Review Questions Flashcards
Sheila worked at a BC location of a national restaurant chain for two years (making just above minimum wage). She has no written employment contract and is suddenly let go with no notice and no pay in lieu of notice. The employer simply says they are downsizing. Do you believe the individual has a legitimate legal complaint? Why or why not? What do you think is the likely outcome and remedy if the employee files a complaint and is successful?
The legislation that applies in this case is the BC Employment Standards Act. Students should recognise that Sheila is likely to have a legitimate legal complaint because she was not given any notice or pay in lieu of notice, which is required by the Act and an implied legal term in any individual employment contract. The only time the employer is not required to provide notice or pay in lieu is when it has just cause. In this case, the employer is not indicating just cause; it is suggesting the dismissal is related to downsizing, which is not considered just cause. Students may be concerned that Sheila does not have a written contract, but a requirement to provide notice exists even where the employment agreement is verbal. The likely outcome if Sheila files a complaint with the Employment Standards Branch is that she will be awarded pay in lieu of notice of at least two weeks in accordance with section 63 of the Act.
Viktor is an engineer working for Big Oil Drilling Company in Alberta. He is discharged shortly after telling his employer he suffers from alcoholism. The reason Viktor admitted he had an alcohol addiction was because he had missed quite a lot of work recently and had been placed on an absence management program. Do you believe the individual has a legitimate legal complaint? Why or why not? What do you think is the likely outcome and remedy if the employee files a complaint and is successful?
The legislation that applies in this case is the Alberta Human Rights Act. This is a slightly more complicated vignette, and students may debate whether or not the absenteeism issue provides “just cause” to the employer. However, the fact that the discharge occurred immediately following Viktor’s admission is suspicious. Alcohol addiction is considered a disability, and therefore the employer is not allowed to discriminate against an employee who suffers from this disability. Firing an employee because of a disability is discrimination in employment and a violation of the Act. Furthermore, the employer is required to accommodate the employee up to the point that it causes the employer “undue hardship.” This may include accepting a certain degree of absence in order to allow the employee to undergo treatment. Viktor may therefore have a legitimate legal complaint. Section 32 of the Act enables a human rights tribunal to compensate the individual for any wages lost or expenses incurred as a result of being discharged. The tribunal also has the ability to reinstate Viktor to his pre-discharge position and award damages for loss of dignity.
Janice is a unionized registered nurse. She applied for another position in her hospital in BC, but lost out to a male colleague. Janice had more experience and stronger qualifications. Do you believe the individual has a legitimate legal complaint? Why or why not? What do you think is the likely outcome and remedy if the employee files a complaint and is successful?
The discussion in this situation will be whether Janice would file a complaint with the BC Human Rights Tribunal or file a grievance with her union. In most cases, unionized employees would first file a grievance with the union alleging a breach of the collective agreement (group employment contract). Collective agreements often have clauses addressing human rights and discrimination. Even if there is no specific clause, the collective agreement must comply with human rights legislation. Therefore, it is likely the case could be heard by an arbitrator. If the union agrees that Janice was discriminated against on the basis of gender and should have gotten the job, it would “carry” the grievance, providing guidance and covering the cost of legal advice. If the union does not agree with Janice and feels her male colleague was appropriately awarded the position, Janice could file a case with the Human Rights Tribunal. The legislation that applies in that case is the BC Human Rights Code. On the surface of this case, it appears that Janice may have experienced discrimination on the prohibited ground of gender. If she is successful in her legal challenge, whether heard by an arbitrator or the Human Rights Tribunal, the potential remedies are compensation for lost wages in addition to awarding Janice the position she was denied as a result of the discrimination. It is important to note that once a decision has been rendered in one legal forum, the employee is not allowed to have the case reheard in another forum. In other words, if the Human Rights Tribunal renders a decision, Janice cannot try to get her case heard by an arbitrator. Parties who are unhappy with the outcome of a case must appeal or seek judicial review of the original decision; they cannot attempt to have a case “retried” through a different avenue of the legal system.
Sahana, a non-unionized window washer in Alberta, is suspended for one month without pay because she refused to work at a building until the harness on the washer’s scaffolding was replaced. She felt the system was unsafe. Do you believe the individual has a legitimate legal complaint? Why or why not? What do you think is the likely outcome and remedy if the employee files a complaint and is successful?
The legislation that applies in this case is the Alberta Occupational Health and Safety Act. The outcome of this case is less certain because it is unclear whether the harness is in fact unsafe. However, students should recognise that the employer cannot suspend an employee for refusing unsafe work. If Sahana files a complaint and is successful (an occupational health and safety officer finds that the equipment was unsafe and that the employer disciplined Sahana for refusing unsafe work), section 37(4) of the Act allows the officer to order that Sahana be reinstated to her position and paid for any hours of work she missed because of the disciplinary action taken against her. The health and safety officer will also require that the employer replace or repair the harnesses before work can recommence
What are the advantages writing out an employment contract?
· A well-drafted written contract reduces the risk of misunderstandings between the employer and employee. The specific terms of the agreement are clearly spelled out.
· A written contract forms a record of the shared understanding of both parties that survives personnel changes in the organization.
· With a written contract, difficult issues can be addressed at this early stage in the employment relationship, when the parties are well disposed toward one another.
· A written contract enhances predictability. For example, if the parties address the amount of termination notice required, both the employer and employee know each other’s obligations. It thereby reduces the risk of litigation.
What are the disadvantages of writing out an employment contract?
· From the employer’s point of view, the contract may end up limiting the employer’s ability to unilaterally make changes to the terms of employment. For example, the job description may be quite specific and thereby restrict the employer’s ability to make adjustments as market conditions vary.
· From the employee’s point of view, having a written contract makes it more likely that terms such as termination notice will be addressed. Such notice is typically less generous than the reasonable notice period available to a dismissed employee under the common law.
If a dispute arises out of an oral employment contract, how does a court establish the terms and conditions of the contract?
Here are some issues the courts will take into consideration:
· Where the issue in dispute was not expressly addressed by the parties to the oral contract, the court will “imply” what terms the parties likely would have agreed to, had they put their minds to the issue. This obviously involves a considerable amount of guesswork and leads to an unpredictable result.
· Where the issue in dispute was addressed by the parties to the oral contract, a court will have to hear and weigh the evidence presented by each party to determine which side has the strongest case. Again, there is a lack of predictability in the result.
What are the main legal issues that can affect the enforceability of an employment contract? There are five main issues that can be used, usually by an employee, to challenge the validity of an employment contract
Lack of consideration. The failure of the employer to provide “something of value” in exchange for the promise given by the employee.
· Inequality of bargaining power. The employee alleges that the contract is unreasonable and one-sided because of their failure to understand what was being bargained for or because of a lack of bargaining power.
· Obsolescence. The employee argues that the contract no longer represents the relationship between the two parties because some feature (usually the job) has changed drastically since the contract was entered into.
· Failure to meet minimum statutory standards. If some term of the contract does not at least match minimum standards set under legislation, such as the notice of termination provisions in employment standards legislation, it will be unenforceable and void.
· Use of ambiguous language. Where the wording of the contract is vague or could bear more than one meaning, it will be interpreted by a court in a way that benefits the party who did not draft it (the contra proferentem rule). This party is usually the employee.
What is thecontra proferentemrule of interpretation? Does this rule seem fair to you? Why or why not?
The contra proferentem rule means that where the wording of an employment contract is ambiguous, it will be interpreted by a court against the party who drafted it (usually the employer). This rule makes sense because the party who drafted the contract is usually the more legally sophisticated party and has the greatest opportunity to create wording that is clear and unambiguous.
What is the contra proferentemrule of interpretation?
The contra proferentem rule means that where the wording of an employment contract is ambiguous, it will be interpreted by a court against the party who drafted it (usually the employer). This rule makes sense because the party who drafted the contract is usually the more legally sophisticated party and has the greatest opportunity to create wording that is clear and unambiguous.
What is the Meiorin test?
- demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job;
- demonstrate that the standard was adopted in an honest and good-faith belief that it was necessary for the performance of the job; and
- establish that the standard was reasonably necessary to accomplish that legitimate work-related purpose. To establish this, the employer must show that it was impossible to accommodate employees who share the characteristics of the claimant without imposing undue hardship on itself.
Your employer intends to deny a 64-year-old female employee a training opportunity that is available to everyone else in her department because “she won’t be around long enough to use the new information.” How would you advise the employer?
Denying someone a training opportunity on the basis of age is a prima facie case of discrimination. To justify such a discriminatory employment decision, the employer would have to meet the three-part test set out in Meiorin. First, it must be rationally connected to the job; second, it must be imposed in good faith, in the sincere belief that it is necessary for job performance; and third, the rule or policy must be reasonably necessary to accomplish the work-related purpose. To meet the third test, the employer must show that it is impossible to accommodate the employee.
It seems unlikely that the employer could justify such a blatantly discriminatory rule in this situation. Employees have the right to be considered on their own merits, not on other grounds.
What is the Meiorin test?
The Court established a three-part test to determine when a dis-criminatory rule or qualification is justifiable.
Your employer tells you that he’s heard that a supervisor in the purchasing department made a pass at two employees at the company picnic. What should the employer do? Why?
Sexual harassment is prohibited by human rights legislation in both provinces; it is defined as a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. Usually more than one incident is required unless that incident is so serious that the harasser must have known it was offensive.
Employers are legally responsible for actions committed by employees during business-related social activities.
Even without a complaint from the two employees involved, the employer should investigate to determine whether the rumour is true. If in fact the supervisor made a pass at two people who report to him, the employer has an obligation to pursue the matter.
The employer should speak with the supervisor, on a confidential basis, to find out his version of the facts, as well as meeting with any witnesses. Confidentiality for all must be ensured.
The employer should have the supervisor review its anti-harassment policy so that he is clearly aware of the kinds of conduct that are prohibited and the possible consequences of such conduct.
The employer should ensure that its anti-harassment policy is posted in a conspicuous location and should consider training sessions/workshops to reinforce the importance and implications of its policy.
How is sexual harassment defined?
Sexual harassment is prohibited by human rights legislation in both provinces; it is defined as a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
You’ve just started your new job as human resources manager at a retail chain that sells teen clothing. A supervisor calls you with a question. She’s been getting complaints from a couple of employees that other employees are speaking with each other during work hours in a language other than English (even though they speak English well). They say it’s rude and makes them feel left out of the conversation. The supervisor is wondering if she can insist that all employees speak English during working hours. What advice should you give the supervisor?
Unless the supervisor can demonstrate that speaking English at all times at the workplace is a reasonable and bona fide requirement in the circumstances, insisting that English be spoken at all times could constitute discrimination under either the Alberta or BC legislation. Although language is not listed as one of the prohibited grounds of discrimination, it probably ties in to ancestry, ethnic origin, or place of origin. Requiring that employees speak English (or whatever the common language is) in front of customers seems appropriate as part of customer relations. Similarly, communications between employees that relate to performing the job duties could be required to take place in the common language of the workplace. In fact, for safety-related communications, the employer must insist on it in some circumstances. On the other hand, an employer probably should not try to regulate language for purely social interaction between employees. The greyest area involves two employees who speak the same non-English language communicating with each other about work-related issues in the presence of other employees who may feel excluded; in these circumstances, the rationale for the choice of language may need to be explored. If it is to improve understanding, it may well be appropriate. If it is intended to exclude, bully, or ridicule a co-worker, it may need to be curtailed.
Any rule asking employees to communicate in English only should only apply while employees are on duty; for example, it could not apply to the time they are on breaks, in the lunchroom, or before and after their shifts. Employers are within their rights to regulate the language spoken to customers, clients, and patients, or during business-related discussions.
On the other hand, if there is bullying or ridiculing occurring in the other language, the employer should further investigate and may be justified in implementing an English-only rule
