Generally, no. When an employee is represented by a union, they cannot bring a court action against their employer. Instead, they must pursue a remedy through the internal grievance and arbitration process, and they require the assistance and approval of the union to do so.
A union is not obligated to bring any particular grievance. If it does bring a grievance, it has exclusive responsibility over the grievance, and its overarching obligation is to the membership as a whole, not to an individual member.
However, a decision not to assist a particular employee or to pursue a particular grievance must not be arbitrary, discriminatory or in bad faith. Section 12 of the Labour Relations Code sets out the duty of fair representation a union owes to its members. Arbitrary, discriminatory or bad faith decisions amount to breaches of this duty, and in such cases the member would have a right to seek a remedy against their union.
The Labour Relations Board of British Columbia has compiled an excellent guide into the duty of fair representation. The guide also outlines questions and answers to help you determine if your representation rights have been breached.
An employer can prevent former employees from using its confidential information; however, they generally cannot prevent former employees from competing. The exception would be where the employee and the employer entered into a narrow, specific, and limited written agreement that expressly prohibited such competition. These types of agreements are legally known as restrictive covenants.
To be enforceable, a restrictive covenant must be reasonable. To be reasonable, it cannot be ambiguous – what is prohibited must be clearly set out in the covenant. The Supreme Court of Canada has stated that in the employment context, a court should not read down or otherwise narrowly interpret an overly broad or ambiguous restrictive covenant (Shafron v. KPG Insurance Brokers (Western) Inc., 2009 SCC 6). One reason not to read down an employment law restrictive covenant is to promote fairness.
Employment contracts are treated differently than other types of contracts. This is because of the unique power differential seen to exist in the employment context, the importance of providing appropriate incentives to employers, and a desire to protect employees. The need to protect an employee from an unreasonable restraint of trade is grounded in the longstanding principle that an employee is free to trade on the skill and knowledge of the employee, even if this skill and knowledge is acquired during the course of employment (Maquire v. Northland Drug Co.,  S.C.R. 412).
Generally, clauses that seek to prohibit someone from competing with their former employer are difficult to enforce. Case law suggests that a number of factors will be considered when assessing whether the restrictive covenant is reasonable; for example, whether the restrictive covenant protects a legitimate proprietary interest of the employer and whether the prohibited conduct is only that which is necessary to protect that interest. Also relevant is whether the restrictive covenant is reasonable in terms of the length of time it operates and the geographical region in which it operates.
From an employer perspective, if you wish to protect yourself against future competition from your employees, it is wise to craft a narrow and specific restrictive covenant into your employment agreement. While on the surface this may appear to reduce the protection the clause affords, in the long run the protection is likely greater as the clause is far more likely to be enforced.
Different tests can apply where a former employee is using confidential information to compete. Check back for a future FAQ on this topic.
Variations to existing employment contracts require new consideration to be enforceable. The promise of continued employment, without any additional benefit to the employee, is not enough.
Examples of valid consideration in the context of a continuing employment relationship would be a promotion, additional remuneration or a signing bonus. To qualify as consideration to support a change in the employment contract, any such promotion, raise or bonus (or other benefit) must be distinct from any annual raises or bonus that would have received in any event even if they had not entered into the contract.
To form a valid, enforceable contract, three things are required: an offer, an acceptance, and consideration. Consideration, in legal terms, means that both parties must have given up something in exchange for the bargain reached. This can be as simple as the promise of the employee to work and the promise of the employer to pay the employee for their work.
An employment contact can be written or unwritten. Where issues of confidentiality exist or an employer wishes to protect itself against future competition from a former employee, it is preferable to execute a written contract. A written contract can also set out what constitutes reasonable notice on dismissal.
The terms of an employment contract can include the duties the employee is expected to perform and when they are expected to perform them. It can also include prohibited conduct either during or after the employment relationship. Written contracts also often set out the terms of how the employment relationship may be brought to an end, and whether any notice or compensation that the employee is entitled to at the end of the relationship is limited to the statutory minimums set out in the Employment Standards Act. Generally, both parties will be bound by the terms of the written agreement.
In the case of an unwritten contract of employment, when disputes arise a court will generally read in terms, often referred to as “implied terms”, based on what the court believes the parties would have agreed to had they sat down and negotiated a written contract. Common implied terms include the provision of reasonable notice or compensation in lieu in the event of termination.
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