Employment Law Flashcards
Describe control test.
Control test- Degree of Control exercised over an employee is greater than over an independent contractor;
Four aspects of control were considered:
1. The employer’s power of selection of the employee;
2. Whether the employer paid wages;
3. The employer’s right to control the method of doing the work; and
3. The employer’s right to suspend or dismiss the worker.
What is entrepreneur test?
Control test became inadequate when situations arose involving highly trained workers; where employer did not control the professional or highly skilled worker in how they did the task.
New test needed to be developed called the “entrepreneur test” or the “fourfold test”.
Under this approach, the courts consider the question of “whose business is it” by examining the following factors:
1. Control (as in the “control test”);
2. Ownership of tools;
3. Does the individual have a chance of profit; and
4. Who bears the risk of loss?
What is organization test?
The “organization test”, or as it is also known, the “integration test” or the “economic dependency test”.
Looks at the integration of the worker into the employer’s business and asks: “Is the person an essential part of employer’s organization?”
“If the answer is “yes”, then the worker will likely be considered an employee.
Example: Photocopy machine repairman vs. secretary the law firm
What are some of the obligation of the employer?
Pay Safe workplace - Physical safety - Harassment free - Discuss case re manufacturing client and harassment
What are some of the obligations of the employee?
Competent
Honesty and loyalty (ex: of employee misrep. graduated with degree)
Punctuality (example of former secretary)
Act in employer’s best interests
Fiduciary obligations (in some cases)
Vulnerability test applied to determine if fiduciary or not
a fiduciary has ability to affect the employer’s interests through the use of discretion.
fiduciary has added obligations during and after the employment relationship:
(i) to refrain from taking advantage of maturing business opportunities for which the employer has been negotiating; and
(ii) to refrain from soliciting former customers or clients for a reasonable period of time after the termination of employment.
Describe termination?
Where no just cause, reasonable notice of termination is required of both employer and employee (unless written contract provides specifically)
Employer is required to give reasonable notice or pay in lieu of notice
May dismiss an employee with notice for any reason unless it violates human rights legislation
What is reasonable notice?
Reasonable notice – legislation (BC ESA) sets minimum standard (See s. 63)
In setting reasonable notice, courts consider:
-Length of service
-Type of job
-Age of employee
-Qualifications
-Availability of similar employment
-Bad-faith conduct
An employee discharged without adequate notice can sue for wrongful dismissal
An employee can leave without notice when required to work in dangerous conditions or when work involves immoral or illegal activities
What is just cause?
Just cause dismissal requires no notice
Dismissal without notice must be based on employee wrongdoing or a failure to perform: (i) summary dismissal or (ii) performance related dismissal
Ex: theft, assault, gross negligence; theft and the like
Ex: tardiness, quality of work, failure to take direction and the like (ex: former secretary)
What is constructive dismissal?
Employment contract may be breached when the nature of job changes or working conditions become intolerable.
Compensation based on reasonable notice, lost benefits and pension rights
Employee must mitigate losses
What are employment standards?
Statutes (ESA) designed to protect employees by setting minimum standards for:
Wages
Hours of work, overtime, and rest periods
Vacation and holiday entitlements
Maternity and parental leave
Termination pay
