September 16, 2010

About the Author

  • Robin Kersey

    Robin is Co-Chair of the firm’s Labour & Employment Practice Group and a member of the firm’s Management Committee.

    rmk@tdslaw.com
    (204) 934-2501

In Canada, 31.2% of all employees are covered by very detailed, comprehensive agreements which govern every aspect of their relationships with their employers – all those unionized workers in Canada who are subject to current collective agreements. It is interesting, however, that a relatively small percentage of those who are in positions senior to the unionized employees, or who work in a totally non-unionized environment, have written employment agreements. This deficiency is a result of both resistance on the part of employers and employees to entering into formal written agreements and a failure on the part of lawyers to market the virtues of employment agreements.

The most compelling reason to enter into a written employment agreement is the same reason which causes most other agreements to be recorded in writing – to ensure that the parties are, in fact, in agreement and, most importantly, to attempt to avoid disagreements later as to the relevant terms, by recording them in writing. Notwithstanding these compelling advantages, employers and employees are often hesitant to engage in the process of negotiating written agreements, for three main reasons:

  1. The time and anticipated expense involved in doing so;
  2. A lack of appreciation of the advantages of a written agreement; and
  3. A desire (particularly on the part of the employee) to not appear to be suggesting that there is a lack of trust of the other party.

The reality is that the savings which can be generated by a written employment agreement far outweigh the costs of negotiating and preparing the agreement. From an employer’s perspective, a properly worded termination provision addressing what is to be paid to the employee in the event of a termination without cause can result in a very significant saving. An agreement avoids the costs associated with litigation and, with a long service employee, the saving involved by paying an agreed amount at the lower end of an appropriate range can be in the tens of thousands of dollars, which is a terrific Return on Investment relative to the costs of implementation of the agreement.

Occasionally, I have heard some clients (of other lawyers, of course, never my own) complain about the costs of litigation. In the employment context, there is a simple remedy – use properly drafted Employment Agreements and avoid a trip to the courthouse!


DISCLAIMER:
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

While care is taken to ensure the accuracy for the purposes stated, before relying upon these articles, you should seek and be guided by legal advice based on your specific circumstances. We would be pleased to provide you with our assistance on any of the issues raised in these articles.