Chapter 12 - Employment Flashcards
What is employment?
Employment involves one person doing work for another
Master-servant relationship
An employee is said to be in a master–servant relationship, acting under the direction
of the master
Independent contractors
Contractor agrees to do a particular job
Employees work for their employer; independent contractors work for themselves
Control test for employment
- Assess the degree of control exercised by the person paying for the service
- Control is greater over an employee than an independent contractor
Organization Test for employment
is the person an integral part of employer’s organization?
- i.e. A baker is integral to a bakery.
Risk Test for employment
examines whether the worker bears any financial risk of loss or stands to
profit is work is completed efficiently
Obligations of Employers
- Payment of wages or salary
- Safe working conditions
Obligations of Employees
- Competent
- Honesty and loyalty
- Punctuality
- Act in Employer’s best interest
- Fiduciary obligations in some cases
Restrictive covenants
Commitment not to work in a certain industry in a set area for a set time period
- Must be reasonable
- Must not be contrary to public policy
Termination
Employment can be terminated by:
- Either party giving reasonable notice
- By paying in lieu of notice: The employer giving the compensation that should have been earned in that notice period
- Immediately without cause
An employee may be dismissed with notice for any reason unless it violates human rights
legislation
Reasonable notice
This is required for without cause termination, divided into statutory and common law notice
Statutory notice
- Legislation sets minimum standard for notice
Common Law notice
In setting reasonable notice courts consider the Bardal Factors:
- Length of service
- Type of job
- Age of employee
- Qualifications
- Availability for similar employment
- Bad-faith conduct
Pay in-lieu of notice
Notice period
1 week - More than 90 days but less than 2 years
2 weeks - 2 years but less than 4 years
4 weeks - More than 4 years but less than 6 years
5 weeks - More than 6 years but less than 8 years
6 weeks - More than 8 years but less than 10 years
8 weeks - 10 years or more
Just cause dismissal
Dismissal without notice must be based on employee wrongdoing or a failure to perform the job including:
- Absenteeism and tardiness
- Disobedience and insubordination (Use of progressive discipline)
- Incompetence (Let employees know they are not meeting standards)
- Harassing others
- Drunkenness, addictions issues
- Immoral conduct
Must be consistent/series of events
Human Rights Legislation
Illness may cause frustration in the contract, but Human rights and workers’ compensation legislation may require the employee to be
accommodated
Constructive Dismissal
Employment contract may be breached when nature of job changes without consent or working conditions become intolerable
- Failure to address harassment or sexual harassment by management or by other employees may enable a
victim to claim constructive dismissal - The law requires that employees take reasonable steps to mitigate damage
Remedies for wrongful dismissal
- Damages awarded based on what the employee would have received had proper notice been given
- Dealing with employees in good faith has benefits
- Damages for defamation or intentional infliction of mental stress are possible
- Reinstatement is possible but rare
Wrongful leaving
Employees must give employer reasonable notice before departing, may be set by contract
Following a serious breach of the employment contract, an employee may leave without notice
Vicarious Liability
This is found for torts committed by an employee in the course of employment
- Operators of motor vehicles of employers may cause vicarious liability to employer
- Employer has right to turn to employee for compensation when found vicariously liable
Human Rights Act
Employees have a right to:
- Work in a respectful, inclusive environment, free of discrimination.
- Be accommodated for their needs based on protected grounds to the point of undue hardship
- Make a complaint to the Human Rights Commission if they believe they have experienced discrimination.
Workers Compensation Board
Legislation establishes compulsory insurance programs providing coverage for workplace injuries
No-fault insurance
Its goal is to ensure that money and benefits are paid to the injured parties, regardless of who is at fault
When are employees covered for insurance
Eligible:
- Those who are unable to work because of illness, disability, pregnancy, or adoption or those caring for critically ill or injured children or adult family members
Not Eligible: Workers who voluntarily leave their employment, are involved in a strike or lockout
Collective Bargaining
Workers join together to negotiate wages and working conditions
Lockout
Action by employer to prevent employees from working
Strike
Withdrawal of services by employees
