Some jobs (particularly professional positions) are
not covered by employment standards legislation or are exempt from specific provisions. This varies from province to province and the specific provincial legis- lation should be consulted to determine if the legisla- tion applies as its application will have a significant impact on the employment relationship. Employment standards legislation in all provinces
require employers to provide notice or pay in lieu of notice of termination without cause. Although there are certain exceptions, the requirement to provide no- tice will apply to most employees. Unlike in Ontario and some other jurisdictions, the employment legisla- tion in Atlantic Canada does not require an employer to pay severance pay.
Employers in Nova Scotia should also be mindful of what is referred to as the "ten year rule". The "ten year rule" is unique to Nova Scotia and is contained in s. 71 of the Nova Scotia Labour Standards Code. It provides that an employee who has been employed for ten years or more cannot be discharged or sus- pended without just cause. There are however several important exceptions to this rule. Certain professional employees and other types of employees are exempt from the application of the "ten year rule". Another important exception is where the termination results from an elimination of a position due to lack of work. Although it is not possible to contract out of the minimum statutory requirements in employment standards or any legislation, employers can "cap" obligations at the statutory minimum with carefully worded employment contracts.
Employment Contracts Whether written or not, all employment relation- ships are governed by an an employment contract. It is generally advisable to have a written agreement defining the terms and conditions of employment, particularly those relating to termination of the employment relationship. This should be given to the employee prior to hire (at the time an offer of employment is extended) to ensure enforceability. Employment contracts typically include a de- scription of employment duties, remuneration and other benefits of employment. Contracts may also contain confidentiality clauses and restrictions on post employment solicitation and competition. Having a written employment agreement with clear terms is important as it can reduce disputes at a later time. For instance, where notice provisions are clearly and properly drafted to satisfy minimum statutory obligations for termination, a restriction
on notice of termination in the contract will act to reduce the notice that would otherwise be required at common law. Employment contracts can also as- sist employers by allowing flexibility to modify em- ployment duties and establishing a clear procedure for overtime, thereby potentially limiting overtime claims (so long as the minimum statutory require- ments are met). To be enforceable, all employment contracts must meet or exceed minimum statutory require- ments.
Occupational Health and Safety
Although a full description is beyond the scope of this article, it is important to note that the Atlantic provinces have some of the most stringent legislation in the country dealing with health and safety in the workplace. Nova Scotia took a lead in this area after the Westray mine disaster and substantially revamped its legislation to ensure that such a tragedy in the workplace would not be repeated. The province has recently introduced administrative penalties imposed following workplace inspections where violations have been identified.
Lisa Gallivan Halifax, NS 902.420.3392
lgallivan@stewartmckelvey.com
Mark Tector Halifax, NS 902.420.3358
mtector@stewartmckelvey.com
Harold Smith, Q.C. St. John's, NL 709.570.8895
hsmith@stewartmckelvey.com
Murray Murphy Charlottetown, PE 902.629.4558
mmurphy@stewartmckelvey.com
James LeMesurier Saint John, NB 506.632.2776
jlemesurier@stewartmckelvey.com DOING BUSINESS IN ATLANTIC CANADA WINTER 2011 3
