If a headhunter lies to a candidate, can the employer be held liable? • Can an employer terminate a new hire before he starts working? • Reasonable notice without an employment contract
If a headhunter lies to a candidate, can the employer be held liable?
Question: Our company uses a headhunter when recruiting. If a headhunter makes a misrepresentation to a potential employee during the hiring phase which induces the employee to join our company, can we as the employer be held liable for such misrepresentations?
Answer: The fact a headhunter has performed the recruiting activities for the employer does not necessarily relieve the employer of potential liability. Liability may extend to the employer if a negligent misrepresentation is made on the employer’s behalf, even if the employer itself did not make the misrepresentation. The courts may view such a misrepresentation by the headhunter as being a misrepresentation of the employer.
Employers must be aware of such potential liability and may consider entering into contracts with their headhunters to define the relationship and to indemnify the employer of any liability arising from the recruitment activities of the headhunter.
Can an employer terminate a new hire before he starts working?
Question: Due to changes in the business, we no longer have a need for an employee who is supposed to start next week. We wish to terminate his employment before he starts. What do we do?
Answer: Sometimes employers assume that because the employment has not started yet, their obligations to the employee have also not yet begun. But in a situation where an employer hires an employee and the employment contract has been signed, but prior to the start date the employer company’s plans change and the job opportunity is eliminated, an action can be brought by the employee for anticipatory breach of contract against the employer.
If the employee can establish an offer was made and accepted, that the employer has communicated it will not follow through on the contract and there is a lack of justification for such conduct, the employee may succeed for damages for the breach. The employee will, of course, have to prove the value of the damages that she has sustained.
An employer may be able to defend such a claim by showing a justification for the repudiation of the employment contract. The employer may also be proactive and offer positions of employment on a conditional basis, which could protect the employer in the event the employment opportunity does not materialize at all.
It is also important to note such a circumstance may include other issues such as inducement and negligent misrepresentation. Accordingly it may be wise to consult with an employment lawyer to discuss the particular facts involved before taking any action.
Reasonable notice without an employment contract
Question: I’ve been working at the same job for nine years, but I never signed an employment contract. I was dismissed last week, and paid eight weeks’ salary in lieu of notice. I know that’s enough termination pay under the Employment Standards Act, 2000, but I’ve heard I may be entitled to more. Is that true?
The Employment Standards Act, 2000, (ESA) sets out the minimum notice periods employees and employers are entitled to agree to in employment contracts. It is designed to give employees a basic level of protection from agreeing to unfair notice provisions as a result of their weaker bargaining position. Therefore even when an employee’s employment contract states he is entitled to less notice that required by the ESA, this provision of the contract will not be enforced by the courts. But it will not be replaced by the ESA minimum requirements.
When the employment contract has no notice provision, or where it has an unenforceable notice provision, the common law rules will determine the employee’s entitlement to notice. The common law rules are generally more generous than the ESA minimums.
The common law determines notice entitlement based on job position, length of service, salary and age of the employee. In theory it is intended to represent the amount of time it would take the dismissed employee to find a new job in a comparable position at a similar salary. Executives will be entitled to longer notice periods, in recognition of the difficulty of finding new executive positions, and older employees will receive more notice as it may be harder for them to find employment. An employee with nine years of service may be entitled to anything from five to 18 months’ notice, depending on other factors.
If you are interested in pursuing the issue, it is a good idea to speak to a lawyer who will help you determine the viability of your claim.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].
Question: Our company uses a headhunter when recruiting. If a headhunter makes a misrepresentation to a potential employee during the hiring phase which induces the employee to join our company, can we as the employer be held liable for such misrepresentations?
Answer: The fact a headhunter has performed the recruiting activities for the employer does not necessarily relieve the employer of potential liability. Liability may extend to the employer if a negligent misrepresentation is made on the employer’s behalf, even if the employer itself did not make the misrepresentation. The courts may view such a misrepresentation by the headhunter as being a misrepresentation of the employer.
Employers must be aware of such potential liability and may consider entering into contracts with their headhunters to define the relationship and to indemnify the employer of any liability arising from the recruitment activities of the headhunter.
Can an employer terminate a new hire before he starts working?
Question: Due to changes in the business, we no longer have a need for an employee who is supposed to start next week. We wish to terminate his employment before he starts. What do we do?
Answer: Sometimes employers assume that because the employment has not started yet, their obligations to the employee have also not yet begun. But in a situation where an employer hires an employee and the employment contract has been signed, but prior to the start date the employer company’s plans change and the job opportunity is eliminated, an action can be brought by the employee for anticipatory breach of contract against the employer.
If the employee can establish an offer was made and accepted, that the employer has communicated it will not follow through on the contract and there is a lack of justification for such conduct, the employee may succeed for damages for the breach. The employee will, of course, have to prove the value of the damages that she has sustained.
An employer may be able to defend such a claim by showing a justification for the repudiation of the employment contract. The employer may also be proactive and offer positions of employment on a conditional basis, which could protect the employer in the event the employment opportunity does not materialize at all.
It is also important to note such a circumstance may include other issues such as inducement and negligent misrepresentation. Accordingly it may be wise to consult with an employment lawyer to discuss the particular facts involved before taking any action.
Reasonable notice without an employment contract
Question: I’ve been working at the same job for nine years, but I never signed an employment contract. I was dismissed last week, and paid eight weeks’ salary in lieu of notice. I know that’s enough termination pay under the Employment Standards Act, 2000, but I’ve heard I may be entitled to more. Is that true?
The Employment Standards Act, 2000, (ESA) sets out the minimum notice periods employees and employers are entitled to agree to in employment contracts. It is designed to give employees a basic level of protection from agreeing to unfair notice provisions as a result of their weaker bargaining position. Therefore even when an employee’s employment contract states he is entitled to less notice that required by the ESA, this provision of the contract will not be enforced by the courts. But it will not be replaced by the ESA minimum requirements.
When the employment contract has no notice provision, or where it has an unenforceable notice provision, the common law rules will determine the employee’s entitlement to notice. The common law rules are generally more generous than the ESA minimums.
The common law determines notice entitlement based on job position, length of service, salary and age of the employee. In theory it is intended to represent the amount of time it would take the dismissed employee to find a new job in a comparable position at a similar salary. Executives will be entitled to longer notice periods, in recognition of the difficulty of finding new executive positions, and older employees will receive more notice as it may be harder for them to find employment. An employee with nine years of service may be entitled to anything from five to 18 months’ notice, depending on other factors.
If you are interested in pursuing the issue, it is a good idea to speak to a lawyer who will help you determine the viability of your claim.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].
