Week 8: Chapter 19 Flashcards
Master and servant relationship
Masters historically liable for the torts of their servants when they were committed in service of the master
No mutual consent or equal bargaining power
The fourfold test to determine if it’s an employment relationship or independent contractor
- Control - who has control over the work?
- Ownership of Tools
- Chance of Profit - an employee doesn’t share in the profit
- Risk of Loss
This is no longer used
The organization test
A test used to establish whether a worker is an employee or independent contractor; examines whether the worker is providing services integral to the organization’s business
They’re an employee if the “employer” controls what tasks they do and how they do them
Employment (independent contractor vs employee)
A contract FOR services = An independent contract
A contract OF services = an employment contract
Form + contents of the employment contract
Doesn’t need to be in writing to be binding
May contain provisions restricting use of confidential information, to protect business secrets
May also contain restrictive covenants, such as non-solicitation clauses and non-competition clauses
Can restrict the use of confidential information, cannot prevent employee from exercising learned skills
Duty of the Employer: Safety
Occupational Health and Safety Act
- Working conditions, regular inspections, protective equipment, ability of employee to refuse to do work, - Sanctions against employer and often supervisors personally – rare
Duty of the Employer: Follow employment standards legislation (provincial)
Governs minimum wage, maximum hours, holiday and vacation pay, termination notice, severance pay
Varies province to province
Human Rights legislation surrounding employment
Prohibits discrimination by, race, creed, colour, place of origin, nationality, sex, age
Includes handicap if not related to job performance
Employer is obligated to accommodate people until the point of undue hardship
Duties of the employer: Compensation at common law
Employer must pay the employee in return for their services, and indemnify them for any expenses incurred in course of employment.
Employer must supply tools necessary to do the work where custom so provides
Employer must provide enough information to allow worker to calculate remuneration where necessary, ie., where other than hourly rate or salary, ie., bonus structure
Duties of the employee
Perform the specific duties set out in the employment contract
Obey all reasonable orders from employer that fall within scope of employment
Must keep confidential info confidential
Must spend hours of employment doing employment work
Where employment based on special skill, employee required to exercise skill, liability to employer where breach
Senior executives special duty to employer
Senior level employees can have a fiduciary position to the employer on top of their normal obligations
Termination of employment
- An employment contract may provide for its own discharge (as when the contract is for a fixed term, say one year, and that term expires), or the parties can mutually agree to bring it to an end
- Most contracts of employment are for an indefinite period of time with no reference to notice requirements
In general, such contracts of employment can be terminated (1) by either party giving reasonable notice, (2) by the employer giving the compensation that should have been earned in that notice period (pay in lieu of notice), or (3) immediately with just cause
Pay in Lieu of Notice
An amount paid to a dismissed employee in place of notice to terminate since they likely wouldn’t want to work the notice period anyways knowing they’ve been fired
Reasonable Notice for Termination
Both parties are obliged to provide reasonable notice of termination
Reasonableness is a question of fact, dependant on ○ Nature of contract, Method of payment, Type of position, Length of service, Custom of business, Age of employee
Just Cause
A valid reason to dismiss an employee without notice
Wrongful Dismissal
Termination of employment without reasonable cause and without notice or pay in lieu of notice
Criteria for an Action For Wrongful Dismissal
The action is to receive payment in lieu of notice
The reasonable notice period would be determined as a question of fact
In order to qualify for the action the plaintiff had to actively mitigate the damage to them (i.e. look for a new job)
“Employees at will” and its exceptions
Employees at will means an employer can terminate any employee
An employee cannot be legally fired if it’s discrimination as defined by Human Rights Code
- if this happens employee can file action for wrongful dismissal