Employment Law

Question 1

Regulatory/statutory regime of work law

Answer 1

Statutes that apply to work relationships
Mitigate inequality of bargaining power between employer and employee
Restrict freedom of contract, impose minimum standards
Employment Standards Act of Ontario

Question 2

Common law regime of work law

Answer 2

Law of contracts and torts wrt to individual employers and employees
Need element of consideration (work for wages)

Question 3

Collective bargaining regime/labour law

Answer 3

Workers can bargain collectively via union representation

Unionized workplaces follow Grievance Arbitration Procedure (don’t file lawsuit or go to tribunal)

Question 4

Differences between contract of employment and regular contracts (4)

Answer 4

All obligations are voluntarily assumed
Work is an ongoing, changing relation, not a one time transaction
Work cannot be separated from the worker’s identity like other commodities
Employment is marked by market inequality (individuals lack bargaining power and necessary info)

Question 5

Defining employee

Answer 5

Legally defining feature of employment contract is employer’s right of control, hierarchical relationship
Employee status gives employee common law and employee law entitlements

Question 6

Employees vs independent contractors

Answer 6

Contract of service vs contract for service

Independent contractor is performing services as a person in business on their own account

Question 7

Braiden v LaZboy Canada

Answer 7

About: independent contractors

Court ruled plaintiff was employee (not independent consultant like LaZboy said), entitled to sue for wrongful dismissal

Question 8

Keenan v Canac Kitchens

Answer 8

About: dependent contractors
Court held that plaintiffs were dependent contractors (between employee and independent contractor), entitled to sue for wrongful dismissal

Question 9

ESA s5 (minimum standards)

Answer 9

Employment contracts cannot waive an employment standard, if a contract provision is better than the minimum standard than the contract provision takes precedence

Question 10

ESA s54 (notice of termination)

Answer 10

Employers must give employees written notice of termination (1 week’s notice per year of employment, or 1 month/year in common law) or pay lump sum equal to notice period

Question 11

ESA s55 (not entitled to notice or pay)

Answer 11

These employees aren’t entitled to notice of termination or termination pay

• has fixed term contract
• on temporary layoff
• guilty of willful misconduct/disobedience/neglect of duty

Question 12

ESA s64 (severance pay)
s65 (calculation)

Answer 12

Employer must pay severance pay upon termination if employee has been employed for 5+ year, and:
- severance occurred because of discontinuation of business of mass lay off
- employer has payroll of $2.5 million or more
Severance pay is calculated as 1 week or month of regular wages per year of employment

Question 13

ESA s97, 98 (filing act/complaint)

Answer 13

Employee can’t file common law act about dismissal if they have already filed complaint under ESA
Vice versa

Question 14

ESA s5 (human rights)

Answer 14

Every person has right to equal treatment wrt employment

Question 15

ESA s34, 45, 36 (tribunal application, remedies for infringement, other remedies)

Answer 15

Person can apply to tribunal up to 1 year after alleged rights infringement
Tribunal can order monetary compensation or any other appropriate restitution if employee’s rights have been infringed on
Court (not tribunal) has similar powers in a civil case

Question 16

Wrongful dismissal (common law)

Answer 16

Employment contract is presumed to be terminable by either party, if there is no just cause then there must be reasonable notice
Employee must take steps to mitigate losses of wrongful dismissal, otherwise damage award may be reduced

Question 17

Determining reasonableness of termination notice at common law (4)

Answer 17

Character of employment
Length of service
Age of servant
Availability of similar employment wrt to experience/training

Question 18

Machtinger v HOJ Industries

Answer 18

About: implied term of reasonable notice
Trial judge and SCC held that employee agreement to 0-2 weeks of termination notice was not valid due to unequal bargaining power

Question 19

Just cause

Considerations for just cause (6)

Answer 19

If employer in wrongful dismissal case can prove employee displayed willful misconduct, they are not obligated to provide notice or pay

• nature of employee’s position, misconduct, length of service and disciplinary record
• nature of employer’s business
• off duty conduct
• contractual language and workplace rules
• doctrine of culminating incident
• progressive discipline/condonation

Question 20

McKinley v BC Tel

After acquired cause

Answer 20

About: Just cause for dismissal
Plaintiff initially took leave of absence for stress, while transitioning back to work BC Tel fired him for alleged dishonesty
Employer can use defense of just cause even if ‘cause’ was discovered after dismissal
Court held that plaintiff’s dishonesty was not of such severity that it undermined the employment relationship and was not just cause for dismissal

Question 21

Test for dishonesty as just cause for dismissal (3)

Principle of proportionality

Answer 21

Dishonesty undermines employment relationship if it
- violates an essential condition of the contract
- breaches the faith of the work relationship
- is inconsistent with employee’s obligations
Balance must be found between severity of misconduct and consequences of dismissal without notice

Question 22

Belyea v Syncrude

Answer 22

About: just cause for wrongful dismissal
Plaintiff had history of aggressive behaviour and lack of remorse
Court concluded that dismissal after another violent outburst was justified

Question 23

Damages for bad faith dismissal (3)

Answer 23

Compensatory = puts wronged party in position they would have been if contract had been fulfilled (what employee might have enjoyed)
Aggravated/moral = compensate for emotional suffering from employer's bad faith conduct in dismissal
Punitive = punishes employer for reprehensible conduct

Question 24

Wallace v United Grain Growers

Problems with this (3)

Answer 24

About: bad faith dismissal
Plaintiff was recruited by defendant and promised job security, was abruptly fired with no explanation which caused plaintiff emotional and employment difficulties
SCC held that employer’s conduct justified an additional award
‘Wallace bump up’ was difficult to measure, its purpose was unclear, and could potentially apply to every case

Question 25

Honda Canada v Keays

Answer 25

About: bad faith dismissal
Upon appeal, SCC held that there was no cause for dismissal, but ended Wallace bump up approach by saying that in bad faith dismissal cases damages should only be awarded if employee’s losses were reasonably foreseeable
Overall held that Honda didn’t act in bad faith, plaintiff was entitled to punitive or aggravated damages because he couldn’t prove that he suffered actual harm

Question 26

Ruston v Keddco Manufacturing

Answer 26

About: bad faith dismissal
Plaintiff was dismissed for alleged fraud, employer tried to threaten him to not sue for wrongful dismissal
Judge awarded damages for 19 months reasonable notice for wrongful dismissal, aggravated damages, and punitive damages