Employment Law Flashcards
Accommodation
a human rights concept that refers to making changes that allow a person or group protected by the Human Rights Code to participate in the workplace.
Administrative Agency
a body created by a statute to administer that statute; They investigate complaints, make rulings, and sometimes issue orders
Administrative Tribunal
a quasi-judicial authority whose rules are typically governed by a subject-specific statute
Adverse Impact discrimination
unintentional discrimination that has an adverse effect on members of certain groups (aka constructive discrimination)
Affirmative Action
a policy designed to increase the representation of groups that have suffered discrimination
Agent
a party who has the capacity to bind another party in contracting with others
Aggravated Damages
damages awarded to compensate a party for non-monetary losses intentionally or maliciously caused by the other party’s conduct
Agreements to Vary
agreements between employers and employees to vary from legislated minimum employment standards with respect to daily and weekly maximum hours of work, overtime hours and pay, and vacation time
Appellant
the party appealing from a previous decision of a lower court or tribunal
Application
a claim of a human rights violation
Arbitrator
a person who decides disputes on the basis of evidence submitted by the parties
Attestation Clauses
a clause on a job application form that states that the information provided is true and complete to the applicant’s knowledge and that a false statement may disqualify the applicant from employment or be grounds for dismissal
Bad Faith
improper motivation
Balance of Probabilities
the degree of proof required in civil law cases wherein a proposition is established as fact if it is shown that the proposition is more likely than not to be true
Bargaining Unit
a group of employer’s employees whom the trade union is entitled to represent
Binding
requiring a lower court to follow a precedent from a higher court in the same jurisdiction
Bona Fide
in good faith
Bona Fide Occupational Qualification (BFOQ) or Requirement (BFOR)
a reasonably necessary qualification or requirement imposed in a sincere belief that it is related to job performance
Bumping Rights
on a layoff, the right of employees with greater seniority to displace more junior employees
Joint Health & Safety Committee (JHSC)
an advisory health and safety body that is composed of equal numbers of management and worker representatives; generally required in workplaces with 20 or more workers
Judicial Review
the process where a party asks a court to reconsider a decision of an administrative tribunal to ensure that, for example, it observed the rules of natural justice
Just Cause
very serious employee misconduct or incompetence that warrants a dismissal without notice
Case Citation
A reference for locating a specific case that includes style of cause (case title), year, volume number, series number, page of the case report in which it appears and court
Case/Common Law
law made by judges, rather than legislatures, that is usually based on the previous decisions of other judges
Cause of Action
the factual basis on which a legal claim can be made
Certify
in a class action claim, have a civil court judge decide that there are common issues of law or fact involved, a representative plaintiff will adequately represent the class, and a class action is the preferred proceeding
Civil Law
law that relates to private, non-criminal matters such as property law, family law, and tort law; alternatively, law that evolved from Roman law, not English common law and that is used in certain jurisdiction such as Quebec
Collective Agreement
a written agreement between an employer and its employees’ bargaining agent that contains the terms and conditions of employment
Conditional Offer of Employment
a job offer that is subject to certain requirements being met
Condonation
implied acceptance by one party of the conduct of another party; once misconduct is condoned , an employer cannot dismiss an employee for that misconduct without any new misconduct
Consideration
a mutual exchange of promises required, along with an offer and an acceptance, to create an enforceable contract.
For example, in an employment contract, consideration is a promise of payment in exchange for a promise to perform the work
Constitutional Law
In Canada, a body of written and unwritten laws that set out how the country will be governed, including the distribution of powers between the federal government and the provinces
Constructive Discrimination
unintentional discrimination that has an adverse effect on members of different groups
Constructive Dismissal
fundamental breach by an employer of an employment contract that entitles an employee to consider herself dismissed and to sue the employer for wrongful dismissal
Contextual Approach
the increasing frequency of courts to view employee misconduct within the overall context of the employment relationship, including length of service and work and disciplinary record, in determining whether the employer had just cause for dismissal
Contra Proferentem
a doctrine for interpreting contracts; where the terms of a contract can bear two or more meanings, the ambiguity is interpreted against the party who drafted it.
Contract Law
an area of civil law that governs agreements between people or companies to purchase or provide goods or services
Contributory Negligence
a common law defense in an action arising from negligence in which it is asserted that the plaintiff’s own negligence directly causes or contributed to the injuries suffered.
Costs
compensation for legal fees and expenses that the other party in a lawsuit is entitled to recover
Co-worker Negligence
a common law defense in an action arising from negligence in which it is asserted that the plaintiff’s injuries were caused by the negligence of the plaintiff’s coworker, not the employer
Crown
a lawyer employed by the state to prosecute a criminal offense; also refers to the government
Damages
losses suffered as a result of the other party’s actions
Defamation
something that tends to harm a person’s reputation, either through slander (things said) or libel (things written)
Defendant
in civil law, the party against which an action is brought
Discrimination
treating a person or group differently or negatively, based on a prohibited ground of discrimination under the Human Rights Code
Dismissal for Cause
dismissal without notice or pay in lieu of notice, based on just cause
Distinguishable
term used for a precedent from a higher court that a lower court decide not to follow, usually because the facts in the case differ
Due Diligence Defense
the onus on a party in certain circumstances to establish that it took all reasonable steps to avoid a particular event
Duty of Care
a legal obligation to take reasonable care in the circumstances
Duty to Mitigate
the obligation to take all reasonable steps to lessen the losses suffered as a result of a breach of contract
Employee
an individual who is in an employment relationship with an employer
Employment Equity
a range of measures, including affirmative action and other programs, aimed at ensuring equality in employment for certain disadvantaged groups
Equal Pay for Equal Work
the legal obligation to pay male and female employees who perform substantially the same kind of work, in an establishment at the same rate, unless one of the legislated exceptions applies
Essential Job Duties
the core duties and requirements of a job
Fair Information Principles
the ten principles that underlie the Personal Information Protection and Electronic Documents Act for proper collection, use, and disclosure of personal information
Female Job Class
Generally, a job class in which 60% or more of the positions are held by women
Fiduciary Employee
an employee who holds the position of trust and could significantly affect the employer’s interests, and who therefore has special obligations to the employer
Frustration of Contract
where a contract becomes impossible to perform through the fault of neither party
Gender-Neutral Job Evaluation System
a system that evaluates the relative value of positions in an organization in a way that does not favour factors found in jobs typically performed by men
Health & Safety Representative
a person who exercises rights and powers similar to those of the joint health and safety committee; required in workplaces with 6 to 19 employees
Implied Terms
where the parties to a contract did not address a particular issue, the courts may deem certain contractual provisions to be part of the agreement; for example, the obligation of an employer to provide reasonable notice of termination to an employee is an implied term unless the parties expressly agreed otherwise
Independent Contractor
a self-employed worker engaged by a principal to perform specific work
Indictable Offense
a more serious offence than a summary offence
Internal Responsibility System
an approach to health & safety that is based on the belief that healthy and safe workplaces require the participation of all the workplace parties
Litigation
legal action
Lockout
An employer’s refusal to let unionized employees into the workplace following the expiry of a collective agreement or a failure to reach a first collective agreement, typically while the employer and union are attempting to negotiate a new collective agreement
Majority Decision
a decision reached by a majority of the judges hearing a case where a minority of the judges disagree, in whole or in part, with that decision
Male job Class
generally, a job class in which 70% or more of the positions are held by men
Material Change
A change that would have an impact on a decision or situation
Natural Justice
a set of rules that provide due process to individuals involved in legal actions, including the duty of courts and tribunals to act in good faith and without bias, and the rights of affected parties to be heard
Near Cause
the principle, now rejected by the courts, that misconduct that falls short of establishing just cause may be used to reduce the amount of reasonable notice owing
Negligence
an act or omission that involves no intention to cause harm but that a reasonable person would anticipate might cause harm
Negligent Hiring
failing to take reasonable care in the hiring process that results in foreseeable injury to a third party
Negligent Misrepresentation
Failing to take reasonable care in providing information that results in foreseeable injury to a third party
Nepotism Policies
employer policies that allow an employer to discriminate in favour of, or against, specified close relatives of employees
Non-Unionized Employee
an employee whose terms and conditions of employment are based on an individual employment contract rather than a collective agreement negotiated between an employer and a union
Notwithstanding Clause
a clause in the Canadian Charter of Rights and Freedoms that may be invoked by Parliament or provincial legislatures to override Charter protections
Onus of Proof
burden of proving a case or the facts involved in a dispute
Pay Equity
equal pay for work of equal value
Personal Information
information about an identifiable individual (other than name, title, or business address and number) as defined under PIPEDA
Persuasive
of a precedent from another jurisdiction or from a lower court, convincing but not binding
Plaintiff
in civil law, the party that brings an action
Precedent
a legal decision that acts as a guide in subsequent cases
Prima Facie
on the face of it
Prima Facie Case
a case in which the facts alleged by the plaintiff or complainant, if true, constitute a breach of law
Principal
the party who contracts for the services of an independent contractor; the party who can be bound by its agent
Privacy Comissioner
the commissioner appointed to investigate complaints of failure to comply with the requirements of PIPEDA
Privative Clause
a term in a piece of legislation that attempts to restrict the right to review a tribunal’s decision by a court
Probation
a period of time when an employee is monitored to determine his or her suitability for a job
Procedural Fairness
certain process rights that one party provides to another, such as an employer giving an employee an opportunity to respond to allegations against him or her
Progressive Discipline
discipline that is imposed in a series of increasing steps
Proportionality
The principle that the sanction must fit the offence
Punitive Damages
damages awarded to punish the employer for its malicious or oppressive conduct, rather than to compensate the employee
Rebuttal Presumption
an inference that a court will draw unless the contrary is proven
Recall Rights
the right to be called back to work after a layoff according to seniority level
Regulations
Rules made under the authority of an enabling statute
Remedial Legislation
law intended to right a societal wrong and provide a remedy, rather than to punish an offender
Respondent
the party opposing an appeal of a previous decision by a lower court or tribunal
Restrictive Covenant
An agreement that restricts an employee
s activities or conduct during or after employment; for example, a non-solicitation clause is a restrictive covenant
Separation Package
pay and benefits paid by an employer to a dismissed employee
Severance Pay
in Ontario, a one-time lump-sum payment made to a terminated employee in certain circumstances as set out in the ESA
Sexual Harassment
a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
Solicitor-Client Privilege
a rule of evidence that protects a client from having to divulge confidential communications with his or her lawyer made for the purpose of obtaining legal advice
Special Program
an employer program aimed at relieving hardship or promoting the employment status of disadvantaged groups
Special Service Organization
a non-profit social, religious, or other organization that serves the interests of a group that is protected under the Human Rights Code
Standard of Care
the level of diligence that one is expected to exercise
Standard of Review
the level of scrutiny that an appeal court will apply to the decision of a lower court or tribunal
Stare decisis
a common law principle that requires lower courts to follow precedents emanating from higher courts in the same jurisdiction
Statute Law
law passed by a government legislative body
Strict Liability Offence
an offence where the doing of the prohibited act is sufficient proof of the offence and the accused has the burden of proving that it took all reasonable care to avoid the offence
Strike
a refusal to work by a group of unionized employees following the expiry of a collective agreement or a failure to reach a first collective agreement, typically while the employer and union are attempting to negotiate a new collective agreement
Summary Conviction Offence
a less serious offence that is tried summarily
Third Party
someone other than the employer or the employee
Tort Law
a branch of civil law (non-criminal) that governs wrongs for which a legal remedy is available independent of any contractual relationship
Trade Union
an association formed for the purpose of representing a group of employees in all aspects of their employment relationship with their employer
Unconscionable
unreasonably harsh or unreasonably one-sided
Undue Hardship
difficult exceeding that which an employer is required to ensure when accommodating the needs of an individual or a protected group under the Human Rights Code; defined in the Ontario Human Rights Commission’s policy as the point when accommodation would alter the essential nature of an enterprise, substantially effect the economic viability of an enterprise, or produce a substantial health and safety risk that outweighs the benefit of accommodating a group or individual worker
Vicarious Liability
liability that arises when one party, such as an employer, is legally responsible for the acts or omissions of another party, such as an employee
Voluntary Assumption of Risk
a common law defense in which it is asserted that the plaintiff voluntarily assumed the risk of injury
Wallace Damages
damages (given by extending the reasonable notice period) formerly awarded to a dismissed employee because of the employer’s bad-faith conduct in the manner of dismissal
Without Prejudice
without an admission of wrongdoing in a legal dispute
Work Transition (WT) plan
a written agreement that sets out a plan for providing an injured worker with the necessary skills to mitigate the loss of earnings resulting from a workplace injury
Workplace Hazardous Materials Information System (WHMIS)
a national information system designed to provide workers and employers with essential information about hazardous materials in the workplace
Wrongful Dismissal
dismissal without just cause wherein an employer breaches its common law duty to provide reasonable notice of termination to an employee
