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  • Conner Lantz
    Keymaster
    Post count: 4836

    EEs are based in Calgary, AB, Canada.
    A potential customer of the Employer would like to include language in a contract (between the ER and the customer) that would support the removal of a technical team member (that is to say, any technical employee working on the customer’s contract) due to poor performance. I would assume that if “poor performance” was sufficiently defined, and if the EEs being asked to work this contract were made aware of this clause, then this would better protect the ER from potential claims of constructive dismissal (should they materialize). Thoughts?

    Conner Lantz
    Keymaster
    Post count: 4836

    Point of clarification: I assume you’re talking about  constructive dismissal claims by the employee against the employer, rather than the customer. In other words, the concern is that if the employee were removed for poor performance, he/she may claim adverse impact on his/her employment justifying constructive dismissal.
    The basis for constructive dismissal is unilateral imposition of an unfavorable change or term of employment by the employer. So, if I have an accurate read on the situation and what you’re asking, I’d say that drawing up a clear and fair performance clause and notifying affected employees of its existence may help a bit. A more effective way to insulate against constructive dismissal risk, IMHO, would be to take the extra step and secure the employee’s actual agreement to the clause. Such agreement, as long as it’s fairly negotiated, would take away the argument that the change was unilaterally imposed by the employer.
    Please understand that this is just a personal opinion and not a substitute for legal counsel. So if significant business interests are on the line, talk to a lawyer before making a decision. Glenn

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