When an employer puts an Annual Performance Review clause in a employment contract with an employee, are they obligated to provide that performance review yearly? Would failure to provide one, breach the contract and render it null and void? Is there case law in regards to this?

Hello pete:

You bet there's legal precedent in contract law.. But, a lot more detail is needed first...

Instead of asking the question with NO context, please tell us WHAT happened, what your contract says about a breach, and why you really want to end your association.

Then we might be able to help. Who knows? The real reasons might be grounds in and of themselves.

excon

I've been terminated without cause, and the employer wants to apply the terms of severance in the contract, which are less than what the provincial average reward is. I was just thinking that the employer should not have the right to have his cake and eat it too. Certainly if he's failed to meet the terms of the contract on one side, he can not argue that I should accept his severance offer based on my signing that contract.

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Originally Posted by petertully

Certainly if he's failed to meet the terms of the contract on one side, he can not argue that I should accept his severance offer based on my signing that contract.

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Hello again, pete:

Maybe, almost, could be, but not quite... There's all sorts of possibilities in the law here. Yes, they didn't provide you with a performance review... But, did you complain about it THEN? If not, it could be argued that you waived your right under the contract...

Look, pete. I don't know how lawyers would argue this in court. But, that brings up my next question. No matter who wronged who, what are you going to DO about it? Are you going to sue them? I don't know what your contract was for or how much it was worth. Maybe you have huge damages and SHOULD sue them.

Certainly writing them a letter isn't going to persuade them, but I don't know how much leverage you have.

excon

PS> (edited) I note that you say you were fired WITHOUT cause... Then your contract MUST give you LOTS of leverage. It MUST. What does it say?

I agree that I should have asked for a performance review. I made the assumption that things were going great and even received a raise. And although I was handed a termination letter that stated without cause, it was a draft letter that was prepared, almost a year ago, clearly indicating that they were dissatisfied with something. A performance review would have given me a heads up.

I guess I was naïve in thinking, that I was doing good when clearly they thought otherwise. There are other circumstances, regarding my position and my professional code of ethics that came into play, that pissed them off. They expected me to do things which in my mind were not legal. But I guess, the all incompassing Dismissing without Cause rules in Canadian law apply, that the employer is not obligated to admit that there was a cause, when in fact there was. They just don't have to state their reasons when firing someone and can argue that their severance offer complies with their employment contract with me. A performance review clearly would have given me fair warning.

Hello again, pete

That's why I wanted you to tell me the details... IF they did expect you to do illegal things, THAT is the breach. The, not giving you a heads up because they didn't like it, wasn't the breach.

Plus the fact that you have a written document from them telling you that they have NO cause, when there absolutely IS a cause. I've never been in a contract where one party can unilaterally end it with NO reason. You MUST have recourse... Please tell me MORE of what your contract says. Was it written by them? That makes it even BETTER for you.

Screw your little severance.. You might be able to get the value of the entire contract..

I think it's time to see a solicitor.

excon

Yes the contract was written by the employer's lawyer and it is more reflective of what they expected from me, protecting their interests. The only parts that pertain to their obligation to me are the Performance and Remuneration Review section and the Termination component which states that " Our employment relationship may be terminated in any of the following ways.
a) by my resignation upon giving the company 30 days advanced notice.
b) by the company, at it's sole discretion, for any reason upon providing you with one month's notice of termination (or payment in lieu of ) for each completed year of employment.
c) by the company without notice or payment, in lieu of misconduct.

I worked for 3 years and 9 months ( 3 years 10 and half months when taking into account vacation time I was still owed. What they offered me was three weeks of benefits and three months salary.

The only other thing that might be considered, is a clause which pertains to my Duty of Loyalty to the company, which states that I must act at all times with a high degree of integrity and to donduct myself in a loyal professional and businesslike manner ( Which I did and was fired for )

Hello again, pete:

I'd visit a solicitor. I think you've got a case.

excon