Forgot to Sign Employment Contract?
If you forgot to sign or that your fixed term employment contract expires, it's not deadly. There is no statutory obligation to have the Contract of Employment or the written statement of particulars signed. Once the employee has accepted the job, there is a legally binding contract of employment between the employer and the employee.
But there could still be question as to what the terms of employment is, and whether it’s a fixed term versus indefinite employment. To avoid ambiguity, you should have a signed employment contract.
Why Some Workers Have No Employment Contract?
It’s not uncommon for many workers to be without a signed employment contract. This is especially so in the health care and culinary industry. In fact, employment laws don’t require a written employment contract to be in existence for an establishment of an employer – employee relationship. What really matters is that there is an offer, acceptance, consideration and the intention to create legal relations. When an employment contract wasn’t found, the Court will use the Common Law default position to write in the terms of employment when determining what the reasonable notice should be in any given case. Is it highly uncertain? Absolutely. That’s why it’s not recommend to be working without a written employment contract.
Fixed term contract is for a fixed duration, while a permanent position is without an expiry date, and the employee remains employed until being terminated.
But then the million dollar question is what if a fixed term contract expired and there has never been a new employment contract signed between the parties?
Consider the following example:
Peter was the head chef at Tom’s restaurant for ten years. When he first started ten years ago, Peter and Tom had a fixed term employment contract for 2 years. Tom was very happy with Peter’s performance and let Peter stayed on after the contract expired without signing a new employment contract with him. Recently, Tom’s nephew has just graduated from culinary school, and Tom terminated Peter to have his nephew replace Peter. Tom only gave Peter a 2-week-notice, arguing that Peter was a seasonal worker that got paid by the hour, as there was no employment contract. Peter file a lawsuit for wrongful dismissal.
In this case, since there’s no employment contract between Peter and Tom after the fixed term contract expired, the Court is likely to find that Peter was an employee of Tom for 10 years, and that the fixed term contract had matured into a permanent indefinite position based on the course of the dealing of the parties at hand.
The take home message is this – Do Have a Properly Drafted Employment Contract by an experienced employment lawyer to avoid ambiguity and costly litigation.
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