Employment: Reading Between the Lines: Implied terms in individual employment contracts.

• Author: Bowal, Peter
• Position: Columns

Employment Reading Between the Lines: Implied terms in individual employment contracts

Peter Bowal and Christina Tang

Famous Cases 43 Charter of the French Language: Quebec v Blaikie

Peter Bowal and Christina Tang

Housing

46 An Update on Short-Term Rentals

Judy Feng

Human Rights

50 Equality Issues and Assisted Death Legislation

Linda McKay-Panos

Law and Literature

53 Re-opening the Case of L'Etranger

Rob Normey

Not-for-Profit

55 Registered Charity Policy Advocacy: Rules beyond the Income Tax Act

Peter Broder

Plain Language

57 What is Plain Language?

Dave Pettitt

Youth & the Law

59 Sexting: What's the big deal?

Jessica Steingard

In Canada, every non-unionized employee has a contractual relationship with their employer. What does that contract look like?

Employment contracts may be written or oral, or both. When you sign and return a letter offering you a job, the terms of the letter are the written elements of the contract. That letter usually "incorporates by reference" employer manuals and policies into the contract.

Other people are hired--and agree to terms--on the telephone or orally in an in-person interview. You can agree to your job title and responsibilities, rate of pay, benefits, supervision and starting date in a conversation with your employer.

Characteristic of written and oral employment terms is that these matters are expressed. These terms are identified, highlighted and communicated. The attention of both parties is specifically drawn to them.

As it turns out, there are many things the parties do not express, or even think about. Still, the law will imply these unspoken and unwritten terms into an employment contract. These matters may be so obvious that both the employer and employee just assume they are part of the job ("implied in fact"). Alternatively, they are imposed by legislation and are not negotiable in any event ("implied in law").

Since an employer and employee do not discuss or agree upon implied terms, it is important to be aware of them. Implied terms can form the basis of wrongful dismissal lawsuits. This article describes the two different sources and some examples of implied terms in employment contracts.

Terms Implied-in-Fact

Terms will only be implied if they are necessary to make sense of the employment contract (business efficacy test). The origin of this test can be traced back to the 1889 English contract case called The Moorcock which established that judges can read in terms that give business...