In Ballim v. Bausch & Lomb Canada Inc., the Ontario Superior Court of Justice determined that Samina Ballim was wrongfully dismissed by her employer, Bausch and Lomb Canada Inc., on the basis that she was terminated before the expiration of the term of her fixed-term contract of employment.
Ms. Ballim discussed the possibility of employment as a Sales & Trade Marketing Coordinator with Bausch and Lomb Canada Inc. to replace an employee who was going on maternity leave. She was ultimately selected for the job and received an offer by email. In the email containing the offer, the employer stated “It is a one year contract. You will receive benefits.”
Just over a month after commencing her employment, the employee requested a month-long compassionate care leave. The employer granted the leave, but terminated her employment without cause upon her return to work. At the time of her termination, the employee had three months’ service and the employer paid one weeks’ notice under the Employment Standards Act, 2000 (ESA) in addition to two weeks’ pay on a gratuitous basis.
By way of summary judgment, the Court had to determine whether the employee was employed on a fixed-term or indefinite basis. In holding that she was a one-year fixed-term employee, the Court reasoned:
- the email to which the offer was attached constituted part of the employment contract as it was a representation by the person with the authority to make the offer to induce Ms. Ballim to accept the position;
- the email stated that it was a one-year contract;
- the offer indicated that the employment is on a “contract basis”, and that the employee’s bi-weekly remuneration will be in 26 installments;
- there was no mention in the employment agreement and covering email of maternity leave or that the contract could be terminated earlier with or without notice; and
- there was no “entire agreement” clause in the employment agreement.
The Court held that such a fixed-term contract obligated the employer to pay the employee until the end of the term and that this obligation was not subject to mitigation of damages. The employer was ordered to pay the employee 38.5 weeks’ pay and benefits representing the balance of the one year contract. The employee was also awarded her costs.
Fixed-term employment contracts can be a solution to fill short-term positions however; they must be carefully drafted in the event that the Employer wishes to terminate the contract prior to the end of its term. The inclusion of a clear termination clause in the contract would have led to a different conclusion in this case.