I Have No Contract of Employment: What Are My Rights?achkarlaw-admin
In Ontario, any agreement for an employee to perform work on behalf of an employer creates an employment relationship. When hiring new employees, employers will usually set out, in writing, the specific terms of that employment for the employee to agree to in. The employer would then have a written record of the employee’s job duties, start date, and other obligations agreed to. Employers additionally tend to update or amend employment contracts over time, to ensure they remain compliant with any changes to the law. However, there are cases in which an employee may not have a signed written employment contract with their employer. As such, those employees may have concerns over whether they are legally able to work without an employment contract.
Are You Able to Work Without An Employment Contract?
Employees without a written employment contract have nothing to worry about, as they are in fact legally able to work for their employer. In this situation, the employment relationship would operate under a verbal employment contract. The verbal employment agreement will contain implied terms of employment that are governed by the Employment Standards Act, Ontario Human Rights Code, and the common law.
The protections found in the Employment Standards Act can apply to employees working under a verbal employment agreement, although in some cases the common law would apply instead. The employer would still be required to provide a workplace environment free from discrimination in order to avoid violating the employee’s Human Rights.
Potential Risks Of Working Without An Employment Contract
Employers and employees should keep in mind that if the terms of the employment relationship are not found in writing, it may be difficult to prove the existence of certain terms in Court should a dispute arise. The Court would have to make a decision on the existence of certain terms based on the credibility of those involved, which can be highly subjective.
As mentioned above, the lack of a written employment contract can also prevent the employment relationship from being strictly governed by the Employment Standards Act. One such example is the employment contract’s termination clause. The law confirms that an employee with a verbal employment agreement is entitled to common law reasonable notice upon the dismissal of their employment. Common law reasonable notice can be significantly higher, and more costly, than the notice of termination set out in the Employment Standards Act.
Implementing A Written Employment Agreement
Where an employee has commenced employment under a verbal employment agreement, employers should tread carefully before attempting to implement a written agreement to replace it. If an employer tries to limit the employee’s entitlements under the common law created by the verbal employment agreement, the implementation of a written replacement agreement could be considered a constructive dismissal. Employers should speak with an employment lawyer prior to the implementation of a new written employment contract or the dismissal of an employee working under a verbal employment agreement.
If you are an employee and have questions related to your verbal employment agreement or an employer with employees operating under a verbal employment agreement, our team of experienced workplace lawyers at Achkar Law can help.