Chapter 12: Employment Law

Question 1

Independent contractors definition

Answer 1

a person working for himself who contracts to provide specific services to another

Example: Doctor, lawyer, consultant, plumber

Question 2

Employee definition

Answer 2

a person who has agreed to perform specified services for another, the employer, in exchange for payment

said to be in a master–servant relationship, acting under the direction of the master.

Question 3

Agency definition

Answer 3

one person acts as a go-between in relationships between others

Question 4

The Control Test

Answer 4

The traditional method of determining whether an employment relationship exists is to assess the degree of control exercised by the person paying for the service.

A person who is told not only what to do
but also how to do it is classed as an employee.

But if the person doing the work is free to decide how the job should be done, the position is more likely that of an independent contractor

Question 5

Control Test definition

Answer 5

a test of whether an employment relationship exists based on whether the person being paid for work is told how, when, and where to do it

Question 6

Organization Test

Answer 6

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

Question 7

Agents definition

Answer 7

a person authorized to represent or act on behalf of a principal in dealings with third parties

Example: A sales clerk in a store is both an employee and an agent; a realtor selling housing is likely an independent contractor but also functions as an agent for her client

Question 8

The Law of Employment

LO 12.2 Detail common law obligations of employers and employees

Answer 8

The Law of Employment

LO 12.2 Detail common law obligations of employers and employees

Question 9

The main responsibility of the employer, in addition to payment of wages, is to provide

Main obligations of the employer

Answer 9

1) a safe workplace

2) and good working conditions for the employee.

Question 10

Employment Contract

Answer 10

• includes a commitment by the employer to pay a specific wage or salary
• also set out bonus arrangements, benefit packages, and promises to repay any reasonable expenses incurred

-

Question 11

Fiduciary obligation / fiduciary duty

Answer 11

With some types of jobs, there may also be an obligation to generally act
in the best interests of the employer

But for those senior-level employees who have a fiduciary duty, this duty may continue after the employment ends

Ordinary employees do not have a fiduciary duty and, unless there is a valid restrictive covenant in their employment contract preventing them from doing so, they are free to compete with their former employer as soon as they leave

The employee also has:

• Duty to act in good faith
• A duty to make full disclosure
• A duty to take corporate opportunities for one’s own benefit

Question 12

Are employment contracts verbal or written?

Answer 12

are often verbal and not formal or written documents

• must contain all 5 contractual elements
• Should be signed at the time of commencement of employment

Question 13

Restrictive covenants

Non-compete clause

Answer 13

in property law, a condition imposed by the seller as to what the purchaser can use the land for; in employment law, a commitment not to work in a certain geographical area for a designated period of time

• Must be reasonable
• Very difficult to enforce
• Survives after termination of the employment relationship
• Non-solicitation clause may be more reasonable in some cases (restricts former employee to solicit clients from former employer)

Question 14

Termination

Answer 14

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.

Can also be terminated for:
1) Performance - the contract stipulates an end date (i.e. one year)

2) Agreement - Parties can mutually agree to terminate
3) Reasonable notice
4) Breach
5) Frustration

Question 15

In general, such contracts of

employment can be terminated

Answer 15

(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.

Question 16

Pay in lieu of notice

Answer 16

an amount paid to a dismissed employee in place of notice to terminate

Question 17

Reasonable notice definition

Answer 17

length of notice to be given to an employee to terminate an employment contract of indefinite term; determined with reference to length of service and the nature of the employee’s position, among other factors

Or in the employers case can pay severance
-If no severance wants to be paid then they can say “in x weeks your job comes to an end)

Question 18

Charter of Rights and Freedoms prohibit termination when:

Answer 18

it amounts to discrimination on the basis of

physical or mental disability, gender, religion, colour, or other protected ground.

Question 19

Notice periods

Answer 19

The courts impose notice periods on the basis of such factors as length of service; the type of job; the employee’s age, experience, training, and qualifications; and the availability of similar employment

Question 20

Just Cause definition

Answer 20

a valid reason to dismiss an employee without notice

In the context of an employment contract, just cause must therefore constitute a serious or fundamental breach of the employee’s contractual obligations

An employee can be dismissed for cause for conduct such as serious absenteeism, open disobedience, misuse of the employer’s property including its computers, habitual negligence, incompetence, harassing other employees, drinking on the job, or immoral conduct on or off the job that reflects badly on the employer

Question 21

Wrongful Dismissal

Answer 21

termination of employment without reasonable cause and without notice or pay in lieu of notice

Question 22

Dishonesty and Misconduct

Answer 22

For dishonesty or misconduct to justify dismissal, courts consider whether the behaviour violates an essential condition of the contract

Does it breach the bond of trust that is necessary in light of the position the employee holds?

Dishonesty or misconduct may not constitute just cause for dismissal if mitigating factors are present (example: stealing money to feed a gambling addiction)

Great care must be taken when dismissing employees for dishonesty or criminal behaviour such as theft to ensure that the accusations are accurate and the evidence firm

Question 23

Disobedience and Insubordination

Answer 23

Although an employee is entitled to refuse to work because of dangerous working conditions, failure to perform a reasonable order is also grounds
for dismissal without notice

Insubordination is likewise grounds for dismissal, as obedience and a willingness to work collectively
is implied in employment relationships

The courts and arbitrators prefer
to see employers use progressive discipline opposed to termination right away

Question 24

Incompetence

Answer 24

is also just cause for dismissal; however, employers are
well advised to let employees know when the level of performance is unacceptable as soon as it becomes apparent and to provide an opportunity for improvement

This argument will be especially difficult to overcome if
bonuses or wage increases were given to the employee in the past despite the poor performance

Question 25

Illness and Disability

Answer 25

In the past, employees who became seriously ill, even though not “at fault,” could be discharged without notice if they could no longer perform their job. However, there is a legislated duty to accommodate disabled workers who are still able to work. The employer must take great care to accommodate such disabled workers and to otherwise comply with the provisions of both the applicable human rights legislation and the workers’ compensation legislation, which are designed to protect disabled or injured workers.

Question 26

Undue hardship

Answer 26

which is hardship that is substantial in nature.

Question 27

Layoffs

Answer 27

When an employer simply runs out of work for the employee to do or runs into financial difficulties, that is not just cause for termination; reasonable notice is still required. In the absence of reasonable notice, pay in lieu, and just cause, the employee can sue the employer for wrongful dismissal

Question 28

Constructive Dismissal definition

Answer 28

unilaterally demoting or changing the duties of an employee, contrary to what was agreed to in the employment contract; conduct that essentially terminates a pre-existing contractual relationship, which could be treated as dismissal From a contractual perspective, one party cannot simply impose a change in the terms of a contract without first securing the consent or agreement of the other party

Question 29

Remedies for Wrongful Dismissal

Answer 29

It is normally the employer, often a corporation, that is sued for wrongful dismissal, but the individual manager implementing the decision may also be sued when defamation or some other actionable wrong has taken place From lecture: - Damages - what would the employee have received if proper notice - Duty to mitigate - Reinstatement is possible (but very rare)

Question 30

Wrongful Leaving

Answer 30

Employees are also required to give reasonable notice of their intent to leave, and if the amount is specified in the contract, that is what the courts will enforce When there is a serious breach of the employment contract by the employer, however, an employee is entitled to leave without notice

Question 31

Liability of Employer

Answer 31

Although not directly at fault, an employer can be held liable for torts committed by an employee during the course of employment. -This is vicarious liability This includes not only incidents arising during working hours, but also any conduct that takes place as part of the employment activity

Question 32

Personal Information Protection and Electronic Documents Act (PIPEDA)

Answer 32

This Act applies to all private sector organizations that | collect, use, or disclose personal information in the course of carrying out a commercial activity

Question 33

Legislation Impacting Employment LO 12.3 Outline the purpose of various statutes impacting employment

Answer 33

Legislation Impacting Employment LO 12.3 Outline the purpose of various statutes impacting employment

Question 34

Employment Standards Act or Labour Standards Act

Answer 34

Sets minimum standards in connection with: - wages, - overtime, work hours, and rest periods, - vacation and holiday entitlements, - maternity and parental leave, and - termination and severance pay. Employment contract cannot impose standards less than this legislation

Question 35

Many workplaces fall under federal jurisdiction Examples: banks, the military, Indigenous reserves, the post office, telephone and broadcast companies, airlines, railways, and steamships

Answer 35

The employment relationship in those sectors is governed by the federal Canada Labour Code

Question 36

Employment Standards

Answer 36

Notice periods less than the common law standard can be set out in employment contracts, and as long as they are greater than the minimum statutory requirement they will prevail If a notice period is shorter than the statutory minimum, it will be void and the employer will then have to comply with the longer “reasonable notice” provisions found in common law

Question 37

Termination (under the Canada Labour Code)

Answer 37

Recognizes that no notice is required when the dismissal is for cause; otherwise, notice of termination is necessary Where the Code and common law differ is in the remedies available for wrongful dismissal Employees who have completed three months or more of continuous employment are to receive two weeks’ notice of termination (except when the dismissal is for cause) Additionally, employees who have been employed for more than 12 months are entitled to severance pay of two days’ wages for each completed year of service, plus five days’ wages

Question 38

Issue Estoppel

Answer 38

a principle preventing an issue from being litigated again on grounds that it has already been determined in an earlier trial or hearing

Question 39

Complaints

Answer 39

Employment standards legislation allows employees to file a complaint with a government board; the investigation and determination is then made by civil servants

Question 40

Human Rights

Answer 40

An area of employment law that is becoming much more significant is the protection of employee rights. With the passage of the Charter of Rights and Freedoms, as well as federal and provincial human rights legislation, employers are required not only to ensure that they do not discriminate in their hiring and employment practices, but that they take active steps to ensure that these basic rights are protected

Question 41

Human rights legislation has an impact on | employment by prohibiting discrimination on the basis of

Answer 41

race, national or ethnic origin, colour, religion, gender, sexual orientation, and in some cases age, marital status, family status, gender identity and gender expression, physical or mental disability, and pardoned criminal convictions Section 13 Human rights code

Question 42

Human rights tribunals

Answer 42

established to hear complaints about violations of human rights legislation. These tribunals have the power to investigate, levy fines, and even order reinstatement of employees if they find that the employees have been terminated in violation of some human rights provision or forced to quit because of harassment

Question 43

The Canadian Human Rights Act

Answer 43

prohibits discrimination with regard to any term or condition of employment on the basis of a person’s race, national or ethnic origin, colour, religion, age, sex, and so on

Question 44

Where the ground of | discrimination is pregnancy or childbirth,

Answer 44

the discrimination shall be deemed to be on the ground of sex **Employers cannot, therefore, fire or demote an employee because of pregnancy

Question 45

Pay equity

Answer 45

a principle (or statute) requiring equal pay for work of equal value

Question 46

Employment equity

Answer 46

the correction of employment situations where there has been a tradition of racial, gender or other imbalance

Question 47

Reverse discrimination

Answer 47

prejudice or bias exercised against a person or class to correct a pattern of discrimination against another person or class

Question 48

Affirmative action

Answer 48

programs intended to correct racial, gender, or other imbalances in the workplace

Question 49

Mandatory retirement

Answer 49

forced retirement from employment, generally at 65 years Forced retirement at age 65 years had been justified as good social policy, opening up new jobs for youth. But from the point of view of the retiree, it could be a disaster

Question 50

Harassment

Answer 50

form of discrimination that occurs when one subjects | another person to unwelcome verbal or physical conduct

Question 51

Health and Safety

Answer 51

Occupational health and safety legislation focuses on prevention of injury in the workplace. Federally, health and safety requirements are embodied in Part II of the Canada Labour Code Work Safe BC

Question 52

The main thrust of occupational health and safety legislation is to

Answer 52

1. provide safer working conditions by requiring fencing of hazardous areas, safety netting, proper shielding of equipment, environmental control, and so on 2. ensure safe employment practices, such as requiring the supply and use of hard hats, goggles, and protective clothing 3. establish programs to educate both the employer and the employee on how to create a safer working environment for all concerned

Question 53

______________________ are two human-centric problems addressed by occupational health and safety legislation

Answer 53

Harassment and workplace violence

Question 54

Workers generally have three rights:

Answer 54

(1) the right to refuse work they believe is dangerous to themselves or another worker; (2) the right to know about potential hazards to which they may be exposed; and (3) the right to participate in the health and safety process, mostly through joint health and safety committees

Question 55

Workers’ Compensation workers compensation

Answer 55

All provinces and territories have enacted workers’ compensation legislation. These statutes establish compulsory insurance programs providing coverage for workplace injuries Workers’ compensation systems are essentially no-fault insurance schemes, in which benefits are paid to injured workers or to their families in the event of death. The worker can no longer sue the employer (or the party who caused the injury, if he also contributed to the plan), being limited to the benefits bestowed by the workers’ compensation system

Question 56

Employment Insurance (EI)

Answer 56

The federal government was given jurisdiction over insurance coverage for unemployed workers by an amendment to the Constitution Act, 1867 in 1940 Under the Employment Insurance Act, both employers and employees pay into a government-supplemented fund Workers who voluntarily leave their employment or are involved in a strike or lockout are generally not entitled to receive employment insurance benefits. Benefits are also paid under the Employment Insurance Act to those who are unable to work because of illness, disability, pregnancy, or adoption

Question 57

Other Legislation

Answer 57

-Most jurisdictions have legislation controlling the apprenticeship process and trade schools. -Pension benefits are controlled by legislation -Bankruptcy and Insolvency Act and the Mechanics’ or Builders’ Lien Acts provide security to the worker in the payment of wages -All jurisdictions have legislation dealing with special categories of employees, such as teachers and public servants

Question 58

Collective Bargaining LO 12.4 Describe collective bargaining and explain the role of labour unions

Answer 58

Collective Bargaining LO 12.4 Describe collective bargaining and explain the role of labour unions

Question 59

In good faith

Answer 59

a characteristic of bargaining that makes every reasonable effort to reach an agreement

Question 60

Legislation

Answer 60

After a considerable amount of labour strife in Canada, the federal government passed the Wartime Labour Relations Regulations by an order-in-council

Question 61

Recognition disputes

Answer 61

a dispute arising between a union and employer while the union is being organized

Question 62

Interest dispute

Answer 62

a disagreement about the terms to be included in a new collective agreement

Question 63

Rights dispute

Answer 63

a disagreement about the meaning of a term in a collective agreement

Question 64

Jurisdictional dispute

Answer 64

a disagreement over who has authority; in the labour context, a dispute between two unions over which one should represent a group of employees, or over which union members ought to do a particular job

Question 65

The federal collective bargaining legislation is embodied in the Canada Labour Code

Answer 65

It applies to those industries that fall under federal | jurisdiction, including railways, shipping, air transportation, broadcasting, and dock work

Question 66

Bargaining agent

Answer 66

a body certified to act on behalf of a group of employees or employers

Question 67

Bargaining unit

Answer 67

a group of employees who have been certified

Question 68

How to get certification

Answer 68

Under the Canada Labour Code, an applicant can apply for and receive certification if it can show that 50 percent of the workforce has joined the union. To obtain certification, over 35 percent of the workforce must participate in that vote and a majority must support certification

Question 69

Collective bargaining

Answer 69

a procedure for settling terms and conditions of employment by negotiation between an employer and its employees as expressed through representatives chosen by them

Question 70

Unfair Labour Practices

Answer 70

Prohibited unfair labour practices include threats or coercion of employees by either the union or management

Question 71

Can you fire someone over trying to unionize?

Answer 71

For example, when an employer fires, refuses to hire, or threatens an employee with demotion or dismissal because of union activities, that is a crime punishable with a significant fine or imprisonment

Question 72

Employer's organizations

Answer 72

bargaining agents representing groups of employers

Question 73

Bargaining

Answer 73

In most jurisdictions, while bargaining is ongoing, | the employer is not permitted to

Question 74

In most jurisdictions, while bargaining is ongoing, | the employer is not permitted to

Answer 74

change the terms and conditions of the | employment, such as wages, benefits, or hours of work

Question 75

Ratification

Answer 75

If both sides ratify, there is a binding collective agreement

Question 76

Mediation

Answer 76

aka conciliation

Question 77

Conciliator or mediator

Answer 77

a neutral third party who facilitates discussion between parties to a dispute to encourage and assist their coming to an agreement; sometimes referred to as a conciliator

Question 78

The parties are prohibited from taking more drastic forms of action, such as a _______________, as long as a conciliator/mediator is involved in the negotiations

Answer 78

strike or lockout

Question 79

Arbitration differs | from conciliation in that

Answer 79

an arbitrator is authorized to make a decision that is binding on the parties

Question 80

Terms of Collective Agreements

Answer 80

-The completed collective agreement must satisfy certain requirements, such as having a term of at least one year -Federally, where the parties have placed no time limit on the agreement, it will be deemed to be for one year and if the Industrial Relations Board has imposed a collective agreement on the parties, its term will be for two years -

Question 81

Grievance Process

Answer 81

A procedure for settling disputes arising under a collective agreement

Question 82

Arbitration

Answer 82

Arbitration is a substitute for court action and its final decision is considered binding In all jurisdictions, an arbitrator’s decision is subject to judicial review when the arbitrator has exceeded the authority given or when the decision is unreasonable

Question 83

Lockouts

Answer 83

an action in which the employer prevents employees from working and earning a wage Employer's tactic

Question 84

Strikes

Answer 84

withdrawal of services by employees

Question 85

Work to rule

Answer 85

job action in which employees perform no more than what is minimally required so as to pressure an employer

Question 86

Work stoppages

Answer 86

strikes (initiated by employees) and lockouts (initiated by employers)

Question 87

Picketing

Answer 87

job action during a legal strike when employees circulate at the periphery of the job site to persuade others not to do business with the struck employer

Question 88

Secondary picketing

Answer 88

picketing by striking employees not just of their own workplace but also of other locations where the employer carries on business

Question 89

Employment law is governed by

Answer 89

contract law, common law, and | legislation

Question 90

Obligations of the employee

Answer 90

1) Must possess skills claimed and exercises them in a reasonably competent and careful manner 2) Follow reasonable orders of the employer 3) Treat property of the employer carefully 4) Must be honest, loyal, courteous, punctual 5) Duty to act in the best interests of the employer (fiduciary duty)

Question 91

Frustration of employment contract

Answer 91

Courts used to consider an employment contract frustrated if an employee became disabled and could no longer perform their job duties - Today's workers compensation and human rights legislation impose a duty on the employer to accommodate disabled employees - The duty to accommodate does not apply if it will cause the employer undue hardship (must be significant) - Most employers offer short and long term disability insurance and policies as part of their benefits package

Question 92

Union shop clause

Answer 92

Requires new employees to join the union within a specified period of time

Question 93

Closed shop Clause

Answer 93

Requires that the employee be a member of the union before getting the job

Question 94

Agency shop clause

Answer 94

Enables employees to restrain the right to not join the union, but they must pay the union deposit

Question 95

Check-off provision

Answer 95

The parties have agreed that the employer will deduct union dues from the payroll

Question 96

Maintenance of membership

Answer 96

Requires those who are already union members to pay dues and maintain their membership, though new employees do not have the join the union

Question 97

Bona fide occupational requirement

Answer 97

Example to discriminate for a job Hard hats over Turbans