Ch.19 Employment and Labour Relations Flashcards
Contract of employment involves:
Payment of wages/remuneration in return for services of the employee
Essential elements of a contract
Fourfold test
Fourfold test
a test for employment based on:
Control (how, where, when work performed)
Ownership of tools
Chance of profit
Risk of loss
Courts recognize limitation of fourfold test
Organization test
Examine services of employee and ask if they are integral to business or something adjunct or accessory
Distinguishing an independent contractor:
Initiative to do the work
Manner in which the work is done
Do they employ others?
Checklist of Employment Factors
Fourfold Test:
- Degree of Control
- Ownership of Tools
- Chance of Profit
- Risk of Loss
OR
Overall integral part of business
IF these tests are not met, then the person may be an independent contractor
Significance of Distinguishing an independent contractor:
Employee entitled to rights under law and benefits which independent contractor is not
Form of the Contract
Contract of employment:
Need not be in writing to be enforceable
May need to be in writing under Statute of Frauds
-If run for a fixed term for more than one year
-Informal evidence is allowed to prove the contract
Many contracts are verbal of indefinite hiring
If employee has access to secret processes or confidential information
Contract usually in writing and with restrictive covenants to protect business secrets
Duties of the Employer
Employers cannot contract out of employment legislation
-Most provinces have employment standards legislation which sets out minimum wages, hours of work, overtime, holiday pay, holidays, etc.
Two classes of laws:
- Employee safety and working conditions
- Terms of employment contract (employment standards)
Occupational Health and Safety Legislation
Health and safety legislation dictates that employer must:
-Provide safety equipment, train employees
-In Ontario, employers and individual supervisors have on-going duty to take all reasonable measures to protect health and safety of workers
-Also includes protection against psychological injury and workplace harassment
-Workers have right to refuse unsafe work
Employment standards
- Impose minimum requirements of employers
- Parties free to negotiate more favorable terms
Example: pay above minimum wage or give more holidays
Provincial statutes establish for employment standards:
Minimum wage rates
Hours of work o Conditions for holiday and vacation pay
Termination notice or pay in lieu
Overtime pay
Leaves of absence
Human Rights Legislation
Prevent discrimination in hiring or treatment of employees
- Cannot discriminate based on:
-Person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability
Selection process must not consider those factors to any degree, not even alongside other factors
Duty to accommodate
obligation of an employer to adjust work for an employee with a recognized disability
Bona fide occupational requirements (BFOR)
Can discriminate in hiring process if one can establish BFOR for the position. 3-part test:
- Purpose is rationally connected to performance of job
- Adopted in good faith
- Reasonably necessary
Example: firefighters and physical capability
Age Discrimination and Mandatory Retirement
Several provinces have amended legislation to eliminate the right to force employees to retire when they reach age 65
- Can still terminate for other causes or for BFOR
- Termination solely on age is discrimination
-Under human rights legislation
Workplace Discrimination
Employer’s obligation to maintain a discrimination free work environment
- Employers must control discrimination and harassment by employees against other employees
- Legislation includes sexual harassment
-Employers expected to establish procedures whereby sexual harassment (as well as other forms) brought forward and dealt with - Employer must avoid work practices that would constitute discrimination (e.g. working hours)
Human Rights and Employment Standards
Cannot pay female employees a lower wage than male employees for the same job
Equal pay for work of equal value (some provinces)
Pay Equity Legislation
Cannot pay different but similar jobs differently, where one male-dominated another female dominated, considering:
- Skill
- Ability
- Education
- Working Conditions
Duties of the Employee
Those specifically set out in the contract
Implied duties:
- Obey all reasonable orders of employer
- Use property or information of employer in careful and reasonable manner
- Keep confidential information confidential
- If has professional or other accreditation, then perform skills to standard of said profession
- To act in best interests of employer
Workplace Behaviour
Employees must conduct themselves in manner that does not:
- Bring disrepute to employer
- Put other employees at risk
Employees have right to free speech
- With rise of social media, employees face potential dismissal for damaging or slanderous comments
- Employers should have policy on social media use
-Notify employees of consequences of improper statements and give opportunity to correct behaviour
Termination of the Contract of Employment
Notice to terminate a contract of employment is provincially legislated
- Sets out minimum notice period required
-Varies depending on length of service of employee
Common Law
- Both parties obliged to provide reasonable notice of termination
-Adequacy of reasonableness determined by age, length of service, type of position, availability of work
Dismissal for Just Cause and Wrongful Dismissal
Employer has right to dismiss employee without notice if employee with just cause
Onus on employer to:
- Establish employee’s actions not condoned by employer
- Termination of employment contract was justified
Wrongful dismissal
failure of an employer to give reasonable notice of termination, where no just cause
onus on employer to show
- Incompetence (almost never just cause)
- Grossly negligent in performance of duties
- (Culpable) Absenteeism
- Dishonesty
- Insubordination
- Conflicts of interest
- Off-duty behavior that impacts employer
- Combinations (e.g. substance abuse)
When an employee believes they have been wrongfully dismissed:
Employee may sue for failure to give reasonable notice of termination ○ Employee must reasonably minimize their losses
- Damages are equal to loss between time dismissed and the end of the reasonable notice period
- Purpose is to place the employee in same position had the employee been given proper notice
- Awarded extra compensation where actions of employer caused employee undue mental distress
Punitive damages only awarded for bad faith dismissals
Dismissed employee must show:
- Wrongful dismissal
- Employer’s actions were “harsh, vindictive, reprehensible or malicious”
Larger damage awards made if employer dismisses employee:
In particularly insensitive or callous manner
Makes false accusations concerning employee
Employer need not terminate employee directly to constitute dismissal
Constructive Dismissal
Constructive Dismissal
employer termination of a contract of employment by a substantial, unilateral change in the terms of the conditions of employment
- Change: e.g. demotion or relocation
- Mistreatment: e.g. harassment, employer dishonesty
Remedy for constructive dismissal is money damages
Cyber-Law Aspects of Employee Management
Electronic business and information exchange increasingly becoming legal issues
Examples: employees engage in harassment through email accounts, create blogs that defame employer, hack into unauthorized areas of IT system or use system for illegal or unethical purposes
Employer should exercise control by clearly expressing operation policies for IT use
Employee Misrepresentation (Wrongful Hiring)
When an employer induces an employee to join the employer based on misrepresentations of job duties or the position
- Employees can take legal action based on tort of negligent or fraudulent misrepresentation
- Employee must establish that:
-Employer clearly misrepresented position
-Statements made fundamental to accepting position
-Suffered some loss as result of misrepresentation
- Companies should not exaggerate the job or position at time of hiring
Employer may be held liable for any loss or damage suffered by a third party as a result of:
- An employee’s failure to perform a contract
- Negligence on part of employee that causes injury or loss
Vicarious liability on employer for acts of employee
Employees seldom possess financial resources to compensate third parties
Liability limited to acts of employee within ordinary scope of employee’s duties
Test: if within the scope of the employee’s job
Does not include acts outside the employee’s duties (note: misconduct including sexual harassment are outside scope)
Workers’ Compensation Legislation Historically
Employees faced a dilemma
Problems existed in employee suing either employer or other employees of the employer
Success may lead to dismissal or financial drain on the company
Employer may argue employee voluntarily assumed risk or that it was an injury due to employee’s negligence
1897 – Workmen’s Compensation Act; now (in Ontario) Workplace Safety and Insurance Act (and Board)
Compensates injured workers on no-fault basis (i.e. automatic)
Administrative: no need for lawsuit; simple
Employees covered by Act lose right to sue employer
Mandatory in dangerous industries; optional for other employers
Effectively public insurance company – no employer insolvency risk
