Employment Law Flashcards
Employment Law
- contractual relationship where one party, the employer, is authorized to direct and control the work of another party, the employee
- Governed by: Statute, Labour Union, Common Law
Characteristics of Independent Contractor
- hired to complete a task or deliver a result for a fee
- owns the tools necessary to do the work
- controls hours and time of work
- controls how the work is done
- may work for others
- no tax, pension, benefit, or government deductions withheld from payment
- invoices for work done and charges GST/HST
- pays own expenses
- assumes the risk of profit or loss
Dependent Contractors
- they have their own businesses and control over the completion of their tasks, dependent contractors work primarily with one client over a long period of time and therefore are economically dependent on that client
- Common law grants them one of the legal protections of employees.
- Dependent contractors must be given reasonable notice of termination of the relationship
Employment Law (Details of Torts, Contract, Duties of Performance)
Torts
- If employee commits a tort, vicarious liability - but if the tort happens outside of work, only employee is liable
- Negligent Hiring
- Wrongful Referral
Contracts
- Vicarious Performance (doing something for someone when you are not in a contract with them)
Duties of Performance
- Employee = duty to obey, to exercise skill and care, duty of good faith and fidelity
- Employer = Duty to pay
Termination of Employment K
- discharged when there is no fixed term by way of notice
- notice = time = $
- if an employee steals from company, the K can be terminated immediately (payment in lieu of notice is given to ease the burden)
- indefinite hiring where there is no termination
At common law = reasonable notice
Trade Practices = often suggest longer than minimum as normal within the industry
Notice Depends on: - length of employment character of employment age of employee education or training of employee experience of employee availability of similar employment in the industry (market conditions)
Dismissal for Cause (Misconduct, Disobedience, Incompetence, Illness), Employer’s Role
- Dismissal without notice or further obligation by the employer when the employee’s conduct amounts to a breach of the contract
Misconduct:
- Does not have to cause economic loss
- Crimes – especially embezzlement or theft
- Bad behaviour
- Where reputation of employer is affected
- Other employees are affected
- Causes direct financial loss
Disobedience:
- Wilfully disobeying:
- A reasonable; and
- Lawful request
Incompetence
- Need for implied or express term of competence
- Express: stating in a resume that one possesses certain required skills
- Implied: applying for a job that requires certain specific skills
- Doctrine of Condonation applies – condoning incompetence makes a claim for dismissal for incompetence difficult
Illness
- Not a breach of K – Frustrating event
- Role of employment insurance
Employer’s role:
- Need for warnings to employee – providing the opportunity for the employee to improve their behaviour
- Need to provide adequate training and assistance
- Need to document activities of both employer and employee
Wrongful Dismissal
- Damages = (Rate of pay + Benefits) X Notice = $$$ → plaintiff is entitled to this when they were wrongfully dismissed until they find a new job
Mitigation: - Contract law requirement to act reasonably to reduce losses
- Must try to obtain reasonably comparable employment - if successful, it reduces the amount that the employer has to pay
- Court will reduce damages award if there is a failure to mitigate
- If a plaintiff (employee) successfully mitigates, they receive the difference between Notice and income as damage
Mental Anguish
- Problems of trying to assess intangibles such as “pain and suffering” and “humiliation”
- courts don’t compensate for this
Reinstatement
- getting your job back
- equitable remedy
- impersonal nature of large corps
Employer Defences - Wrongful Dismissal
- Employer’s defences:
- Employee was dismissed for cause; or
- Adequate Notice was provided
- NB if cause is discovered AFTER the dismissal, the employer can use this in their defence
- Constructive Dismissal = Wrongful Dismissal
Proving Adequate Notice – Factors considered by the court as per Bardal v. Globe and Mail:
- Character of the employment (easier to replace an intern than a CEO, CEO should be noticed very well in advance)
- Length of service
- Age of the employee (older you are, the harder it is to find new job, then you would need a longer notice time)
- Availability of similar employment
- Experience, training and qualifications of employee
- Whether the employee was induced to leave secure employment (if you want another lawyer to work for you that worked for another firm for 10 years, and tell her you will pay double, then you can’t afford her after a month, the judge will take this into account because you induced her)
- Bad faith on the part of the employer
- Expenses incurred seeking other employment
Employment Welfare Legislation
- sets a minimum standard of fair working conditions for all employees
ex. - Human Rights – private sector
- Charter of Rights and Freedoms – government
- Pay Equity Legislation – equal pay for equal work
- Employment Equity Legislation- federal only
- Regulation of working conditions – ESA,Labour codes, Health and Safety
- Employment Insurance Act – insurance against unemployment
Workers Compensation
- No fault scheme
- Applies to certain industries
- Employers are required to pay into the fund
- Injured employee can apply to the fund except if it was the employee’s willful misconduct that caused the injury – exception: death or permanent disability
