Chapter 18 - Ready for Study Flashcards
What are the questions to ask to determine an employee from an independent contractor?
FTS CC TEWR
Fee Tools? Schedule? Control Clients? Taxes Expenses Where Risk
> Where they hired to complete a task or deliver a result for a fee?
Who owns the tools necessary for the work?
Who Controls the work schedule? hours and time?
Who controls how the work is done? supervision? To what degree of independence?
More than one client? If they have more than one they are more likely to be IC
Who pays income tax, EI, CPP
are they paid by invoice? and charges GST/HST?
who pays expenses?
where do they work from?
An IC assumes the risk of profit or loss
What are 3 different methods of Termination of employment?
Different methods of termination
1) at the end of a specified period. ie. summer employees, or other contract workers.
2) Termination for cause: a legitimate reason to fire
3) termination without cause:
> with sufficient notice; a reasonable notice period determined via statute law or common law (more in other cards)
> Payment in lieu of notice: Payment of the amount of compensation the employee would have earned during the reasonable notice period
What is the general concept when an employer terminates an employee without cause?
> employer/employee must give adequate notice of termination of employment contract. Employee not usual held to same standard. More concerned with employer giving employee adequate notice.
What are the 2 ways to determine what is reasonable notice?
1) through the employment standards act
> based on statute
> one week per year to a max of eight weeks
> note: common law typical provides more.
2) through common law
> based on common law
> courts use bardal factors.
What are the Bardal factors?
AS PEET
Age Service Position Economy Earnings Training
> age (if older, difficulty of finding a new job will be considered)
years of service (length of employment)
level of position or responsibility (harder to find a higher level job)
economic conditions
amount earned (including benefits). (higher paying jobs are more difficult to find)
training, education, and experience
in summary, factors that are used to determine how long it may take someone to find a new job
Note: a written contract may work to set a notice period. if reasonable the courts will let it stand.
What is wrongful dismissal?
> dismissed without cause, and
termination without proper notice
Employees must prove:
1) employer has breached the contract, and
2) employer has failed to give adequate notice.
Termination for cause? What are the grounds?
employer can treat employment contracts as being discharged by employees breach > no notice no severance
grounds
IPL SAM
> incompetence / Failure to perform job
persistent lateness / serious absenteeism
open/willful disobedience
misconduct / dishonest immoral conduct. examples: teacher caught with cocaine in desk. Note: is difficult to navigate
High threshold to fire person with cause
Note: employer should create employment record. to show work to try and improve, of instances. There is a duty to warn the employee
What is constructive dismissal?
substantial change to an employees job that amounts to termination of existing employment.
What are the remedies available in a wrongful dismissal action?
A. Damages
PPSSMPU MUST MITIGATE
PAY, PAIN SUFFERING, SPECIAL, PUNITIVE,
- payment in lieu of notice
- Damages for mental anguish or pain or suffering.
- Special damages associated with the cost of mitigation
- moral, aggravated, and/or punitive damages for employer bad faith
(Wallace v. United Grain Growers)
> very hard to prove for punitive. would have to be very heavy handed conduct in dismissal, malicious, vindictive, reprehensible.
> requires second cause of action. humiliation. conduct that causes mental distress - reduction for failure to mitigate damages
> mitigation by employee still required (look for another job. court could reduce award if you could have found a job)
B. Reinstatement > May enforce that taking of a person back to work. more common in union
What are restrictive covenants?
Non-competition and non-solicitation after termination 1) interest must be protected > lists, trade secrets, etc 2) if so, must be reasonable based on: > activity > time, and > geographical limits
Generally difficult to enforce against employees. the higher level of the employee will matter
What is collective bargaining as it related to labor law and Unions?
Collective bargaining
> union becomes bargaining agent for employees who are part of bargaining unit: employee loses individual rights
> Employment relationship governed by collective agreement (wages, benefits, vacation, seniority)
> Labour relations act is relevant
> Dispute resolution process
