Question

Case Discussion : Business Law :

Trindent Consulting International Inc. v. Logsdon, 2018 ONSC 1696 (CanLII) Trindent was incorporated in Wyoming, with its head office in Toronto. It had no physical operations in Wyoming. An Ontario corporation oversaw the management, human resources, and administrative functions of Trindent from its Toronto offices. Logsdon was a US citizen resident in Texas. Trindent made an offer of employment to Logsdon as a manager in its Toronto office. The salary was in US dollars. The governing law of the contract was the law of Ontario. There was no forum selection clause. Logsdon accepted the offer. He did not provide services to any clients located in Canada. His initial interview was in Toronto, where he also attended for training sessions and meetings with management. Logsdon resigned and sued Trindent in Texas for breach of the employment contract. Trindent filed a defence to that action and then commenced this action in Ontario, suing Logsdon for breach of the employment contract. Logsdon applied to stay the action, claiming Ontario was not a convenient forum. Did the Court stay the action? What factors did it consider in making its decision?

Answer 1

Australia: Employment contract breached? What can you do?

15 November 2017

by Mark Cox

MDC Legal

1 Liked this Article

When does an employment contract exist and what are the terms?

An individual contract of employment exists between the employer and each individual employee, whether it is written or not, as soon as an employer and employee agree to enter into an employment relationship.

What Are the Terms of an Employment Contract?

Employment contracts include express terms – which are those that have been expressly agreed between the parties, either verbally or in writing, for example an employee's salary. Written employment contracts usually make the identification of express terms much easier – as the terms are set out in a written document signed by both parties. However, there are circumstances in which terms may have been agreed that are not reflected in the employment contract. This should be avoided and, ideally, written employment contracts should contain a clause to the effect that the written contract reflects the entire agreement between the parties.

Employment contracts also include implied terms – which are terms that the parties have not necessarily agreed, but are implied into the contract by custom and practice, by common law and or by statute. Examples of implied terms include an employee's duty not to misuse an employer's confidential information, and an employer's duty to provide employees with a safe workplace.

Australian Employment Legislation

Individual employment contracts are also governed by legislation (such as the Fair Work Act, or state, territory or federal Acts dealing with long service leave, occupational health and safety, workers compensation, and a range of other matters), which set various minimum terms, remedies and regulatory frameworks for employment conditions and workplace relations.

Individual employment contracts may also adhere to an industrial instrument, which is a creature of statute, such as an award (covering groups of employers and employees across a specific trade or industry) or enterprise agreement (a collective agreement between groups of employees across the workplace). These industrial instruments provide a statutory framework within which each employment contract operates, regardless of what is agreed between each employer and individual employee. They are not enforced in common law, but rather through various statutory jurisdictions.

When does a breach occur?

A breach of an employment contract occurs when an employer or employee fails to honour the terms of the individual employment contract. Where such a breach occurs, the innocent party may be entitled to sue in common law for the damage suffered as a result of the breach – the aim of damages being to restore them to the position they would have been in if the breach had not occurred.

If the breach is serious, it may entitle the innocent party to terminate the contract without notice, and if loss has been caused, sue for that loss.

In many jurisdictions, in addition to suing in common law courts, employees can sue in specialist state or territory commissions for contractual entitlements. For example, in Western Australia, employees who earn less than the statutory high-income threshold can claim in the WA Industrial Relations Commission for Denied Contractual Benefits.

One of the differences between a common law claim and a claim in a specialist statutory jurisdiction is that costs are typically not awarded in claims brought in specialist statutory jurisdictions.