Employment Terms That Are "Harsh And Oppressive" Require Additional Notice

In Battiston v. Microsoft Canada Inc., 2020 ONSC 4286, the Ontario Superior Court held that a contractual provision (that unambiguously excluded the employee's rights to unvested stock awards after he was terminated without cause) was unenforceable because the employer failed to sufficiently draw the particular provision to the employee's attention. As a result, the Court awarded the employee damages in lieu of his stock awards that would have vested during the notice of termination period, thereby increasing the employer's severance costs.

This is a noteworthy decision for employers as it emphasizes that well-drafted contractual provisions which purport to limit an employee's entitlements (in this case, to post-termination vesting of stock option awards) may not be sufficient to withstand judicial scrutiny where those contractual provisions are considered harsh and oppressive. The decision in Battiston suggests that additional steps should be taken by employers to