Legal issues Flashcards
What is a constructive dismissal? How employer avoid a constructive dismissal accusation?
= employer/team makes a change without employees consent that significantly impacts their job, conditions and is made without advance notice (could have been change/treatment in attempt to force them to quit, could be accidental)
avoid: give advance notice, or give big ol pile o money
What is just cause? how are terminations handled when do vs dont have just cause?
= actual wrong doing on part of employee (thet, insubordination, defamation, breach of contract, violence, impaied on job, etc.)
with JC: immediate termination, no severance or warning required
without JC: need provide advance notice or severance pay (enough to tide them over until find new job)
What helps determine severance pay/advance notice length?
- age (older = need more time to find work)
- length of service (longer = worth more $)
- state of economy and labour narket
- emplyoees position
- promise of employment security
- employee was induced to move to take the job (unfamiliar city = much harder to find new job without connections)
What is the employment standards code?
= sets minimum requirement for notice of termination
- it doesnt replace common law rights, so employer should be giving more
What happened in the Wallace v Growers case? What was this type of claim named as later (after another case I think..)?
ruled that cases of terminations where employer acted on bad faith/in a harsh manner = the court extends the notice period/amount of severance (if harm is proven - fals allegations, lying, firing employee to avoid paying pension, benefits, etc.)
now known as a ‘Honda claim’
What can you do to avoid a conclusion that employer was acting in bad faith?
- fire them in private meeting, in person if possible
- earlier in the week + day so they have more time to job search
- bring severance package /offer
- offer out placement help (counselor, referral letter, connections)
- Dont make unsubstantiated allegations
- Confirm the dismissal in writing, as well as paycheque, etc.
- investigate employee’s personal circumstances
- HR should be there
What is a wrongful hiring?
= a careless statement was made in hiring process (resulting in a misrepresentation of the position/company)
- might convince employee to take position
- felt it was reliable but really it wasnt
- turns out to be not true
- causes employee to suffer a loss
ex: you’ll for sure have a job for the next 3 years with this big project
What happened in the King case?
interviewer said the project would last at least 3 years and there would likely be more after that, but instead final approval for the project had not been granted when he was hired, then the project was cancelled. King began experiencing health problems following that as well (he was just given a couple make up projects) and organization wants to get rid of him
What is the solution for a wrongful hiring?
remedy of rescision!
- employee may repudiate (refuse to fulfill) the contract
- Employee can claim damages so as to restore them to where they would be had they not entered into the contract.
ex: compensation for lost salary (both from less work than promised, and from while unemployed), bonuses, benefits, moving expenses, sale of home etc.
How to avoid wrongful hiring?
1) Due diligence: know Job Description, Pay Scales, Policy Manuals.
2) If aware changes are coming, inform candidate.
3) If don’t know an answer to their Q, check first.
4) Provide realistic job previews
5) Put things in writing
and/or can do a contract clause: “this agreement constitutes the entire agreement b/t parties and supersedes all previous offers, negotiations, representations, agreements, and communications between parties, either oral or written”
Does an employee have to give notice f quitting?
common law says 2 weeks, but employer often wont sue unless they take shit when they leave
what is a duty of mitigation?
= dismissed employee has a duty to take reasonable steps to find alternate employment. If not compensation will be reduced
What are the two typical options for severance offers?
1) lump sum (best if have job lined up already cuz then def get the money)
2) salary / benefit continuance (best if not sure of job market or need benefits continued)
What situations does human rights code apply?
1) advertising and applications for jobs (cant ask if someone is married, cant do any of that ‘strong men wanted’ bullcrap)
2) employmet, termination, other employmenr conditions (benefits, pay, schedule, promotions)
3) equal pay for similar work, irrespective of gender
4) trade union membership
What are the prohibited grounds according to alberta human rights legislation?
1) Race
2) Gender Orientation
3) Ancestry
4) Place of Origin
5) Marital Status
6) Family Status Identity & Expression
7) Physical Disability
8) Mental Disability
9) Source of Income
10) Religious Beliefs
11) Sexual
12) Colour
13) Age (18+)
14) Gender
