Revew Flashcards
Differentiate employment from a contract
o An employee involves a master-servant relationship where the employer is the master and the employee is the servant. For these reasons there are human rights that are put in place to ensure that the employee is treated properly including minimum wage. The degree of control in an employee relationship is high and the employer directs what is to be done. A contract involves the hiring of a worker through contract meaning they are working using their resources and there is no master-employee relationship.
• How is the liability of an employer different if the worker is an employee rather than a contractor ? ( what is this liability called?)
o The liability of an employer If the worker is an employee is they are vicariously liable meaning they are responsible for negligence of their employees. If the worker is an independent contractor then the employer is not liable for the workers negligence unless they are an agent.
Types of termination
Proper
Wrongful
Constructive
Proper termination
o Proper termination is due to either just cause or with proper notice or payment in lieu of notice. Just cause is because an employee did a fundamental breach of the employment contract and it was made clear that it was in violation and was given a warning. With continuous breach termination can occur.
Wrongful termination
Wrongful termination is when an employee was fired without just cause and not given the amount of notice or payment in lieu of notice that the employee deserves.
Constructive termination
Constructive termination is when a fundamental change to the contract occurs without consideration and the employee consent and is forcing the employee to leave the job.
What conditions are to be met to terminate an employee for just cause?
The employees conduct amounts to a fundamental breach of the employment contract.
The employee is guilty of serious misconduct,
habitual neglect of duty,
incompetence,
conduct incompatible with duties or prejudicial to the employers business,
willful disobedience in a matter of substance.
Serious misconduct
intentional, harmful conduct of the employee that permits the employer to dismiss without notice. Not a minor mistake but could be many minor mistakes over time. Employee must be warned ahead.
Habitual neglect of duty
persistent failure to perform employment duties. This must be without the employers permission and must be warned ahead.
Incompetence
lack of ability, knowledge, or qualification to perform employment obligations. Must be more than the employer being dissatisfied. The employee must be warned and given opportunity to improve. There must be performance standards written against which to measure the performanc
Willful disobedience
Deliberate failure to carry out lawful and reasonable orders. The act has to be serious and the employer must be able to prove instructions were clear. Less serious offences may justify when they are cumulative.
What are relevant factors in determining reasonable notice?
Character of employment
Length of service
Age
Availability of similar employment
Degree of responsibility
Special qualifications
Circumstances
Character of employment
high level management is entitled to more notice than a junior employee.
Length of service
longer-term employees lack the breadth of experience over those who had several jobs.
Age in relation to reasonable notice periods
older employees are entitled to more notice because of difficulty in finding employment past a certain age
Availability of similar employment
the fewer opportunities are available, the more notice an employee is entitled to.
Duty to mitigate
employees must take reasonable steps to find a similar job. They do not need to look for a lower level job. Failure to mitigate will result in a deduction of damage awards.
The employment standard act and how does it impact employment with respect to hiring, management and termination of employees?
o The employment standards act is a legislation that sets out the minimum employment standards for various aspects of employment, including hours of work, wages, overtime, and termination. It ensures fair treatment of employees and provides basic rights in the workplace.
The human rights act and how does it impact employment with respect to hiring, management and termination of employees?
Human rights act administers human rights legislation and investigates complaints. This act prohibits discrimination in hiring for reasons like marital status, race, colour, physical or mental disability, religion or creed, sex and sexual orientation, and age.
-Steps in the hiring process are affected by human rights legislation.
What are the different types of interest in property?
Fee simple
Life estate
Leasehold
License
Easement
Mortgage
Opitons
Fee simple
the legal interest in real property that is closet to full ownership. It is the highest, most comprehensive level of ownership.
Provides owner with the most rights, including the right to use, possess, transfer, and exclude others from the property. It is indefinites, exclusive, and allows for the property to be passed down to heirs.
Life estate
o A life estate exists only for the duration of the holders life then reverts to the original owner or passed on to someone else.
This is an interest in real property that only lasts for the lifetime of the holder. It is non-indefinite and exclusive, as the holder has the right to use and possess the property during their lifetime.
Leasehold
o Leasehold- when one party buys the right to occupy land or a building for a given time. Leasehold estate can be bought and sold on the open market.
A leasehold estate is an ownership of a temporary right to hold land or property, typically acquired through a lease. It is a non-indefinite, exclusive right to use and possess the property for a set period of time, as determined by the lease agreement.
License
o Licence- consent given by the owner of rights to someone to do something that only the owner can do.
A licence is a personal privilege to do some particular act or series of acts on the land of another without possessing any estate or interest therein. It is non-exclusive and non-indefinite.
