Poorly Worded Employment Agreements Cannot be Corrected
Bad or poorly worded termination clauses will only be rectified under exceptional circumstances. Rectification is a discretionary remedy applied where there is clear and unambiguous evidence demonstrating the parties to an agreement made a mutual mistake when drafting the contract.
While the doctrine of rectification generally requires agreement that there is an error, courts have corrected unilateral drafting mistakes made when putting the agreement to paper where,
- Three is evidence establishing the existence of an oral agreement between the employer and worker. A written agreement may be rectified to make it conform to the real intention of the parties when the evidence is so clear and convincing as to establish a common intention between the parties.
- Allowing one party to take advantage of the drafting mistake would amount to fraud or the equivalent of fraud.
- The correction can be made to the written agreement reflecting the prior words agreed to by the parties.
Rectification restores the original agreement; it will not correct an error or mistake in drafting.
