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2275 Final > Module #6: Employment Law > Flashcards

Module #6: Employment Law Flashcards

1
Q

Employment Law

A

law of master and servant

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2
Q

Three factors that have changed the ways employees are treated now

A
  1. the development of the middle class
  2. women in politics
  3. introduction of labor unions
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3
Q

Distinguishing between employment and independant contract

A
  1. vicarious liability
  2. employment legislation
  3. income tax deductions
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4
Q

Independant Contractor Example

A

plumber who fixes sink

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5
Q

Control Test

A

who controls the work that is done, who decides where/when/how the work is done

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6
Q

organization test

A

how integral/important is the person to the organization, the higher this is, the more likely it is a employment relationship

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7
Q

All other factors

A

risk of loss, written agreement, the person working has their own tools, written agreement is one of many factors

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8
Q

Obligations of Employers

A
  1. pay salary or wages
  2. honor employment contract
  3. provide safe working conditions
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9
Q

Obligations of employees

A

work competently
be on time
be loyal
fiduciary duty (maybe) - legal interest to act solely in the best interest of the other party

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10
Q

Termination of employment with cause

A

an employee is not entitled to notice of termination or severance pay

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11
Q

Termination with cause reasoning

A

employee can be dismissed on the spot immediately / breach of contract by the employee that is serious enough to void an employee contract (essentially what it is)

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12
Q

Examples of sufficient breach of contract

A

serious misconduct, dishonesty, insubordination, chronic absenteeism, sexual harassment, conflict of interest

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13
Q

What degree should misconduct rise to to become cause

A

violates an essential condition of the employment contract
breaches the trust/faith that is inherent in the working relationship
fundamentally inconsistent with the employee’s obligations to the employer

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14
Q

Significant Seniority

A

pay, severance (trying to terminate these types of people = lawsuit)

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15
Q

Progressive Discipline

A

aka verbal reprimand, written reprimand, suspensions and then you can terminate for cause

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16
Q

Termination without cause

A

must be in good faith and it must be for business reasons

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17
Q

Two sets of obligations on the employer (without cause)

A

must provide ESA notice and severance
must provide reasonable notice → usually longer than notice required under the employment standard act

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18
Q

ESA Notice

A

-1 week/year of employment, max of 8 weeks
-notice can equal notice of payment, termination or both

19
Q

ESA Severance

A

1 week/per year, max 26 (if annual payroll is greater than/equal to 2.5 million and 5+ years employment) -both conditions have to be met

20
Q

Severance Payout

A

lump sum

21
Q

What if employee violates ESA?

A

employee can go to ministry of labor and obtain an order requiring employee to pay

22
Q

What is reasonable notice based on?

A

age
seniority
skills, training, education
ability to find alternative employment

23
Q

Wrongful Dismissal

A

failure to provide reasonable notice
termination on bad faith
discrimination

24
Q

Bardal Damages

A

equal to notice of termination that you should’ve received but didn’t
the weeks/money that they didn’t receive

25
Q

Punitive Damages

A

emotional distress / mental anguish (need to show medical proof/actual damage)

26
Q

Wallace Damages

A

terminated by humiliation and disrespect (not a thing anymore)

27
Q

Lower level courts and wallace damages

A

lower level courts follow wallace damages even though the supreme court has enforced not to

28
Q

Why do lower level courts still follow wallace?

A

the lower courts hear firsthand from witnesses the mental anguish they go through

29
Q

Constructive dismissal

A

when the employer changed the nature of the job without the employee’s consent, causing the employee to resign

30
Q

Why do employers use constructive dismissal?

A

employees do this to avoid money associated with firing an employee

31
Q

Damages for constructive dismissal

A

damages applied would be the same as terminating an employee without cause

32
Q

Costs of dismissal - what to think of

A

need to think about all costs of the dismissal (non-monetary costs - value of closure, sending a message to other employees)
think about the big picture
avoid litigation (ex employees are very bitter and vindictive)

33
Q

Employment Standards Act

A

-minimum wage
hours of work, overtime, breaks, vacation
pregnancy and paternal leaves
equal pay
termination and layoffs
layoffs are not permitted if not written out

34
Q

Human Rights Legislation

A

prohibits discrimination
requires accommodation
prohibits sexual harassment
may result in fines or re-instatement
have to proactive when it comes to discrimination and harassment

35
Q

Other employment legislation

A

health and safety
pay equity
employment insurance
worker’s compensation
BIA, WEPA, etc

36
Q

Collective Bargaining

A

individually an employee has no bargaining power
one voice=greater bargaining power

37
Q

What are unions protected by?

A

unions are protected by law in Ontario and Federally

38
Q

Organization and certification of union

A

more than 50% have joined the employees then the union is certified

39
Q

Union - Agency Relationship

A

union = agent
employees = principal

40
Q

What is bargaining based on?

A

agency, must bargain in good faith

41
Q

Mediator regarding union

A

either side can get a mediator before a strike or lockout

42
Q

Collective bargaining agreement

A

both sides agree (must last at least one year)

43
Q

Collective bargaining agreement terms

A

sets out all terms like termination and vacation - becomes NEW employer contract

44
Q

How are unions ran?

A

democratically run/equally

2275 Final (5 decks)

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