Employment

Question 1

Independent Contractor

Answer 1

Performs specific service described in a contract.

Example: criminal lawyer, carpenter, accountant.

Question 2

Employee

Answer 2

Ongoing relationship with employer. Governed by specialized rules (employment law).

Question 3

Dependent Contractor

Answer 3

Operates a separate business but has ongoing or exclusive relationship with employer.

Example: truck driver that only hauls for a single company.

Question 4

Agent

Answer 4

Someone who represents his/her principal in dealings with a third party. Agent may be an employee or an independent contractor.

Question 5

Two Types of Actual Authority

Answer 5

Expressed Authority: when principal directly grants authority to agent (usually by contract).

Implied Authority: inferred from surrounding circumstances and conduct of parties.

Question 6

Apparent Authority

Answer 6

If principal does something to lead 3rd party to think agent has authority, then 3rd party can rely on representation.

Question 7

Ratification

Answer 7

Where agent exceeds both actual and apparent authority, principal is not bound by contract.

Question 8

Can the principal ratify?

Answer 8

• may ratify intentionally by expressly ratifying.
• may ratify inadvertently by taking some benefit.

Question 9

What are the restrictions on ratification?

Answer 9

• must have been possible to enter into contract at time of ratification.
• must have been possible to enter into contract at time agent purported to act.
• must ratify within reasonable time after agent’s unauthorized conduct.

Question 10

Vicarious Liability

Answer 10

When one person is held responsible for the torts committed by another. Both principal and agent may be held responsible.

Question 11

Fiduciary Duty

Answer 11

agent’s obligation to act in best interests of principal.

Question 12

Actual authority normally ends when:

Answer 12

• job is finished.
• agent receives different instructions from principal.
• employment or agency relationship is changed or ended.
• project becomes impossible to perform.
• principal dies, goes bankrupt, becomes insane.

Question 13

Employment

Answer 13

Relationship based on contract law (common law).

Question 14

Control Test vs. Organization Test

Answer 14

Control Test: degree of control excersized.

Organization Test: based on worker’s relationship to organization.

Question 15

What are the obligations of the employer?

Answer 15

• safe workplace
• appropriate direction
• tools where appropriate
• wages
• reimbursement for expenses

Question 15

What are the obligations of the employee?

Answer 15

• be reasonably competent.
• have the skills claimed.
• be honest, punctual, loyal.
• perform the word agreed to.
• owe a fiduciary duty if a manager or key employee.

Question 16

Termination

Answer 16

• Employer can terminate an employee for ‘just cause’.
• Under common law, must give reasonable notice of termination in absence of ‘just cause’.
• may give notice or pay in lieu of notice.

Question 17

Factors of Consideration for Reasonable Notice (Bardal Factors)

Answer 17

• length of service.
• important of job.
• age.
• likelihood of finding similar employment in the area.

Question 18

Three Aspects of Just Cause

Answer 18

Misconduct: may not constitute just cause unless very serious. If less serious, employer should provide progressive discipline.

Incompetence: must clearly inform employee of shortcomings and him/her a chance to improve.

Inability to Perform Work: employer required to accommodate disabled employee providing it doesn’t place unreasonable burden on business.

Question 19

Wrongful Dismissal

Answer 19

Court must determine if there was just cause for dismissal:

• if just cause, even if found after termination, no notice is required.
• if no just cause, then court must determine whether reasonable notice was given.

Question 20

What are the three ‘bad faith’ damages?

Answer 20

Wallace/Honda Damages: humiliating manner of dismissal.

Aggravated Damages: where employee suffers ‘intangible injuries’ (usually mental distress).

Punitive Damages: meant to punish employer’s ‘malicious, oppressive, high-handed conduct’.

Question 21

Constructive Dismissal

Answer 21

By demotion, transfer, or other significant changes in employment conditions, an employee may be made so uncomfortable that he/she will quit.

Employee can sue for constructive dismissal.

Question 22

Employee may quit for causes if:

Answer 22

• given dangerous or illegal instructions.
• not properly situations.
• can no longer perform duties due to disability or illness.
• any important term of employment contract breached.

Question 23

Collective Bargaining

Answer 23

Legislation allows workers the right to unionize and bargain collectively.

Question 24

Certification

Answer 24

Once bargaining unit (specific group of employees) is identified and requisite number of employees sign up (40%), union applies to labour board for certification.

Question 25

Remedial Certification

Answer 25

Board can certify union without a majority vote if it feels unfair labour practices have tainted the vote.

Question 26

Bargaining

Answer 26

Once certified, either party can serve notice to commence bargaining. The goal is to reach a collective agreement (CA).

Question 27

Collective Agreement

Answer 27

Collective agreement must include certain terms:
1) rights dispute handled through grievance.
2) ‘Wildcat’ strikes (having to do with disputes over rights during the term of a CA) and walkouts illegal during term of CA.
3) CA must be at least one year in length.

Question 28

Check-Off Provision

Answer 28

clause in CA requiring employer to deduct union due directly off employee’s pay and provide to the Union.