Unit 2 - End of Unit Learning Exercises Flashcards
“At will” employment contract
An employment contract in which either party may terminate the contract at any time for any or no reason, with no notice to the other party. This is the default model in the US. In Canada, employment standards legislation requires notice of termination and therefore prohibits at will contracts for employees covered by the legislation
Aggravated damages
Damages awarded to the innocent party that compensate for mental or psychological pain and suffering caused by the guilty party’s wrongful act.
These damages can only be awarded if the employers has engaged in “bad faith in the manner of dismissal”. (Wallace vs. United Grain Growers). The court ruled that an employer must be “candid, reasonable, honest, and forthright” with employees in the manner in when they terminate the employment contract.
Ancillary contract term
Terms found in secondary documents, such as human resource policy manuals or employee handbooks, that have been incorporated into an employment contract by agreement of the employer and employee.
If the ancillary document was introduced during the employment relationship, the term of the ancillary document are only enforceable if:
- it has been made clear to the employee that a new document was intended to be legally enforceable, and the court must be satisfied that the employee understood and agreed to that condition.
- Employee & employer receive “new consideration”
Balance of probabilities
An evidentiary standard of proof requiring evidence that it is more likely than not that an incident occurred
A part of the Proportionality Test (from the McKinley v. BC Tel). There are two key legal principles applied in summary dismissal are
- Balance of probabilities
- if the courts find the employe breached the contract, then is assesses the seriousness of the misconduct to determine whether the summary dismissal was warranted.
Bardal factors
Criteria considered by Canadian courts in assessing the length of time required by the implied obligation to provide “reasonable notice” termination of an employment contract. The name comes from the leading decision called Bardal vs. Globe and Mail Ltd. decided in 1960.
There are 4 Bardal factors:
- Length of Service
- Age of employee (person who is 21 will be able to find work more easily then someone who is 65)
- Character of the Employment (Was the employee a manager? Employees in non-manager positions traditionally are granted less notice than managers)
- Availability of Similar Employment (courts tend to grant shorter notices in economic booms)
Compensatory damages
Damages that compensate the innocent party for the direct loss of benefits they would have earned had the contract not been violate by the guilty party
Judges apply the reasonable contemplation test developed in 1854 in the famous case of Hadley v. Baxendale. i.e. Employer is not responsible for an employee getting injured while golfing even though they would have not been injured if they had not lost their job.
An employee may be entitled to more than lost wages and benefits. i.e. pension earned or pension benefits, vacation or vacation pay, car allowance, ect. that would have been earned during the notice period.
Constructive dismissal
A type of wrongful dismissal; it is caused by the employer who commits a fundamental or repudiator breach of an employment contract that the employee treats as having terminated the contract.
Duty to mitigate
A legal obligation on the victim of a breach of contract by the other party to make reasonable efforts to limit the amount of damages suffering as a consequences of the breach
Part of the calculation for Compensatory damages. i.e. Lost wages are $6000, less the wages earned at new job during the notice period of $3000. Damages the employer must pay is $3000
There are two key obligations imposed on a dismissed employee:
1. Make a reasonable effect to look for a new job
2. To accept a job offer that a reasonable person in their position would accept
As a part of duty to mitigate, the employee must accept a job offer from the former employer if “a reasonable person in the employee’s position would have accepted the employer’s offer”.
Duty to warn
A requirement in both the common law and collective bargaining for employers to warn employees that their behaviour or performance is unacceptable and to give them a reasonable opportunity to correct their performance.
The duty to warn incorporates a “corrective theory” of discipled based on the notion that employers should attempt to correct performance problems by progressive discipline before jumping to termination without notice. The present and consistent application of progressive discipline policy will improve the likelihood of summary dismissal based on cumulative cause being upheld by a court
Expressed contract term
Terms of contract that the parties have explicitly agreed to, either orally or in writing.
Frustration of contract
The termination of a contract caused by an unforeseen event that renders perforate of the contract impossible
Mostly arises due to employee illness or disability. However, the workplace burning down or other acts of God may frustrate the contract
Implied contract term
A default contract term invented by common law judges and read into an employment contract when the written terms of the contract (if any) do not address the specific issue addressed by implied term.
Insubordination
A breach by an employee of the implied or expressed term of an employment contract requiring an employee to obey and employer’s orders or instructions.
One of the common grounds for summary dismissal. For a single act of insubordination to amount to summary dismissal, it must involve a serious, be wilful, and demonstrate a defiant refusal to respect clear and unambiguous order that was within the authority of the employer to make.
Mutual Consideration
“Consideration” means something of value or benefit. Therefore, when we say that an employer contract must contain mutual consideration, we mean that it must provide something of value to both the employer and the employee that they otherwise would not receive. This consideration need not be equal to both parties. In fact, the courts have said that they will “not enter into an inquiry as to the adequacy of consideration,” and “anything of value, however small the values, is sufficient consideration to support contract at law.”
Principle of proportionality
The test applied by the court in summary dismissal cases that assesses whether the termination of employee’s contract without notice is appropriate response to the employee’s misconduct, considering all of the relevant facts.
