Employment & Labour

Agreed-upon terms must be followed

Whether all terms of an employment agreement will be enforced is an issue that comes before courts, says Toronto lawyer Michael Wright.

BlackBerry Ltd. recently won a lawsuit to keep one of its most senior executives, at least temporarily, from moving to Apple Inc. BlackBerry claimed its former executive vice-president Sebastien Marineau-Mes violated the terms of his contract by resigning without adhering to a clause that required him to provide six months’ notice. The Ontario Superior Court sided with BlackBerry, and Marineau-Mes must now wait until his six-months’ notice expires on June 23 before he can join Apple, the decision says.

“The BlackBerry employment contract that was before the court required this member of senior management to provide six months' notice of his resignation. While a number of legal arguments were raised by the employee, ultimately the court held that there were no reasons to set aside the agreement of the parties,” Wright, of Wright Henry LLP, tells AdvocateDaily.com.

“In response to numerous court decisions setting aside non-competition provisions, BlackBerry decided to address this issue with a six-month notice requirement for resignations. While the employee alleged that the six-month requirement was the equivalent of a non-competition provision, the court rejected this argument because BlackBerry was still paying the employee and because it said that it might require his services during this period,” he says.

"This is what the employee agreed to, and he received a promotion and a salary increase as part of the agreement, and so the court was not prepared to interfere with the agreement.”

There can be enormous pressure to agree to such terms when accepting a position, says Wright.

“Even a member of senior management may have little ability to successfully negotiate with respect to such terms, but the bottom line is that employees need to obtain advice so that they have a full appreciation of what their rights and obligations are in such circumstances," he says.

"As firms attempt to address the unwillingness of courts to enforce non-competition provisions, they are using a variety of mechanisms to prevent employees from leaving to compete," says Wright. "Employees often believe that none of these clauses

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