Chpt 18: Employment Flashcards
What is employment?
A contract whereby an employer can direct and control the work of an employee
What governs employment contracts?
Labor Unions, Statutes and Common Law
What is the difference between an agent and a employee?
- An agent can enter contracts on behalf of a principal while not all employees can
- Employers have more liability than principals
- Employees have more protection against contract termination than agents do
What are the characteristics of an independent contractor?
- Hired to complete a task or deliver a result for a fee
- Owns tools necessary to complete the job
- Controls own hours/time of work
- Controls how the work is done
- No tax, benefit or government deductions from payment
- Invoices for work done
- Charges HST
- Pays own expenses
- Takes on risk for profit/loss
What is the most important distinction between independent contractors and employees?
ICs are not necessarily governed by the supervision of the employer
What are the four main aspects of employee/employer relationship governed by common law?
1) Employer’s liability to 3rd parties
2) Notice required to terminate relationship
3) Reasons for termination without notice
4) Assessment of damages for wrongful dismissal
When is an employer liable for an employee’s work?
An employer is liable FOR ANY tort committed by an employee during the course of his work unless work is delegated without consent.
If a company forms a contract to do work, then employees fuck it up, who is liable?
The company who formed the contract
What are an employer’s duties?
Compensate the employee properly
What are the employee’s duties?
- Duty to obey
- Duty to exercise skill and care
- Duty of good faith and fidelity
How long before does an employer have to notify an employee of dismissal?
Depends on the contract and type of work.
If there is a time limit to contract, then none.
If weekly hiring, a week. If monthly, a month (etc…)
If indefinite, a “reasonable” time must be given.
What factors contribute to a “reasonable” time of notice?
- How long you’ve worked there
- Character of employment
- Age of employee
- Education/Training of employee
- Experience of employee
- Market employment conditions (how available similar jobs are)
Kyle brings Mitch into a meeting and tells him he’s fired. But Kyle gives him his pay for the next 6 months. Is this okay or can Mitch sue?
This is payment in lieu of notice. If 6 months is a reasonable amount of time then this is satisfactory for notice.
Mitch decides he wants to leave and tells Kyle. He then quits. Is this okay?
No, employees must give an equivalent amount of time that he would be given if dismissed. If Kyle wanted to, he could sue for the damages he lost from Mitch leaving.
When can an employer dismiss an employee without notice?
1) Misconduct - If an employee committed a crime, immoral conduct that harmed reputation/financials, damaged morale of employees
2) Disobedience - Disobeying a reasonable and lawful order from the employer
3) Incompetence - Depends on the explicit (saying you have that skill on resume) or implicit (applying for a job with required skills) representations you give your employer. Can be difficult the longer an employee has worked for the company (employer has condoned incompetence).
Employer must have given proper education and training.
4) Illness - Recurring or terminal illness. Not a breach of contract while the others are.
