Employment law Flashcards
whats employment law about
A contract of employment is a contract where a person, the employee, undertakes for a limited period to do work for the remuneration (payment) according to the instructions and under the direction, or control of another person – the employer
what are the two terms of employments
fixed term and indeterminate term
What is the duty of the employer
Health, Safety and dignity : the employer has the obligation to provide employees with a physically and morally safe working environment (clean, heating, lighting, safe from physical and emotional intimidation)
An employee may be subject to a non-competition clause. What’s that?
the parties may stipulate in writing and in express terms that even after the termination of the contract, the employee may neither compete with his employer, nor participate in any capacity whatsoever in an enterprise which would then compete with the employer
What are the duties of the employee
Fiduciary duty : employee has a fiduciary duty to employer – the employee is bound to not only carry on his work with prudence and diligence but also to act faithfully and honestly and not to use any confidential information he may obtain in carrying on or in the course of his work
Confidential information : all information relating to the employer’s business including client lists, pricing, intellectual property, financial information etc.
the information that you created as part of your work belongs to you or the employer?
Information that you, as an employee, created as part of your job, belongs to your employer
Must a non-competition clause be in writing and expressed terms?
Yes. it must be clearly written, there is no presumptions.
what are the 3 elements of a non-competition clause?
Time that you cannot compete
Places you cannot compete
Type of jobs that you cannot compete for
is the court more lenient with b2b or business to the employee for non-competition clause?
More lenient for a b2b scenario. In an employer-to-employee scenario, it’s an unbalanced negotiation since the employer has all the control and power. Oits rare for the court to enforce a non-competition clause.
Who must prove the 3 elements of a non-competition clause to the court?
The employer must prove to the court that all 3 elements of the clause are reasonable in their scope.
what are the 2 types of whistle blowing
internal and external whistle blowing
whats one example on an ethical recourse
whistle blowing
what is internal whistle blowing
an example would be where an employee tells his/her manager/supervisor, in good faith (part of their fiduciary duty), about a problem that is occurring in the business
what is external whistle blowing
an example would be where the employee’s internal complaint to his/her manager/supervisor was not acted upon by the company, and the problem has not been solved. The employee may wish to make his/her complaint/concern about the problem public, by advising the appropriate government agency
is external whistle-blowing considered a breach of fiduciary duty?
Under CCQ 1472 a person who whistle blows in good faith cannot be sued by the company for damages
what are examples of serious reasons for firing an employee
employee caught stealing, violent behaviour, habitual lateness, insubordination
what are the two options to do when an employer terminates an employee under undeterminate term
the employer has the option of giving the employee severance pay (equal to the notice period that the employee would otherwise have had to work) or give a notice.
do employees who get fired for serious reasons get a notice?
no. and no severance pay.
does CCQ 2094, serious reasons, apply to both fixed ad undeterminate terms? or only one of them?
applies to both
how can you terminate a fixed term contract before the due date?
For serious reason (CCQ 2094), either party may terminate at any time. If there is no serious reason, the only way to terminate an employment contract for a fixed term would be by agreement of the two parties. Fixed term employment contract therefore often contain a contractual clause allowing either party to cancel the contract by giving a pre-determined notice
You can be fired at any time as long as
you receive reasonable notice, and as long as the reason for firing you is not contrary to the law (i.e. discrimination under the Quebec Charter)
instead of giving notice when firing someone you can
give severance pay
why are cameras allowed in the office
for safety and thef reasons
whats Public Order Unjust Termination
the employer cannot volountarily renounce to their right to sue the employer. the clause is deemed non enforcable. Its of PUBLIC ORDER.
if the employee dies
the contract ends with it
if the business (continue operation) is sold
the employees go with it
is an independent contractor paid a normal salary?
no. Bills client a fee for services, is not paid a salary ex. A lawyer engaged to review a contract for a client
Does the concept of subordination applies to an independent contractor?
No. they’re not your employee.
what does LSA stands for
Labour Standard Act
what are the employers obligation when dealing with LSA psychological harassment
be proactive!! need to be prevented.
Whats vicarious liability ? when does it apply?
situation where the employer is liable for the employee. it applies when the employee injures someone due to their fault and are in the performance of their job. BOTH EMPLOYEE AND EMPLOYER ARE LIABLE
How do you assess the damages for vicarious liability?
can be bodily, moral and/or material in nature. These damages are calculated in the same fashion as damages for breach of contract (CCQ 1458). These damages compensate the victim for the actual provable damages that the victim (creditor/injured person) suffered.
They are to compensate, if you cannot prove damages, you wont get compensated.
what are examples of employers being proactive about dealing with LSA psychological harassment
employer should have provided in the corporate Code of Conduct detailed information and a clear procedure to report such concerns and issues
regularly remind employees of Code of Conduct obligations and prohibition against psychological harassment through HR memos and meetings
if you believe you have been a victim of psychological harassment you have ________days from the last incident of harassment to file a complaint with the Labour Standards Commission (prescription period)
2 years
What are the 7 powers of the LSA commission
- Order employer to reinstate employee
- Order employer to pay employee lost wages (for when he/she was not working)
- Order employer to take reasonable action to put a stop to harassment (possibly fire harasser)
- Order the employer to pay punitive and moral damages to employee 🡪 Moral (psychological) damages for stress and aggravation that the employee suffered, Punitive damages, payable to the employee, to punish the employer for not stopping the harassment and to send a warning to other employers not to act in a similar fashion
- Order the employer to pay to the employee an indemnity for loss of employment (if you do not want your job back the indemnity is severance pay)
- Order the employer to pay for psychological counseling (psychological counseling services might not be covered by Medicare, if the employee has been traumatized, the employer must pay for the counseling treatment)
- Order the modification of the employee’s disciplinary work record (employee’s work record should be corrected if it contains false information – i.e. employer filed false complaints against the victim in an attempt to discredit the victim – the record should also be corrected if the employee has received disciplinary notices regarding poor performance where the employee’s work quality deteriorated due to stress and employer’s refusal to take appropriate steps to stop the harassment)
are punitive damages available under LSA ?
Only compensatory damages are available, punitive damage are available where sections of law allows it. (punitive damage is discretionary of the judge usually)
Recourse good & sufficient cause (LSA 124): an employee credited with 2 years of uninterrupted service in the same enterprise who believes he has not been dismissed for good and sufficient cause may file a complaint with the Commission within _______________ days of being dismissed
45 days
Recourse good & sufficient cause (LSA 124): ________ needs to prove to the court that the employee was fired for good and sufficient cause
The employer
what are valid reasons for firing an employee (under the LSA)
Valid reasons for termination include economic reasons or serious workplace offense (serious reason CCQ 2094)
LSA 82 : where you do not get your job back, you are entitled to the following notice/severance, based on the amount of time that you worked for the employer:
Between 3 months and 1 year = 1 weeks’ notice/pay
Between 1 to 5 years = 2 weeks’ notice/pay
Between 5 to 10 years = 4 weeks’ notice/pay
10 years of more = 8 week’s notice/pay
What is the situation where an employee would sue under LSA and not CCQ
The LSA 124 used for situations where employee wants his/her job back and can file at the Commission without hiring a lawyer
What is the situation where an employee would sue under CCQ and not LSA
those who do not want their job back. Such employees can sue in traditional court, represented by a lawyer, for compensation based on the failure to receive reasonable notice/severance pay from the employer
do you need a lawyer to sue under LSA
no
do you need a lawyer to sue under CCQ
yes
LSA 82 does not apply to employees in the following (4) situations:
- worked less than 3 months,
- hired under a fixed term contract that has expired,
- committed a serious fault (terminated for serious reason CCQ 2094),
- for whom the end of the contract of employment or layoff is a result of superior force
Is the severance pay between the LSA and CCQ different?
Yes
