'You can't rush into these things; they need to be carefully drafted'
Getting a job candidate to sign on the dotted line can be more challenging today because judges are placing increased emphasis on contract language, says an employment lawyer.
This is making the job of HR much more complicated, so having effective legal counsel is key.
“The issue that we have seen in the last two years is that even what was a validly executed and drafted employment agreement has come under scrutiny, and the individual provisions have not survived judicial interpretation,” says Lorenzo Lisi, partner and leader of the workplace law group at Aird & Berlis in Toronto.
“What that means to employers is that what they thought was a deal is no longer a deal and provisions of the employment agreement which they thought they could rely on were no longer enforceable.”
Lisi recently sat down with Canadian HR Reporter and shared some thoughts about what makes or breaks an employment contract.
It all starts with a pre-agreement plan, says Lisi.
“The fact is that like any contract which binds you, you can’t rush into these things: They need to be carefully drafted.”
The importance of updates
Recently, a number of employment contracts have been declared invalid by courts, so it’s also important to review the document language to be sure those provisions pass legal muster, says Lisi such as the recent Waksdale case.
“The biggest trend in development is that where that language is older doesn’t comply with some of the recent case law. You need to make sure that you’ve updated it and you’re aware of the language that will work.”
“That is not a guarantee that some court down the road may not find that the language isn’t great. But at the at the end of the day, you need to make sure that the language you have right now is currently is currently compliant,” he says.
