Comm 304 Midterm 2 Flashcards
Why is an employee contract special?
- Lack of equal bargaining power between parties
- One of the most regulated contract relationships
- Conducted for a long period of time “indefinite”
- Issue of implied terms
- Status of being an employee i.e. “contractor” issue
- Emerging new forms of employment the gig worker and crowd work
- Unionized environment is heavily impacted by collective bargaining agreement
Who is an employee and why do they matter
- Employees enter into a contract of employment with the employer offering their labour for exchange of wages, benefits and other rational return
- Independent contractors enter into commercial contract offering services for revenue
- Employees are subordinates to their employers while independent contractors have autonomy
- Employees need to be protected from unreasonable employer action while contractors running their own business must watch their own interest
Legal tests to determine employment status
- Old age control test looks at how much control the employer has over the worker
- The organization or integration test look at what extent the worker is integrated in the business of the employer and the work performed is not just peripheral
- Fourfold Test looks at 4 main criteria’s to determine status; control over worker by employer, ownership of tools, chance of profit for worker, risk of loss for worker
Employer Conduct
- Provide a safe work environment
- Compensate employee for work provided
- Provide noticeable fermentation
- Treat employees with respect
- Act in good faith when terminating employee
- Do not impede employees ability to perform their assigned work
Employee Conduct
- Obey lawful orders of the employer
- Be honest
- Provide reasonable notice of resignation
- Advance the employers economic interest and serve faithfully
- Do not compete against the employer
- Do not harass others
Employment Standards (ES)
- Minimum wage
- Paid vacation and holidays
- Standard hours of work and overtime
- Pay on termination of employment/ severance
- Termination of employment and related notice
- Maternity and paternal leave
- Other unpaid employment leaves
Human Rights Law (HRL)
aims for equal employment opportunity by prohibiting discrimination based on certain grounds
- Prohibited grounds fairly uniform across jurisdiction with some minor variations
- Most relevance grounds in practice; disability, age, sex, nationality, race
- HRL essential in almost all HR disciplines (hiring, promotion, compensation, termination)
- Cases are heard by Human Rights Commissions not courts
HRL in Saskatchewan
- Prohibits discrimination in employment and discrimination by trade unions
- Employment applications and advertisements not to express discrimination
- Protects against intimidation and discrimination on thru ground that individuals file a complaint
- Outlines composition and procedures of the SK HR commission
- Specifies work related rights to engage in occupations
- Applies far beyond employment context
- Prohibited grounds under the SK Human Rights Code; religion, creed, family and status, sexual orientation, age, disability, colour, etc.
How employment agreements can end
- Expressed term
- Implied term
- Frustration
- Summary dismissal
- Constructive dismissal
- Fixed contract duration
- Employer termination with notice
Termination by reasonable notice; barbal factors
- Years of service the more years of service the more notice
- Age the older the employee the more notice
- Employment type criteria diminishes in importance more notice for management or senior roles
- Availability of similar employment; the harder the economic times the more notice
- Other factors may include, if an employee was induced to give up prior secure employment, more notice
Summary Dismissal (being fired)
- Known as the capital of employment law ; allows the employer to terminate the employment agreement without providing notice due to a fundamental breach of employment contract by the employee
- Must meet a high standard; if the requirements are not met it amounts to wrongful dismissal it is an either or assement
Constructive Dismissal
- Legal “construct”
- Temporary layoffs, change in compensation and benefits, relocation, change in jobs, unpaid suspension and harassment
Labour Relations
- LR means the union management relation
- Once a union is certified the employer has an obligation to negotiate in good faith a collective bargaining agreement (CBA) with the union
- The union represents employees in dealings with the employer
- 30% of workers in Canada are covered by CBAs
- Employees have the right to join a union significantly impacts the operations of a work place
Business Unionism
focuses on protecting workers rights, improving working conditions and providing service to members
Social Unionism
focus on influencing economic and social policies of government, goes much beyond “business unionism”
- Changing views of unions in society’s commonly after high profile strikes
- Need for unions to adapt due to competition and globalization
Key Principals of Labour Relations Law
- Employees have the right to join a union
- Unfair labour practices by both parties are prohibited
- No strikes or lockouts unless a conciliation process has failed
Union Set up and Structure
- Unions can be local, national and international, or provincial and national union federations
Canadian Labour Congress (CLC) is the largest federal confederation of unions, provides support and training to local unions
International Trade union (ITUC) is the global voice of workers
Typical Clauses in CBAs
- Working hours and overtime
- Wages, pay, benefits
- Leaves
- Seniority clause
- “just cause” clause
Grievance Process
- Grievance process; is the most common form of resolving disputes arising out of a CBA, multi step process, can be filled by the union or employer, if no settlement advances to arbitration
- Types of grievance; individual, group, policy- employees alleged wrongdoing is of general interest for the entire bargaining unit
Labour Arbitration
- Meant to provide a speedy, less formal process for settling labour disputes outside the court system
- Typical remedies arbitrators can order; damages for loss, wages, benefits, apology, awarding a job denied, damages for commission of tort
Just Cause Cases
The employer terminated an employee without notice
- Employer cannot discipline or dismiss an employee unless employers has just cause unlike ununionized workers
- Typical Grounds for just cause include; dishonesty, harassment, violence, poor performance, attendance issue, intoxication, off duty conduct
Duty of Fairness
- Requires unions to avoid; discrimination, bad faith and arbitrariness
- Unions obligation toward employees as a trade off for being granted exclusive bargaining rights
The grievance issue
- Can leave the employee with no effective remedy to challenge; dismissal by the employer if the union decides to drop the case
Industrial Conflict
- Strikes; employer can not discipline or terminate employees engaged in legal strike, employer can hire replacement workers, for a strike to be legal in SK workers must be unionized and no CBAs in place, the mediation failed
- Lockouts; requires motive element, when to use lockouts as a tactical bargaining strategy
Duty to Accommodate
obligation on the employer to adjust work for an employee with a recognized disability. Bona fide occupational requirements must be met by the job applicant
A number of provinces have now amended their human rights code or employment legislation to eliminate the right of an employer to retire employees when they are 65, employees can also continue their work beyond this age unless the employer should be entitled to terminate the employees service for another cause.
Arbitration
a process of settlement of disputes where a third party hears the dispute then makes a decision that is binding on the parties
