An employee who leaves to work for a company’s competitor may be sued if their employer believes they’ve broken the written or unwritten terms of their employment contract. It is true that an employee’s obligations to their employer last beyond the last day of work, but that does not necessarily mean that you’ll get sued.
The ongoing written obligations of employees often relate to non-competition or non-solicitation clauses in contracts. These are essentially sections of the contract that are designed protect employers from having their departing employees take their customers or compete against them. Although many contracts include these types of clauses Ontario Courts won’t always enforce them if they are too strict.
An employee’s unwritten obligations are often more important than the written ones. At a minimum these unwritten rules require that a departing employee must return all property to their employer and keep anything that can’t be returned confidential. For a software company this means that beyond returning a company laptop you must ensure you don’t disclose trade secrets or customer lists to your new employer.
Returning all of your employer’s property and respecting their confidentiality is most important. If you’re worried about what’s written in your contract, a Lawyer should be able to review your contract and provide you with advice at a reasonable cost.
Frequently Asked Questions
I own a small events and promotions business. Every so often I get emails from students asking if they could volunteer to learn about the business. I’ve never hired a student because they’re inexperienced but I’m considering hiring one as an intern this summer. I don’t have the budget for a full time employee but I would be willing to pay them a modest stipend. I’ve heard both paid and unpaid internships are illegal in Ontario. Is this true?
In Ontario, the rules around internships are strict and in recent years some employers have been required to change their internship programs as a result. If someone is receiving on the job training from a business they are considered to be an employee of the business under Ontario law. As an employee they are entitled to a minimum wage under the Employment Standards Act so paying them a stipend that does not meet the minimum wage is against the law.
There are two exceptions to this general rule which recognize the educational value of internships. The first is internship programs approved by a college or university which are permitted.
The second exception is internships that meet criteria set by the Ministry of Labour. These requirements include that the intern is receiving valuable training, is not taking someone else’s job, and has not been promised a job after their training. The most important feature is the educational component: the primary purpose of internships is to teach valuable skills, not to provide cheap labour to businesses.
The safest way to ensure compliance with the law is to have an internship approved as part of a college or university program. Alternatively, you should design the internship ahead of time to focus it around training and skills development.
Last month local newspapers reported the case of a McDonald’s employee in Kanata who was dismissed after receiving poor performance reviews. The employee received more than $100,000.00 in court. Why?
The short answer is that the judge in this case found that although the employee’s performance was not perfect the employer did not have “just cause” to terminate her employment contract. If a business chooses to dismiss an employee the employer has to first decide if they have just cause to end the contract or not. Just cause exists when an employee has committed a serious breach of contract such as theft or continually missing work without reason. If the employer does not have just cause then in most cases they have to provide compensation which can equal up to a month of salary for every year of the employee’s service.
Many employers have staff who they believe are poor performers. Performance reviews are often done to encourage better performance but may also be an attempt to build a case for a just cause dismissal. After several poor performance reviews an employer may choose to dismiss an employee for just cause. However, a decision to terminate an employee for just cause can be challenged in court where employers often find it difficult to prove that the alleged breach of contract was serious enough to warrant a just cause dismissal. Poor performance reviews may show that an employee was less than perfect but this alone is usually not enough to disentitle them to some compensation when they are dismissed. Because compensation is typically based on the number of years the employee has worked, the amount owing to dismissed employee can be significant which is what occurred in the case of the former McDonald’s employee.
I have a chronic medical condition which unfortunately has become worse over time. For the last two years I have been receiving benefits through my employer’s disability insurance plan. Recently, the insurer wrote to advise me that the terms of the policy have changed and that they now require additional medical information - why is this happening and am I at risk of losing my benefits?
Most disability insurance policies provided by employers have different coverage for different periods of time. For the first two years of an employee’s disability benefits are generally provided on the basis that you cannot perform the essential duties of your existing occupation. The definition of disability changes after two years in most policies.
One of the first steps in your case is to obtain a copy of the policy from your employer. This policy will usually include a brief description of the criteria that an employee must meet to be entitled to disability benefits. In the vast majority of cases after two years of paying benefits policies will limit an employee’s entitlement to further benefits unless the employee is unable to work in any occupation to which they are reasonably suited.
Because of this change to the disability definition, insurance companies will generally review files and seek additional medical information if someone has been receiving benefits for two years. However, Ontario courts have recognized that whether an individual is able to perform any occupation depends not only on their particular disability, but also their basic skill set and educational background. In many cases insurers won’t cut off benefits once they have completed their review and have received additional medical information. However, if you and your insurer disagree about whether you are capable of returning to the workforce it may be time to contact a Lawyer.