Employment Law Flashcards
three types of employment relationships
- Employer-employee (formerly known as master-servant)
- Independent contractor
- Agency – agent/principal relationship
2 main tests for independent contractors or an employee
Control test:
- Told what to do, how to do it, when to do it
- If yes they are an independent contractor - Who owns tools; who runs the risk of profit/loss?
- Is he/she paid an hourly wage or a salary?
Organization test:
- Does he/she work for just one company?
- If yes then usually they are an employee with exception - Is he/she subject to group control?
- Must he/she attend meetings?
- If yes, probably an employee - Is he/she an integral part of company?
- If no, probably an independent
What area of law governs independent contractors?
Contract law
Why does the distinction between employee and independent contractor matter?
- vicarious liability – not liable if there is a screw up i.c.
- wrongful dismissal
- application of Employment Standards Code
- Tax rates
- # 1, 2, 3 are all applicable to the Employer-Employee relationship. These issues don’t usually come into play if the worker is an independent contractor.
- # 4 – tax rates are different for employees and independent contractors (IC).
Employer-employee relations
Employer- employee relationships are governed by both the principles of contract law as well as by legislation
What are the 3 main responsibilities of the employer?
- Provide safe workplace and provide good working conditions
- Pay wage
- Hire competent employees
Employees responsibilities
- Possess skills claimed
- Exercise themselves in a careful and competent manner
- Follow reasonable orders
- Treat employer’s property carefully
- Honest, loyal, courteous
- Punctual, present
- Fiduciary duty
employer must establish pay periods:
- at least one pay period per month
- must pay in Canadian dollars (cash, cheque, direct deposit)
- Minimum wage
TERMINATION OF EMPLOYMENT by whom and how
- by employer
- by employee
- notice periods
- layoff and recall
4 Main ways employment can be terminated
- Specified term: which ends at the time period specified
- example: contract for services for 1 year - Reasonable notice - 2 week notice
- Pay in lieu of notice
- Firing immediately for “just cause”
Name 3 instances when notice is not required to be given to an employee
- just cause
- employment of less than 3 months
- term of work ends
- laid off after refusing reasonable alternative work
- seasonal work
List examples of the types of conduct for which an employer can terminate (fire) an employee for “just cause”.
- serious absenteeism
- consistent tardiness
- habitual negligence
- incompetence
- harassment
- immoral conduct
- impaired (drugs or alcohol)
What is Wrongful dismissal?
Termination without reasonable notice, pay in lieu or just cause
What is Condonation?
Conduct from your employee that, as an employer, you don’t like but you don’t bother to address or correct it and you might even give them a positive employee evaluation just to avoid a hassle. You are able to sue for wrongful dismissal.
What damages are available for wrongful dismissal?
- Damages for time unemployed (wages, benefits)
* Damages for pay in lieu of notice
