“I will not recommend agreeing to anything beyond ‘The organization will direct the following three people not to disparage the former employee,’ said Kuzz. “That way, the organization’s obligation is to provide that direction, not take responsibility for whether they obey it or not – you provide that direction and you’ve satisfied your obligation.”
Riley noted that it’s a good idea to cover potentially disparaging conduct at the beginning of the relationship, particularly for a public organization for which the ramifications could be significant.
“I find it helpful to have these types of clauses in there to remind employees that even if they don’t think something is necessarily disparaging, it could have far-reaching effects,” she said.
Temporary layoffs
The topic of temporary layoffs came up in the session, with Whitten pointing out that it’s a common misconception that because employment standards legislation typically contemplates temporary layoffs, it’s implied as part of the employment agreement.
“We all learned this in the pandemic, that unless it’s an express term in the employment agreement or in an employment manual the employee has acknowledged they’re bound by, layoffs aren’t something an employer can automatically do, and it can trigger a constructive dismissal claim,” said Whitten, noting that a non-profit organization relying on funding to determine whether it can keep certain employees could use a well-drafted severance provision that could terminate the relationship if project work or funding dries up, with the expectation that the employee is free to come back if funding resumes.
