Written or Oral Contracts - Free Essay Example

Employment is a relationship between an employers and employees. This relationship is extremely important, as it becomes a part of our daily life. Aside of being a professional relationship, in many cases it becomes a personal and expressive one. In todays work place, if the conditions of employment are excellent, and the employees are treated with fairly, it is more likely that they will be pleased, and their productivity will increase. However if the environments in the work place are poor or not suitable, we will have the total opposite results. To avoid any complications or misunderstandings between employers and employees, this relationship is governed by rules and laws. The basis of these rules is the ESA (Employment Standards ACT), of which the human resource managers and top management should be fully aware of. In the unionized world, the negations of a collective agreement will clarify all the specifics between management and employees. In the non-unionized world, these s pecifics are controlled in an employment contract, weather this contract is of a fixed-period of time or indefinite. When a vacancy is created, by a shortage of employees or market demand, the management will try to fill this position(s) with the best qualified person(s) for the job. In order to do this, the management must consider the changes in the marketplace, which helps the management hire the best qualified amongst the applicants. Job description is a written list of duties that the company expects it employees to perform. This will help the employer to follow up on the performance of the employees. This way if an employee is performing to the specific requirements outlined by the job description, may be a subject for discipline. However an excessively specific list of duties can have an opposite result, for example if a management delegates a duty not specified in the job description he/she may face a liability for constructive dismissal. In order to avoid these conseq uences, an employer may add that the job could include additional duties. When the vacancy is created, the management may choose to redefine and update the job description according to the companys need, without being in violation of constructive dismissal. In this phase, there are important issues to be discussed. The first issue is the monetary or remuneration offered to the selected person. This includes salaries, bonuses, benefits, pension plan, employee discounts, etc. In defining the pay level, the employer must be careful to follow the guidelines of the law when it comes to pay equity to both men and women performing the same job. They also should be aware of the minimum rate of pay set by the government of each province. The next stage is to determine the conditions of the employment. The employer can offer the hired person a written or oral contract for an indefinite period of employment. Another option is a fixed period contract, at the end of which the employer has the choice of renewal or termination without any legal consequences. The employer must consider all the options that are beneficial to the company. He/she have the option to hire and independent contractor to do the job. After the managers have made their decision about the job description, remuneration and the terms of employment, they will be ready to advertise for the position. In the managements efforts to advertise for hiring new employees, the managers, must be careful not to use words prohibited by the Human Right Legislation. They should also try to reach different groups of applicants. These prohibited grounds are: race, sex, sexual orientation, color, ethnic origin, place of origin, disability, religion, age, marital or family status. Managers should know that the Ontario Human Rights Commission states that employment should be based on the applicants ability and not on other factors. Once the managers have understood all the requirements of the job and all the restric tions imposed by the Human Rights Commission can go ahead and draft the application forms. During the application and interview stage, the management is able to ask potential employees to provide them with information of any health problems. The management can inquire of any reason that might prevent an employee to perform his/her duties. If the employer would like to go into medical testing, they should wait until the decision to hire the person is made. Testing should only be performed in direct relevance to the job performance. Hiring the employer is now ready to offer the successful candidate a position with the organization. Both mployer and employee should set out the standards of their employment relationship. Before the new employee starts, the employer should set the specific duties that can help to enforce variable issues in the relationship. Before an employer hires an employee they should keep in mind the potential minefields that can be avoided. When hiring a new emp loyee you must make sure that the new employee does not have an existing employment contract with his/her current employer. This will help ensure that you will not be liable for any legal action against you for inducting breach of contract. In cases where an inducing breach of contract occurs, the former employer will have to prove that the current employer acted deceitfully or in bad faith. The current employee must have a valid argument against the claim. The current employer will have a defense if they can prove that by hiring the new employee they acted bona fide and in the best interest of the company. Negligent Misrepresentation when hiring a potentially new employee you are obligated to explain what is expected of the job they are being hired for as well as the nature of the job. If false statements or inaccurate statements are made that would mislead the potential employee to believe otherwise about the nature of the job in his/her interest and he/she suffers damages, the employer is at legal risk. Employers should consider the possible legal risks involved when guaranteeing a potentially new employee a better position when hired while they are currently employed. If the employee leaves their current job in expectation of having a better job with the new employer based on the facts that they were promised a greater position or pay etc. and the new employer does not follow through, the employer may be at legal risk for damages caused by alluring and enticing the new employee. Employers can minimize legal risk by having what the job specifications and what it has to offer clearly in writing in the contract. They should also recommend that the new employee acquire legal advice before accepting terms of employment. Takes place when an employer or employee decides not to go with the employment contract. Legal risks can be minimized in the situations of anticipatory breach of contract, if in the contract specifies, that due to a ertain event or events the contract may be broken, the employer or employee then will not be held liable if such events were to take place. There are two types of contracts when engaging into an employment relationship, written and unwritten. A written contract will give the employer a level of security when discussing reasonable notice terms as well as the expectations and duties to be performed my the new employee. An unwritten contract of employment is still a legally binding agreement of employment. In cases of dispute it will be up to the court to decide what the terms of employment were. When drafting a new contract there are two essential requirements, consensus and consideration. If one or both do not exist a contract is not valid. The contract should consist of the parties names, the date that the contract begins, the specification of what the job requirements are and the nature of the job, and the period of the employment contract. Once the drafting is complete the employer will discuss the t erms of employment. Two main types of terms are fixed and indefinite periods. If the employer decides on a fixed period of employment he/she must also consider if they want to renew the contract at the end of the period. If the employer states that the contracts is indefinite, this means that the employer is giving an opportunity to his/her employees to stay with the company as long as they wish providing that they comply with the terms of employment. The term of employment should also state the termination and severance pay. The performance review benefits both the employer and employee. These reviews should be conducted every so often to evaluate the employees strengths and weaknesses. All evaluations should be conducted in a fair and truthful manner. This is essential to both the employer and the employee because it lets the employee know what areas to improve on. This is an essential tool for the employer because if he/she sees no change with the employee in the areas the employee were lacking in, a may provide a reason for dismissal. When conducting a salary review the employer should keep in mind that it should be performed separately from performance review. The employer at no time is obligated to grant regular salary increases, unless it is agreed upon in the employment contract. On the other hand pay decreases cannot breach the employment contract as well. If a pay decrease were to take effect, the employee must be given reasonable notice. In cases were a fixed term contract ends and the employer continues to employ the employee without renewal the original contract will lapse. This can cause a problem to the employer when it comes to such decisions as termination or severance pay as they now may have to provide more notice sine they now are being governed by the common law. If an employee is hired based on an indefinite period he/she may dismissed at any time without cause as long as the employer gives notice of termination or pay in lieu of notice. If an employee is hired based on a fixed term, the relationship is ended at the end of the contractual terms. If the employee is terminated or dismissed before the contract has ended, the employer is at legal risk for breach of contract. Reasonable notice is given to employees, to allow them to find an alternative employment. The amount of notice is based on the characteristics of the employment, length of service, age, availability of employment opportunities, and inducement to join organization. When there is just cause to dismiss an employee, reasonable notice is not needed. The employees conduct must have essentially breached the employment contract. Example of such a breach would be: serious misconduct, habitual neglect of duties, incompetence, etc. In cases were just cause is a direct result of a single act; the act must be that of serious nature such as stealing, fraudulent conduct, lying to the employer, etc. Situations were just cause for termination was a re sult of buildup of less serious incidents, the employer must have gave the employee warning for dismissal so that    the employee has a chance to improve. When an employee is dismissed as a result of habitual negligence of duty such as constant absenteeism and lateness, the employer has just cause to terminate as long as the employee was given several warnings. Incompetence on the other had is the lack of skill, ability, knowledge or qualifications to perform the employment obligations. As mentioned previously once again the employer must give the employee a warning and a chance to improve before dismissing them. Wrongful dismissal occurs when the employer terminates the employee without just cause, without reasonable notice, or if the employee has been constructively dismissed. In all situations the employer is at legal risk by the employee. If legal action is taken against the employer, the employee may be entitled to the following: the amount of salary he/she would have r eceived as part of reasonable notice, benefits the employee would have been entitled to during the notice period, other damages for losses, and punitive damages if the employer acted in bad faith. In conclusion, employers or managers should consider all areas of employment law when beginning new employment relationships to minimize legal risks. Employers must remember that the onus of proof is on them to show, that the employee breached the employment contract. When potentially dismissing employees, employers must be positive that there is just cause for termination and their judgment is based on either breach of contract or poor job performance rather than personal differences.