Many Toronto condominium corporations take on the role of ‘employer’ when hiring staff to work at its building, most often when hiring a superintendent (live-in or live-out). The relationship between the condo and the employee should be defined by a written employment agreement. At a minimum, the agreement should address the essential terms of the relationship, including:
- job description and expectations
- days/hours of work
- superintendent suite tenancy (if applicable)
- termination of employment - cause for dismissal and notice period
- duty to mitigate losses if terminated
- clear instructions for speaking to or dealing with owners
There are 5 key points-in-time at which the Board will want to have the condominium corporation’s lawyer involved:
- Preparing the employment contract.
- If changes to the employee’s job are being considered.
- Disciplining an employee, with an intention to build a case for a dismissal for cause.
- Considering dismissing an employee, but prior to doing so.
- Preparing a termination letter and settlement documents, and for advice on conducting a termination meeting.
The most difficult part of being an ‘employer’ is the termination of an employee. This can be a complicated and sensitive matter, and must be done properly or the condominium corporation could face liability. Many factors come into play, including the terms of the employment contract, common law notice periods, how the termination is performed, whether the employee is being terminated ‘for cause’ or ‘without cause’, what happens after termination, and settling amounts to be paid to an employee when terminated.
Toronto condominium lawyers are taking note! A recent Toronto condominium case drives home the principle of vicarious liability of an employer for its employee's actions in the condominium context.
In this case, a superintendent forcibly removed a real estate agent from the lobby of a Toronto condominium, including dragging her over the threshold of the entrance, pinning her down and putting his hands around her neck. The real estate agent sued the condominium corporation, the superintendent and the property management company for damages for physical injuries, pecuniary losses, and aggravated and punitive damages. In finding that the superintendent did not have the grounds on which to physically evict her from the lobby, the judge determined that the condominium corporation and the superintendent were jointly and severally liable and awarded general damages of $30,000, aggravated damages in the amount of $8,500, pecuniary damages in the amount of $10,000 in favour of the plaintiff.