Non-Competition and Non-Solicitation Clauses

 

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Otherwise known as 'restrictive covenants', non-competition and non-solicitation clauses can have an immense impact on your ability to succeed in the workforce should your relationship with your employer end. Fortunately, both non-competition and non-solicitation clauses in Alberta are unenforceable by default unless your employer can prove reasonability with respect to:

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1. Time frame;

2. Scope of activity restricted; and

3. In certain circumstances, geographical area covered by the restriction(s).

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Non-competition clauses tend to be more all encompassing than non-solicitation clauses. While non-competition clauses tend to restrict all forms of activity potentially in conflict with your former employer, including reemployment in that industry, non-solicitation clauses typically limit your ability to actively recruit old, existing or prospective employees and/or clients of your former employer.

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 constructive dismissal covers any situation where an employer unilaterally alters a fundamental term or condition of an employee's rights in an employment arrangement, to the point where an objective person would find continued employment intolerable. The three most common forms of constructive dismissal involve salary decreases, demotions and/or the creation of a hostile work environment, but can include a variety of other factors.

 

In cases involving potential constructive dismissal, time is of the essence. Alberta courts typically allow an employee roughly a week or two to challenge their employer on unilateral change(s) to their employment agreement before the employee is deemed to have 'acquiesced' or accepted the change(s). Like with any contract, if one party breaches the agreement, the other party has the option to treat the contract as being repudiated, or move forward with the relationship. If they wait too long, they risk losing their claim.

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That is not to say that you should not speak with an employment law firm just because several weeks or months have passed since your employer imposed a unilateral change to your working conditions. Many constructive dismissal scenarios are pre-meditated by the employer, introduced to you piece meal over time, and are intended to squeeze you out of the company until you voluntarily resign. Indeed, constructive dismissal is also sometimes called 'dismissal by disguise'.

 

At minimum, speaking with a constructive dismissal specialist can leave you equipped to protect yourself in the future; for example, by actively protesting in writing any future changes to your contract and establishing a paper trail.   

 

A constructive dismissal requires an employee to formally resign from his or her position in writing. It is important that the written resignation letter does not give the impression that the employee is voluntarily choosing to leave, or is doing so on good terms. Employees who involuntarily resign sometimes receive severance, employees who voluntarily resign almost never do. It is typically a good practice to include the term 'constructive dismissal' right in the letter to avoid any confusion as to why you are leaving.

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It is important to contact an employment law attorney as soon as possible after you realize you may have a constructive dismissal claim, but before you resign. There are no hard and fast rules about what constitutes a constructive dismissal. Each case depends on the unique facts at hand. This is why it is important that you talk to an experienced employment specialist as soon as possible after an incident has occurred, but before you resign.

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Constructively dismissed employees are typically granted the same remedies as employees who have been terminated without cause. Visit our page on 'wrongful dismissals' for more information. 

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