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Flashcards in Chapter 7 Deck (39):
1

Individual contract of employment

Main components (10) (INCLUDING TERMINATION)

- Subordination: CCQ 2085
- Fixed or indeterminate term: CCQ 2086
- Health safety dignity: CCQ 2087
- Fiduciary duty: CCQ 2088
- Whistle blowing (textbook p.24)
- Non-competition: CCQ 2089,2095

Termination:
- Probationary period
- Public order rights: CCQ 2092
- Death: CCQ 2093
- Sale of business: CCQ 2097

2

(In Individual contract of employment)

- Subordination

“2085. A contract of employment is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer.”

Direction / control: subordination -> The employee does what the boss tells him / her what to do, when.

3

(In Individual contract of employment)

- Fixed or indeterminate term: CCQ 2086

2086. A contract of employment is for a fixed term or an indeterminate term.

4

(In Individual contract of employment)

- Health safety dignity: CCQ 2087

2087. The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.

5

(In Individual contract of employment)

- Fiduciary duty: CCQ 2088

2088. The employee is bound not only to perform his work with prudence and diligence, but also to act faithfully and honestly and not use any confidential information he obtains in the performance or in the course of his work.
These obligations continue for a reasonable time after the contract terminates and permanently where the information concerns the reputation and privacy of others.

-> Act in the best interest of the employer, because the employer pays you (so you’re there to perform for the benefit of your employer).

-> Same duty for directors and officers.

6

(In Individual contract of employment)
(In Fiduciary duty: CCQ 2088)

--> CONFIDENTIAL INFORMATION

-> Any information you learn about the business, anything you learn in the course of your job belongs to your employer, eg. Customer list, pricing policy, intellectual property, trademarks, formulas if not patented, financial information.

-> Eg. If you work in the accounting department at a publicly traded company (insider information)

-> Eg. If you built a huge customer base for a company, you’re not allowed to bring your customers with you. However, if you leave and you get the customers contact through public information and you restart all over again, that’s ok.

-> That being said, the company cannot lobotomize you after you leave the company.

-> Copyright is automatically there if you can prove you created something; patent you have to file.

7

(In Individual contract of employment)

Whistle blowing (textbook p.24)

Whistle blowing (textbook p.24)

-> Internal (bringing the problem to the supervisor) / external (bringing the problem to the government / regulators / public)

-> Burden of proof is on you if you whistle blow.

-> External whistle blowing is technically contrary to fiduciary duty (hence the law). So it has to be in good faith and in the interest of the public.

8

(In Individual contract of employment)

- Non-competition: CCQ 2089,2095

2089. The parties may stipulate in writing and in express terms that, even after the termination of the contract, the employee may neither compete with his employer nor participate in any capacity whatsoever in an enterprise which would compete with him.
However, the stipulation shall be limited as to time, place and type of employment, to what is necessary for the protection of the legitimate interests of the employer.
The burden of proof that the stipulation is valid is on the employer.

2095. An employer may not avail himself of a stipulation of non-competition if he has resiliated the contract without a serious reason or if he has himself given the employee such a reason for resiliating the contract.

-> Rarely enforced.

-> Usually enforced when selling someone your business for example.

-> Courts still ask themselves if the clause is reasonable (so they can deem it unreasonable and null?)

9

(In Individual contract of employment)

- Termination: two components?

- Reasonable notice

- Serious reason

10

(In Individual contract of employment)
(In Termination)

--> REASONABLE NOTICE

Alternatives? In case of maternity? What about the person replacing you? Who can use reasonable notice?

2091. Either party to a contract for an indeterminate term may terminate it by giving notice of termination to the other party.
The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, the specific circumstances in which it is carried on and the duration of the period of work.

-> Can give net pay instead of notice. Eg. I give you 4 weeks wages and you have to leave now.

-> For maternity, within 6 months I have to give you your same job back. Within 12 months, I have to give you at least a comparable job.

-> The person replacing you is going to be on a fixed term contract.

-> Either party can use reasonable notice and leave / fire that person

11

(In Individual contract of employment)
(In Termination)

--> SERIOUS REASON

2094. One of the parties may, for a serious reason, unilaterally resiliate the contract of employment without prior notice.

-> eg. Insubordination, you’re late 3-4 times a month.

-> One event usually not sufficient eg if you’re late. First time: whatever; second: verbal warning; third: written warning;

-> Series of similar events -> enough for serious reason

-> How many warnings are enough? No magic number but usually 3 written warnings is good enough

12

For a fixed term contract, what are the laws for termination?

-> 2091 only talks about indeterminate period. If fixed term, you can fire for serious reason but you cannot fire with reasonable notice, unless there is a provision in the employment contract.

13

(In Individual contract of employment)

- Probationary period

-> Usually the first three months of a white collar contract, there is a probationary period where either party can terminate the contract for whatever reason they like, usually with 1-week notice.

-> eg. You finesse the interviewers but you actually don’t know how to do anything, you can get fired during the first three months.

-> Contract clause, otherwise if not there only 2091 applies.

(Sometimes can be up to 6 months)

14

(In Individual contract of employment)

- Public order rights: CCQ 2092

2092. The employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive.

-> Public order right to sue your employer. So the employer cannot put a clause in the contract saying “The employee agrees that the employer can fire him / her at any time for any given reason without reasonable notice / serious reason”.

15

(In Individual contract of employment)

- Death

2093. A contract of employment terminates upon the death of the employee.
Depending on the circumstances, it may also terminate upon the death of the employer.

16

(In Individual contract of employment)

- Sale of business: CCQ 2097

2097. A contract of employment is not terminated by alienation of the enterprise or any change in its legal structure by way of amalgamation or otherwise.
The contract is binding on the successor of the employer.

17

Privacy issues at work

- Cameras, phones, emails, computers

-> Monitoring is allowed in a reasonable fashion + CCQ 2087 -> employer has to protect you

-> Anything hidden is not allowed

-> Eg. Back in the day (10-15 years ago) monitoring was stricter.

18

Workplace Code of Conduct (textbook p.23)

-> Every employee receives the document when they join the firm (talks about the dos and donts, acceptable behavior)

-> Not allowed to receive gifts, gratuities etc. anything that would sway your allegiance from your employer to someone else.

19

Independent contractor

2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him.

2099. The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client.

2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract.
Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force (= act of god).

-> Self employed.

-> Engaged to perform a particular task

-> Not employer / employee, instead contractor / client

-> As a contractor, you can deduct a bunch of stuff from your taxes (eg. Your car etc)

-> You bill your client as a contractor, you don’t get a salary.

-> Contactor liable for the damage he causes, client not liable (obviously)

20

Conditions of liability (3)

- Breach of duty: CCQ 1457 (textbook p.345)
- Breach of contract: CCQ 1458
- Vicarious liability: CCQ 1457, 1463

21

(In Conditions of liability)

- Breach of duty: CCQ 1457 (textbook p.345)

1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

22

(In Conditions of liability)

- Breach of contract: CCQ 1458

1458. Every person has a duty to honour his contractual undertakings.
Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.

23

(In Conditions of liability)

- Vicarious liability: CCQ 1457, 1463

1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.
He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

1463. The principal is bound to make reparation for injury caused by the fault of his subordinates in the performance of their duties; nevertheless, he retains his remedies against them.

24

Assessment of damages: 2 types

- Compensation

- Punititve

25

(In Assessment of damages)

- Compensation

1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived.
Future injury which is certain and assessable is taken into account in awarding damages.

-> You can claim all direct damages which flow from the breach. Not any speculative damages (“what if that or that happened?”)

-> eg. Cant say the fucked up ligaments might lead to hip injury which will have cost $xxxx.

26

(In Assessment of damages)

- Punitive

1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.
Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person.

-> Only available when special laws will allow it

-> eg. you try a new food supplement, and you get very ill, company who produces the supplement might get punitive damages. (GROSS NEGLIGENCE)

-> To set an example so that other people don’t do that.

27

(Quebec Labour Standards Act, Psychological harassment)

Definition


LSA 81.18: “For the purposes of this Act, "psychological harassment" means any vexatious behavior in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.”

-> One single BIG event can also be considered psychological harassment
-> Could be aggressive in nature, could be something discriminatory in nature etc etc.
-> Essentially bullying / teasing excessively (SUBJECTIVE IN NATURE)
-> Burden of proof is on you

28

(Quebec Labour Standards Act, Psychological harassment)

Employer’s obligation

LSA 81.19: “Every employee has a right to a work environment free from psychological harassment.
Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.”

-> Once harassment has been reported, the employer has the obligation has to stop it.

29

(Quebec Labour Standards Act, Psychological harassment)

Filing a complaint

LSA 123.6: “An employee who believes he has been the victim of psychological harassment may file a complaint in writing with the Commission. Such a complaint may also be filed by a non-profit organization dedicated to the defence of employees’ rights on behalf of one or more employees who consent thereto in writing.”

LSA 123.7: “Any complaint concerning psychological harassment must be filed within 90 days of the last incidence of the offending behaviour.”

-> Why 90 days? After that, everyone could have forgotten (so need witnesses), to avoid coercion (assuming after 90 days it hasn’t affected you all that much)

30

(Quebec Labour Standards Act, Psychological harassment)

Powers of the commission

LSA 123.15: “If the Commission des relations du travail considers that the employee has been the victim of psychological harassment and that the employer has failed to fulfil the obligations imposed on employers under section 81.19, it may render any decision it believes fair and reasonable, taking into account all the circumstances of the matter, including

ordering the employer to reinstate the employee;
ordering the employer to pay the employee an indemnity up to a maximum equivalent to wages lost;
ordering the employer to take reasonable action to put a stop to the harassment;
ordering the employer to pay punitive and moral damages to the employee;
ordering the employer to pay the employee an indemnity for loss of employment;
ordering the employer to pay for the psychological support needed by the employee for a reasonable period of time determined by the Commission;
ordering the modification of the disciplinary record of the employee.”

31

(Quebec Labour Standards Act, Termination)

Who does it / doesn't it apply to?

Does not apply to senior managerial personnel

32

(Quebec Labour Standards Act, Termination)

Notice: Form (medium)? What kinds of termination apply?

LSA 82:
“WRITTEN NOTICE
The employer must give written notice to an employee before terminating his contract of employment or laying him off for six months or more."

33

(Quebec Labour Standards Act, Termination)

Notice: Length of notice?

LENGTH OF NOTICE
The notice shall be of one week if the employee is credited with less than one year of uninterrupted service, two weeks if he is credited with one year to five years of uninterrupted service, four weeks if he is credited with five years to ten years of uninterrupted service and eight weeks if he is credited with ten years or more of uninterrupted service.

34

(Quebec Labour Standards Act, Termination)

Notice: Notice during layoff?

NOTICE DURING LAYOFF
A notice of termination of employment given to an employee during the period when he is laid off is absolutely null, except in the case of employment that usually lasts for not more than six months each year due to the influence of the seasons.

35

(Quebec Labour Standards Act, Termination)

Notice: Restriction?

RESTRICTION
This section does not deprive an employee of a right granted to him under another Act.

36

(Quebec Labour Standards Act, Termination)

To who doesn't LSA 82 apply?

LSA 82.1: “Section 82 does not apply to an employee:

who has less than three months of uninterrupted service;
whose contract for a fixed term or for a specific undertaking expires;
who has committed a serious fault (CCQ 2094);
for whom the end of the contract of employment or the layoff is a result of superior force(=act of god).”

37

(Quebec Labour Standards Act, Termination)

Recourse good & sufficient cause

LSA 124: “An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this act, in another act or in an agreement.
If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.”

-> Use this when you want your job back, not some sort of damages / severance.
-> If you think you got inadequate severance, use 2091
-> If this does not work, you can go ahead and ask for severance.
-> How does the employer feel that they have to hire you back?

38

(Quebec Labour Standards Act, Termination)

Powers of commission

Where the Commission des relations du travail considers that the employee has not been dismissed for good and sufficient cause, she may:

order the employer to reinstate the employee;
order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed;
render any other decision he believes fair and reasonable, taking into account all the circumstances of the matter.

39

(Quebec Labour Standards Act, Termination)
(Powers of commission)

Domestic

DOMESTIC
However, in the case of a domestic or a person whose exclusive duty is to take care of or provide care to a child or to a sick, handicapped or aged person, the Commission des relations du travail may only order the payment to the employee of an indemnity corresponding to the wage and other benefits of which he was deprived due to dismissal.”