clause to be null and void and apply common law reasonable notice. That said, the ability to limit notice to about 1 week per year of service up to a maximum of 8 weeks’ under the Employment Standards Act is a significant advantage to the employer when we consider that common law reasonable notice is closer to one month per year of service with an upper limit of 2 years.
The best time for an employer to roll out an employment contract is at the very beginning of the employment relationship, as a condition of employment. Employment contracts can be deployed to existing employees, but they must be provided along with something of new value, such as a raise or an additional benefit, or a court would not uphold the contract due to a lack of new “consideration,” a legal word for exchange of something of value.
If you are an employer, you should consider seeking legal advice on drafting and deploying employment contracts to protect your business. If you are an employee, you should be aware of your rights and how they are affected before signing an employment contract, and seek out legal advice if you are terminated and the employer relies on a written contract to see if there are any legal ways to avoid the contract terms.
Please contact one of our lawyers to see how we can help you.