1E9Ct5D

contract law is that the parties should beheld to the bargain they struck.All employment agreements, materials andpolicies that address the terms andconditions of the employment of employeesshould be drafted in clear and unambiguouslanguage. Employment materials shouldalso be brought clearly to the attention ofemployees at the time of hiring andemployees should be given time to carefullyreview them before accepting employment.Employees should execute theiragreements before commencingemployment.Termination clauses: establishing a clearnotice period to limit future liabilityEmployers who want to limit their liability foran employee’s notice period may considersetting out a specific notice period in theiremployment agreements. When noticeperiods are not set in advance, terminationcan result in uncertain – and usuallyexpensive – obligations (i.e. the commonlaw reasonable notice period).Where notice provisions of an agreementare drafted properly and satisfy minimumstatutory obligations for termination, theemployment agreement may prevail,notwithstanding what the employee mighthave been entitled to at common law.Clauses that set notice periods must becarefully drafted with consideration forclarity, legality, and effectiveness to ensurethat a reviewing judge or other authorityupholds the intent of the parties. Wheretermination clauses are ambiguous oruncertain, they will not rebut thepresumption of common law reasonablenotice upon termination.Restrictive covenants: non-competition andnon-solicitation clausesCovenants not to competeDepending on the particular employmentrelationship, an employer may restrictformer employees from becoming engagedby a competitor, or becoming a competitor,immediately following termination orresignation.Courts have held that these clauses mustbe reasonable, and often refuse to upholdnon-competition clauses where the natureof the employee’s employment does not callfor such a clause to protect the interests ofthe employer, where the clause covers toobroad a geographic scope or where theclause restricts competition for anunnecessarily long period of time.Non-compete clauses are more likely to beupheld where the employee was a fiduciary(i.e. one who held a senior position or whohad access to sensitive information aboutthe employer’s business that might allowthem to compete unfairly with their employerfollowing employment), or where anemployee was formerly an owner and soldthe business to the employer.Non-solicitation of employees andcustomersAgreements containing non-solicitationclauses are more readily enforceable inCanada than non-competition clauses, asthey are less restrictive in nature. Suchclauses, however, will still be subject to aEmployment and Labour Law 103