Ch.19 Employment and Labour Relations

Question 1

Contract of employment involves:

Answer 1

Payment of wages/remuneration in return for services of the employee

Essential elements of a contract

Fourfold test

Question 2

Fourfold test

Answer 2

a test for employment based on:
Control (how, where, when work performed)
Ownership of tools
Chance of profit
Risk of loss

Question 3

Courts recognize limitation of fourfold test

Answer 3

Organization test

Examine services of employee and ask if they are integral to business or something adjunct or accessory

Question 4

Distinguishing an independent contractor:

Answer 4

Initiative to do the work

Manner in which the work is done

Do they employ others?

Question 5

Checklist of Employment Factors

Answer 5

Fourfold Test:
- Degree of Control
- Ownership of Tools
- Chance of Profit
- Risk of Loss

OR
Overall integral part of business

IF these tests are not met, then the person may be an independent contractor

Question 6

Significance of Distinguishing an independent contractor:

Answer 6

Employee entitled to rights under law and benefits which independent contractor is not

Question 7

Form of the Contract
Contract of employment:

Answer 7

Need not be in writing to be enforceable

May need to be in writing under Statute of Frauds
-If run for a fixed term for more than one year
-Informal evidence is allowed to prove the contract

Many contracts are verbal of indefinite hiring

If employee has access to secret processes or confidential information
Contract usually in writing and with restrictive covenants to protect business secrets

Question 8

Duties of the Employer

Answer 8

Employers cannot contract out of employment legislation
-Most provinces have employment standards legislation which sets out minimum wages, hours of work, overtime, holiday pay, holidays, etc.

Question 9

Two classes of laws:

Answer 9

1. Employee safety and working conditions
2. Terms of employment contract (employment standards)

Question 10

Occupational Health and Safety Legislation

Answer 10

Health and safety legislation dictates that employer must:
-Provide safety equipment, train employees
-In Ontario, employers and individual supervisors have on-going duty to take all reasonable measures to protect health and safety of workers
-Also includes protection against psychological injury and workplace harassment
-Workers have right to refuse unsafe work

Question 11

Employment standards

Answer 11

• Impose minimum requirements of employers
• Parties free to negotiate more favorable terms
  Example: pay above minimum wage or give more holidays

Question 12

Provincial statutes establish for employment standards:

Answer 12

Minimum wage rates
Hours of work o Conditions for holiday and vacation pay
Termination notice or pay in lieu
Overtime pay
Leaves of absence

Question 13

Human Rights Legislation

Answer 13

Prevent discrimination in hiring or treatment of employees
- Cannot discriminate based on:
-Person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability

Selection process must not consider those factors to any degree, not even alongside other factors

Question 14

Duty to accommodate

Answer 14

obligation of an employer to adjust work for an employee with a recognized disability

Question 15

Bona fide occupational requirements (BFOR)

Answer 15

Can discriminate in hiring process if one can establish BFOR for the position. 3-part test:
- Purpose is rationally connected to performance of job
- Adopted in good faith
- Reasonably necessary

Example: firefighters and physical capability

Question 16

Age Discrimination and Mandatory Retirement

Answer 16

Several provinces have amended legislation to eliminate the right to force employees to retire when they reach age 65

• Can still terminate for other causes or for BFOR
• Termination solely on age is discrimination
  -Under human rights legislation

Question 17

Workplace Discrimination

Answer 17

Employer’s obligation to maintain a discrimination free work environment

• Employers must control discrimination and harassment by employees against other employees
• Legislation includes sexual harassment
  -Employers expected to establish procedures whereby sexual harassment (as well as other forms) brought forward and dealt with
• Employer must avoid work practices that would constitute discrimination (e.g. working hours)

Question 18

Human Rights and Employment Standards

Answer 18

Cannot pay female employees a lower wage than male employees for the same job

Equal pay for work of equal value (some provinces)

Question 19

Pay Equity Legislation

Answer 19

Cannot pay different but similar jobs differently, where one male-dominated another female dominated, considering:

• Skill
• Ability
• Education
• Working Conditions

Question 20

Duties of the Employee

Answer 20

Those specifically set out in the contract

Implied duties:
- Obey all reasonable orders of employer
- Use property or information of employer in careful and reasonable manner
- Keep confidential information confidential
- If has professional or other accreditation, then perform skills to standard of said profession
- To act in best interests of employer

Question 21

Workplace Behaviour

Answer 21

Employees must conduct themselves in manner that does not:
- Bring disrepute to employer
- Put other employees at risk

Employees have right to free speech
- With rise of social media, employees face potential dismissal for damaging or slanderous comments
- Employers should have policy on social media use
-Notify employees of consequences of improper statements and give opportunity to correct behaviour

Question 22

Termination of the Contract of Employment

Answer 22

Notice to terminate a contract of employment is provincially legislated
- Sets out minimum notice period required
-Varies depending on length of service of employee

Common Law
- Both parties obliged to provide reasonable notice of termination
-Adequacy of reasonableness determined by age, length of service, type of position, availability of work

Question 23

Dismissal for Just Cause and Wrongful Dismissal

Answer 23

Employer has right to dismiss employee without notice if employee with just cause

Onus on employer to:
- Establish employee’s actions not condoned by employer
- Termination of employment contract was justified

Question 24

Wrongful dismissal

Answer 24

failure of an employer to give reasonable notice of termination, where no just cause

Answer 25

onus on employer to show

• Incompetence (almost never just cause)
• Grossly negligent in performance of duties
• (Culpable) Absenteeism
• Dishonesty
• Insubordination
• Conflicts of interest
• Off-duty behavior that impacts employer
• Combinations (e.g. substance abuse)

Question 26

When an employee believes they have been wrongfully dismissed:

Answer 26

Employee may sue for failure to give reasonable notice of termination ○ Employee must reasonably minimize their losses

• Damages are equal to loss between time dismissed and the end of the reasonable notice period
• Purpose is to place the employee in same position had the employee been given proper notice
• Awarded extra compensation where actions of employer caused employee undue mental distress

Question 27

Punitive damages only awarded for bad faith dismissals

Answer 27

Dismissed employee must show:

• Wrongful dismissal
• Employer’s actions were “harsh, vindictive, reprehensible or malicious”

Question 28

Larger damage awards made if employer dismisses employee:

Answer 28

In particularly insensitive or callous manner

Makes false accusations concerning employee

Question 29

Employer need not terminate employee directly to constitute dismissal

Answer 29

Constructive Dismissal

Question 30

Constructive Dismissal

Answer 30

employer termination of a contract of employment by a substantial, unilateral change in the terms of the conditions of employment
- Change: e.g. demotion or relocation
- Mistreatment: e.g. harassment, employer dishonesty

Remedy for constructive dismissal is money damages

Question 31

Cyber-Law Aspects of Employee Management

Answer 31

Electronic business and information exchange increasingly becoming legal issues

Examples: employees engage in harassment through email accounts, create blogs that defame employer, hack into unauthorized areas of IT system or use system for illegal or unethical purposes

Employer should exercise control by clearly expressing operation policies for IT use

Question 32

Employee Misrepresentation (Wrongful Hiring)

Answer 32

When an employer induces an employee to join the employer based on misrepresentations of job duties or the position
- Employees can take legal action based on tort of negligent or fraudulent misrepresentation
- Employee must establish that:
-Employer clearly misrepresented position
-Statements made fundamental to accepting position
-Suffered some loss as result of misrepresentation

• Companies should not exaggerate the job or position at time of hiring

Question 33

Employer may be held liable for any loss or damage suffered by a third party as a result of:

Answer 33

• An employee’s failure to perform a contract
• Negligence on part of employee that causes injury or loss

Question 34

Vicarious liability on employer for acts of employee

Answer 34

Employees seldom possess financial resources to compensate third parties

Liability limited to acts of employee within ordinary scope of employee’s duties

Question 35

Test: if within the scope of the employee’s job

Answer 35

Does not include acts outside the employee’s duties (note: misconduct including sexual harassment are outside scope)

Question 36

Workers’ Compensation Legislation Historically

Answer 36

Employees faced a dilemma

Problems existed in employee suing either employer or other employees of the employer
Success may lead to dismissal or financial drain on the company
Employer may argue employee voluntarily assumed risk or that it was an injury due to employee’s negligence

Question 37

1897 – Workmen’s Compensation Act; now (in Ontario) Workplace Safety and Insurance Act (and Board)

Answer 37

Compensates injured workers on no-fault basis (i.e. automatic)

Administrative: no need for lawsuit; simple

Employees covered by Act lose right to sue employer

Mandatory in dangerous industries; optional for other employers

Effectively public insurance company – no employer insolvency risk