Week 8: Chapter 19

Question 1

Master and servant relationship

Answer 1

Masters historically liable for the torts of their servants when they were committed in service of the master

No mutual consent or equal bargaining power

Question 2

The fourfold test to determine if it’s an employment relationship or independent contractor

Answer 2

1. Control - who has control over the work?
2. Ownership of Tools
3. Chance of Profit - an employee doesn’t share in the profit
4. Risk of Loss

This is no longer used

Question 3

The organization test

Answer 3

A test used to establish whether a worker is an employee or independent contractor; examines whether the worker is providing services integral to the organization’s business

They’re an employee if the “employer” controls what tasks they do and how they do them

Question 4

Employment (independent contractor vs employee)

Answer 4

A contract FOR services = An independent contract

A contract OF services = an employment contract

Question 5

Form + contents of the employment contract

Answer 5

Doesn’t need to be in writing to be binding

May contain provisions restricting use of confidential information, to protect business secrets

May also contain restrictive covenants, such as non-solicitation clauses and non-competition clauses

Can restrict the use of confidential information, cannot prevent employee from exercising learned skills

Question 6

Duty of the Employer: Safety

Answer 6

Occupational Health and Safety Act

  - Working conditions, regular inspections, protective equipment, ability of employee to refuse to do work, 

  - Sanctions against employer and often supervisors personally – rare

Question 7

Duty of the Employer: Follow employment standards legislation (provincial)

Answer 7

Governs minimum wage, maximum hours, holiday and vacation pay, termination notice, severance pay

Varies province to province

Question 8

Human Rights legislation surrounding employment

Answer 8

Prohibits discrimination by, race, creed, colour, place of origin, nationality, sex, age

Includes handicap if not related to job performance

Employer is obligated to accommodate people until the point of undue hardship

Question 9

Duties of the employer: Compensation at common law

Answer 9

Employer must pay the employee in return for their services, and indemnify them for any expenses incurred in course of employment.

Employer must supply tools necessary to do the work where custom so provides

Employer must provide enough information to allow worker to calculate remuneration where necessary, ie., where other than hourly rate or salary, ie., bonus structure

Question 10

Duties of the employee

Answer 10

Perform the specific duties set out in the employment contract

Obey all reasonable orders from employer that fall within scope of employment

Must keep confidential info confidential

Must spend hours of employment doing employment work

Where employment based on special skill, employee required to exercise skill, liability to employer where breach

Question 11

Senior executives special duty to employer

Answer 11

Senior level employees can have a fiduciary position to the employer on top of their normal obligations

Question 12

Termination of employment

Answer 12

• An employment contract may provide for its own discharge (as when the contract is for a fixed term, say one year, and that term expires), or the parties can mutually agree to bring it to an end
• Most contracts of employment are for an indefinite period of time with no reference to notice requirements

In general, such contracts of employment can be terminated (1) by either party giving reasonable notice, (2) by the employer giving the compensation that should have been earned in that notice period (pay in lieu of notice), or (3) immediately with just cause

Question 13

Pay in Lieu of Notice

Answer 13

An amount paid to a dismissed employee in place of notice to terminate since they likely wouldn’t want to work the notice period anyways knowing they’ve been fired

Question 14

Reasonable Notice for Termination

Answer 14

Both parties are obliged to provide reasonable notice of termination

Reasonableness is a question of fact, dependant on ○ Nature of contract, Method of payment, Type of position, Length of service, Custom of business, Age of employee

Question 15

Just Cause

Answer 15

A valid reason to dismiss an employee without notice

Question 16

Wrongful Dismissal

Answer 16

Termination of employment without reasonable cause and without notice or pay in lieu of notice

Question 17

Criteria for an Action For Wrongful Dismissal

Answer 17

The action is to receive payment in lieu of notice

The reasonable notice period would be determined as a question of fact

In order to qualify for the action the plaintiff had to actively mitigate the damage to them (i.e. look for a new job)

Question 18

“Employees at will” and its exceptions

Answer 18

Employees at will means an employer can terminate any employee

An employee cannot be legally fired if it’s discrimination as defined by Human Rights Code
- if this happens employee can file action for wrongful dismissal

Question 19

Constructive Dismissal

Answer 19

Unilaterally demoting or changing the duties of an employee, contrary to what was agreed to in the employment contract;

conduct that essentially terminates a pre-existing contractual relationship, which could be treated as dismissal –> entitled to the same amounts as a wrongful termination in writing

Question 20

Wrongful Hiring

Answer 20

Employee is induced by employer’s inflated description of job to leave other employment and enter into employment contract

Essentially a negligent misrepresentation case

Question 21

Vicarious Liability of the employer

Answer 21

Employer liable for acts of employee while in performance of duties of employment

Failure to perform contract, and tortious acts

Employers have money, employees usually do not

Question 22

Workers compensation legislation and the Historic Compromise

Answer 22

Early 1900s, there was virtually no protection for workers, no workplace health and safety standards.

Historic Compromise:
- Workers gave up the right to sue in exchange for security of compensation
- Employers received protection from lawsuits and agreed to pay predictable costs
- who caused the mishap is not relevant to compensation - it’s an insurance policy
- Employers pay premiums, and employees are entitled to benefits if injured

Question 23

Labor law jurisdictions based on the constitution

Answer 23

Federal:
- Responsibility over federally mandated businesses like banking, shipping, national pension scheme, insurance, etc.

Provincial:
- Responsible for all businesses that fall under the category of “property and civil rights”

Question 24

What does collective bargaining do to employees?

Answer 24

It removes their common law remedies and replaces them with statutory ones

Employee in a union cannot bring up a private lawsuit against their employer

Question 25

Workers’ 3 rights

Answer 25

1. The right to refuse work they believe is dangerous to themselves or another worker;
2. The right to know about potential hazards to which they may be exposed; and
3. The right to participate in the health and safety process, mostly through joint health and safety committees

Question 26

What is the definition of collective bargaining

Answer 26

A procedure for settling terms and conditions of employment by negotiation between an employer and its employees as expressed through representatives chosen by them

Question 27

Bargaining agent

Answer 27

A body certified to act on behalf of a group of employees or employers

Question 28

How does a group of employees initiate collective bargaining rather than individual?

Answer 28

• Employees will either join an existing union or form a new one
• Large unions have trained organizers who recruit new membership
• The group of employees that want to bargain collectively have to make up the majority of that organization’s employees to be recognized

Question 29

Certification of a union

Answer 29

• Employees approach their employer with a request to be recognized as a bargaining unit
• If the employer agrees they meet with the union reps and devise a collective agreement
• In the case that the employer rejects the union, the union needs to get certified by the labor board to be recognized

Question 30

How does the negotiation process proceed between union and employer?

Answer 30

• it begins when a certified union gives notice to the employer of its desire to bargain for a collective agreement
• Employer must meet the union reps and bargain in good faith
• Both sides can propose terms
• when they agree they put it in writing and sign/approve

Question 31

Minimum duration of a collective agreement & can you alter it during the time?

Answer 31

• The minimum duration of a collective agreement is 1 year
• once the agreement is in place it cannot be unilaterally altered

Question 32

What happens if the collective agreement reaches the end of the term and can’t reach an agreement?

Answer 32

• Parties must bring in a 3rd party to intervene (mediation, arbitration, etc.)
• only when the 3rd party fails can parties strike/lockout

Question 33

What is a strike and when is it lawful?

Answer 33

• The union’s collective refusal to work
• It’s a lawful strike only when the collective agreement is not in effect, and all 3rd party assistance has failed

Question 34

Wildcat Strike

Answer 34

unlawful strike when agreement in force, where employees strike without union’s approval

Question 35

What is a Lockout and when is it lawful?

Answer 35

• When the employer refuses to allow employees to work
• lawful only when collective agreement isn’t in effect and 3rd party intervention failed

Question 36

Picketing + picketing restrictions

Answer 36

The physical presence of persons at or neat the premises of employer for the purpose of conveying information

Cannot restrict people from entering building

If there is harm or injury to people courts can demand a decrease in picketers

Question 37

Secondary picketing + its development over time

Answer 37

When employees picket somewhere other than their employer’s place of business

used to be unlawful unless you could prove a sufficiently close relationship between the businesses

Now it is considered peaceful protest by Supreme Court of Canada

Question 38

Compulsory Arbitration

Answer 38

When parties cannot strike or lockout due to their essential role, yet negotiations still break down

• Allows work to continue with no interruption
• An arbitration board holds a hearing with reps from each side to hear the issues
• they then make a binding decision on the parties

Question 39

What is a collective agreement? + form and rules

Answer 39

An agreement in writing, made by an employer and a union certified as the bargaining unit of the employees

Contains the terms and conditions for work performance, and rights and duties of employees, employer, and union

Can include things that would deem other contracts voidable
- i.e. economic sanctions

No strike or lockout can take place when agreement exists

Question 40

Union - Member relationship

Answer 40

In Ontario, a union is not a suable entity

Unions have no existence independent of its members, not like a corporation

Relationship with members is one of contract

Agreement between members to be bound by contract, one does not abide, others can kick them out

Question 41

Closed Shop

Answer 41

A company that only employs union members and requires them to secure and maintain union membership as a condition of employment.

Question 42

Union Shop

Answer 42

A company that doesn’t require employees to join a union in order to be hired, but they must join within 30 days of employment.

Question 43

Open Shop

Answer 43

A company that may have a union, but hires both union and non-union employees, and union membership is not a requirement for continued employment.

Question 44

Agency Shop

Answer 44

A company that has a union, but hires both union and non-union employees, and union membership is not a requirement for continued employment; however, non-union employees have to pay a fee to cover collective bargaining costs.

Question 45

Natural Justice

Answer 45

a common law principle of procedural fairness
i. know the case to be met
ii. opportunity to make full answer
iii. hearing before an impartial arbiter