EMPLOYMENT Flashcards
Employment Contract
a contractual relationship whereby one party, the employer, is authorized to direct and control the work of another party, the employee
Key factors of Employment include:
- Degree of Supervision & Control Over Worker
- continuous or long-term
- Specifies a relationship of employer-employee with associated duties.
- Both parties intended to create an employer-employee relationship.
- Regular salary or wages, often with deductions for taxes and benefits.
- Employees usually receive workplace benefits (e.g., health insurance, vacation pay, pension contributions).
- The worker is an integral part of the business, contributing to its core operations.
Key factors of Independent Contractors include:
Ownership of Tools: Independent contractors typically supply their own tools or equipment.
project-based or time-limited.
a B2B relationship
Both parties intended for the worker to act independently.
Contractors are usually paid per project, and no deductions (like taxes or benefits) are made by the employer.
Contractors can often work for multiple clients simultaneously.
Contractors bear the financial risks and rewards of their business.
Contractors decide how to complete the work as long as the result meets the agreed specifications.
Employees’ Duties
Duty to obey (insubordination)
Duty to exercise skill and care
Duty of good faith and fidelity (while employed)
Ways to Terminate an Employment Contract
By Notice: Either the employer or employee provides notice to end the relationship.
By Agreement: Both parties mutually agree to terminate the contract.
Frustration of Contract
Dismissal for Cause: The employer terminates the contract without notice due to serious misconduct or incompetence.
Employer Obligations on Termination
a) Notice or Pay in Lieu of Notice
Statutory Minimum Notice: Under Ontario’s Employment Standards Act (ESA), employers must provide written notice or payment based on the length of employment.
Common Law Reasonable Notice: Beyond the ESA minimum, common law often requires longer notice
b) Severance Pay
Factors for Determining Reasonable Notice Period (Bardal v. Globe & Mail Ltd.)
- Trade practice
- Duration of employment
- Intention at time of K formation
- Frequency of pay
- Level of position
When can you dismiss for cause?
Insubordination
Misconduct: Crimes/Bad Behaviour
Gross incompetence
Harassment or violence
Where reputation of employer is affected
Causes direct financial loss
Doctrine of Condonation
If the employer is aware of misconduct but continues the relationship, they may lose the right to dismiss for cause.
Incompetence - Express and Implied term
- Express: Resume or application or interview, where you say you possess certain skills;
- Implied: Applying for a job that requires certain skills when you don’t have them.
Steps to ensure fairness and help avoid potential legal claims like wrongful dismissal
(1) Need for warnings to employee – providing the opportunity for the employee to improve their behaviour
(2) Need to provide adequate training and assistance
(3) Need to document activities of both employer and employee
Wrongful Dismissal (Cause of Action) - Employer’s Defences
(1) Dismissed for cause; or
(2) Dismissed and adequate notice (or payment in lieu of) provided.
Even if cause is discovered after dismissal, this can be used as defence.
Constructive dismissal
when an employer unilaterally makes substantial changes to the terms of an employee’s job or creates a hostile work environment that forces the employee to resign
Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 313
If an employer:
wrongfully dismisses and
Engages in high-handed or malicious conduct; and/or
Commits an independent actionable wrong during the dismissal process;
Then the court may:
Extend the notice period (Wallace damages).
Award damages for mental distress or punitive damages.
3 categories of damages
employment standards act, common law damages, punitive damages
