Employment Law

Question 1

Employment Law

Answer 1

• contract between parties = employment agreement
• governed by: statute, labour union, common law

Question 2

Employment Contract

Answer 2

a contractual relationship whereby one party, the employer, is authorized to direct and control the work of another party, the employee

Question 3

Employment Characteristics

Answer 3

• Degree of supervision and control over worker
• Duration of the K - Fixed or indefinite
• Nature of the K - Employment contract
• method of payment - fixed schedule (periodic)
• receives benefits
• integration in the workplace (managerial structure)

Question 4

Independent Contractor Characteristics

Answer 4

• Ownership of tools
• Duration of the K - Project based
• nature of the contract - exchange of goods
• Method of payment - Mile stone based (half done, fully done), cash/ et
• Exclusivity – Nonexculsive, work for many people at a certain amount of time
• Risk in profit/ loss
• Use of time and delivery of result

Question 5

Independent Contractor

Answer 5

There own business
Can terminate the contract

Question 6

Employee Duties

Answer 6

• Duty to obey
• Duty to exercise skill and care
• duty of good faith and fidelity (while employed)

Question 7

Duty to obey (insubordination)

Answer 7

Have to do what the company says, and can be fired if it is not done
Exception: if it is illegal or unethical beyond personal levels

Question 8

Duty to exercise skill and care

Answer 8

Not doing a good job, incompetent

Question 9

Duty of good faith and fidelity (while employed)

Answer 9

• Cannot work for two competing companies (ex- Apple and Microsoft)
• Cannot take work materials/ company resources for your own benefit

Question 10

Employers Duty

Answer 10

• duty to pay
• duty to follow the law

Question 11

Termination of Employee
- by way of notice

Answer 11

• without cause – firing someone not because they did something wrong (company needs to downsize)
• can pay the employee a certain amount of money
• provide payment instead of notice

Question 12

Factors for Determining Reasonable Notice Period

Answer 12

• Trade practice – what is common in the industry
• Duration of employment – longer you worked at the company, the more time you should get
• Intention at the time of contract formation
• Frequency of pay – extended notice period if you get bonus’ at the end of the year
• Level of positions – CEOs get longer notice periods

Question 13

Dismissal for Cause

Answer 13

• No notice required for dismissal for cause
• Dismissal for cause: dismissal without notice or further obligation by the employer when the employee’s conduct amounts to breach of the contract

ex -
Working for a competing business
Taking company resources for self gain

Question 14

When can you dismiss for cause?

Answer 14

• misconduct
• insubordination
• incompetence

Question 15

Misconduct

Answer 15

• crimes/ bad behaviour
• Does not necessarily need to cause economic loss
• Where repudation of employer is affected, other employees are affected, causes direct financial loss

Question 16

Insubordination:

Answer 16

willfully disobeying a reasonable and lawful request from your superiors

Question 17

Incompetence

Answer 17

• expressed or implied
• Express - reume, application, or interview, where you say you possess certain skills
• Implied - applying for a job that requires certain skills when you do not have them

Question 18

Doctrine of Condition

Answer 18

• (simailr to estoppel): condoning incompentence makes claim for dismissal of incompetence difficult
• If they condone bad behaviour, and then try to fire you based on the behaviour they allowed

Question 19

Illness

Answer 19

It is not a breach of contract, it is a frusturating event
EI/ Disability Insurance covers these issues

Question 20

Dismiss for cause what should the employer do

Answer 20

(1) Need for warrnings to employee – provide the opportunity for the employee to improve their bad behaviour
(2) Need to provide adequate training and assistance
(3) Need to document activities of both employee and employer

Question 21

Wrongful Dismissal (Cause of Action):

Answer 21

where an employee claims they have been wrongfully dismissed

Question 22

Wrongful Dismissal - Employers defences

Answer 22

(1) Dismissed for cause
(2) Dismissed and adequate notice (or payment in lieu of) provided
Even if cause is discovered after dismissal, this can be used as defence

Question 23

Constructive Dismissal = Wrongful Dismissal

Answer 23

• Purposely makes work conditions so bad that you quit
• Bad work conditions, takes away benefits, reduce hours/ pay

Question 24

How to Dismiss for Cause?
- Defence of Adequete Notice:

Answer 24

Proving Adequate Notice – character of the employment, length of service, age of the employee, availability of similar employment, experience, training, and qualifications of employee

Question 25

How to Dismiss for Cause?
Other factors

Answer 25

If the employee was induced to leave secure employment, bad faith on the part of the employer, expenses incurred to leave the employment

Question 26

Notice Requirement

Answer 26

• Contract law – place the injured party in the position they would have been in had the contract been performed
• A reasonable timeframe is required to fufill this purpose, hence the role of the notice period

Question 27

Mitigation in Wrongful Dismissal

Answer 27

• As in all breach of contract cases, the plaintiff must mitigate their damages
• Ex – mitigate by finding a new job
• Employer can possibly ask for the money back from the notice since the employee is receiving money from the notice and a new salary

Question 28

Mitigation

Answer 28

• Contract law requirement to act reasonably to reduce losses
• Must try to obtain reasonably comparable employment
• Court will reduce damages if there is failure to mitigate
• If a plaintiff (employee) successfully mitigates, they receive the difference between the notice requirement and actual income paid during the notice period as damages, and any costs associated with mitigation

Question 29

Wrongful Dismissal
Mental Anguish

Answer 29

• Courts generally do not consider hurt feelings
• Recognition over time that while employment contracts are economic in nature, there is decidedly a human element as well
• Problems of trying to assess intangibles such as “pain and suffering” and “humuliation” (something extra happends on top of being fired)
• Punitive damages - can be paid if the firing was: sufficently “harsh, vindictive, rehenesible, and malicious”

Question 30

Reinstatement (rare remedy)

Answer 30

• Equitable remedy, not generally allowed unless provided for by statute
• Canada Laboutr Code R.S.C. 1985, c. L-2 s. 240 – for federally regulated companies
• This is an extreme remedy, usually only happens in monopolized businesses which are government jobs (police officer)