Chapter 7 - Employement Law Flashcards
What are the two broad ares of study within employement contracts?
- Individual Contract : Terms are negotiated and agreed between employee and employer.
- Collective Agreement : Contract between employer and a group of employees (union, brotherhood). The group negotiates with the employer to agree on working conditions that govern the relationship between employer and entire group of employees.
Individual Contract - What are the essential elements of a legal contractual agreement?
Subject to all general contract rules
2. bilateral - both parties have an obligation (The employee does the work, the employer pays)
3. The work is done continuously until the termination
4. The employee is subordinate to the employer. The work must however be of reasonable activity as it is for the benefit of the employer
5. Employee must personally carry out the work, it cannot be delegated
6. The contract must be for a limited time. An unlimited contract would be considered slavery and is illegal.
Individual Contract - What are the terms of the contract?
May be one of two terms;
- Fixed Term has a clearly agreed termination date. When this date arrives, the contract ends - no need for notice or formalities. HOWEVER, the term cannot end prior to the termination date. The employer would have to pay all the money that would’ve been earned to “lay them off’
- Indeterminate Term is not a contract of unlimited duration - in this term, the parties agree to not set a specific termination date. The contract will continue until one party terminates it, with a given notice to the other party.
2.1. An employer may create a “pause” in the contract, temporarily laying off the employee, but only for a maximum of 6 months.
Individual Contract - What is the form?
There is no specifc form required for a contract of employement. It may be written or verbal.
Individual Contract - What are the Employer’s obligations?
Employer must allow the employee to carry out the work, in a safe environment, and pay the agreed wage/salary.
- The employer may demand the work to be done in particular manner, and may discipline the employee for not conforming to these rules.
- Ultimate discipline measure is to fire the employee.
Individual Contract - What are the Employee’s obligations?
An employee must do the job carefully, promptly and to the best of their ability. They must be honest and loyal (not give away trade secrets, unless whistle blowing), bound in time (may have a non compete)
Placing serious danger on other employees or employer allows instant dismissale without notice. Grounds for such include:
- Starting a fire, smoking, damaging equipment, stealing, fighting, falling asleep on job, etc.
Individual Contract - Restrictive Covenants & non-competition clauses.
Clause stating that employee cannot compete for another firm in the same business, or start up a business, for a fixed period of time, within a specific geographic area.
- It must be reasonable within time & space
- If employee was fired without good reason or was forced to quit, all non compete clauses are nulled.
Individual Contract - Renewal & Termination
A Tacit Renewal occurs if, after 5 days of a fixed term contract ending, the employee is still working, the contract is renewed with the same conditions exept it noe becomes an indeterminate term.
For indeterminate terms, you must give notice of termination within reasonable time based on skill, education level required and ease of finding a new position.
When a company is sold, employees are not terminated as a result.
A certificate of employement is needed when an employee is fired stating the lenght of employement and the kind of work that was done.
Individual Contract - Contractors
A contractor is one that undertakes a job for someone, without the element of subbordination. The contractor decides when the job is done, how it will be done, and by how many people.
Individual Contract - What is the diference between an employer/employee relationship and a client/contract relationship?
- No subordination - the contractor controls the job.
- A contractor must provide his own tools and equipment
- A contractor may increase profit by increasing efficiency - not paid a wage, and in full with no tax deductions.
- Risk of loss. With employees, employers bear the loss, with a client, the contractor bears the loss.
The Quebec Labour Standards Act
These laws provide the minimum conditions of work, and applies to everyone but senior management. It is declared public order meaning you can’t offer anything lesser and affects:
- Wages, hours of work, vacations, holidays, breaks
- You cannot change this public order even by private agreement. The minimum is the minimun PERIOD.
Wages
Minimum wage of $15.75, to be paid in cash, by cheque or direct deposit, alonside a pay slip.
- No deductions, expet where legal, can be made
- Wages must be paid at intervals of max 16 days
- Part time workers are entitled to the same hourly wage as full timers.
- Any tips or gratuities are the exclusive property of the employee. Employer cannot dictate how to share them BUT must keep track of them for their personal income.
Hours of work
Regular work week is 40 hours. Anything above that is overtime and must be paid time and a half. Three hours is the minimum work time to be paid, this is called Call-In Pay (even if you only came in for 2 hours(
- Overtime may be compensated as additional leave that may be taken 12 months after the overtime date
- Employees may refuse to work more than 4 hours after daily working hours or more than 14 hours after per 24 hour period.
When is an employee considered to be working?
An employee is considered “working” when
- They are available at the work place waiting to be assigned work
- During break periods permitted by employers
- Traveling as required by employer.
Paid Vacations
- Employees are entitled to be absent whilst on vacation without fear of losing their job.
- Employees are entitled to vacation pay
Vacation times are based on reference years or how long and employee has been with the employer continuously.
- Less than a year: 1 vacation day per month worked, max of 10 days
- One year or more, up to 5 years: two weeks of vacay
- 5 years or more: three weeks of vacay
Leaves
- Weekly Rest: 32hours consecutive of rest per week
- Meal Break: 30 min lunch after 5 consecutive work hours, non paid
- Sick/Accident Leave: After 3 months of service, can request up to 26 weeks of unpaid leave
- Fam responsibilities: 10 days per year, unpaid
- Death of family: 1 day paid, additional 4 days unpaid
- Death of in laws or grands: 1 day unpaid
- Birth/Adoption: 5 days (two paid if working for more than 60 days)
Maternity Leave
Can last no more than 18 weeks, unpaid, and can begin no sooner than 16 weeks before due date.
- Employer must be promptly notified of the begining and end dates of the leave
- Employee is entitled to return to her job amd receive any increased wages/benefits implemented while she was on leave.
Parental Leave
Parents may leave for 52 consecutive weeks, unpaid.
- An employee on parental leave that does not return at the end of their end date is considered to be resigned.
Phscycological Harassement
Employees are entitled to a safe workspace free from vexatious behaviour. EMployers must act upon harassement. This does not apply to senior management.
Notice of Termination
Written termination notice is required to terminate an employement contract, for indeterminate terms.
- less than 3 months > NONE
- 3 months to a year > 1 Week
- 1 year to 5 years > 2 weeks
- 5 years to 10 years > 4 weeks
- 10 year up > 8 weeks
In lieu pmts : when employer perfers you don’t work during notice period but must still pay you.
Dismissal without sufficient cause
If an employee has worked for a minimum of two consecutive years, they must be given a valid dismissal reason:
- Employee incompetence
- The restructuring of the business
- Financial issues
Unjustified Dissmissal must be claimed within 45 days of your termination and can be for hiring a family member instead, private matters, jealousy, etc..
- If termination is found to be injust, the employees job may be reinstated, ordered payment for lost wages .
