Midterm Review Questions Flashcards
What have workers given up for their rights under the present injury compensation system? Do you think that they have benefited from this trade-off? Why? What do you think would happen if the right to sue was reintroduced to the system?
the underlying principles of the workers’ compensation system tend to be generally supported by employers and unions alike. Controversies, of which there are many, tend to center around benefit levels, eligibility requirements, and certain contentious issues such as benefits for chronic pain, stress, and occupational diseases. On the other hand, there are occasionally situations, such as where a worker suffers horrendous injuries as a result of the employer’s failure to follow basic health and safety requirements, where the benefits provided by the WCB system seem woefully inadequate to compensate for the losses suffered. Even in these extreme circumstances the employee has no right to sue their employer. In these situations, it is more difficult to justify this trade-offThe main policy concern with reintroducing the right to sue,even in very limited circumstances, is that it might undermine the current no-fault system. It could lead to a decrease inoverall benefit levels, because the most serious cases wouldhave separate legal recourse. Employer resistance to WCB assessments would increase because they would no longer befully protected from the uncertainties and costs of litigation
Sameera, an employee who worked in one of the retail outlets in a mall, slipped and fell on a patch of ice in the mall parking lot on her way to work. She injured herself and sued the owners of the mall fordamages. The mall owners appealed to the WCB, arguing that she was eligible for WCB benefits. The parking lot was a “common area” owned by the mall’s management company. The employee had parked in the portion of the lot designated by the employer for employees.
a) Why would the mall owners want Sameera’s injury to be covered by the WCB
if Sameera’s injury is covered by the WCB, she will not be able to sue the mall owners. Under the workers’ compensation system, employees covered by the system have given up the right to sue for work-related injuries in exchange for no-fault insurance benefits.
Sameera, an employee who worked in one of the retail outlets in a mall, slipped and fell on a patch of ice in the mall parking lot on her way to work. She injured herself and sued the owners of the mall fordamages. The mall owners appealed to the WCB, arguing that she was eligible for WCB benefits. The parking lot was a “common area” owned by the mall’s management company. The employee had parked in the portion of the lot designated by the employer for employees.
b.) In your opinion, is Sameera eligible for WCB benefits in these circumstances? Explain your answer
This fact situation is based on an Ontario case, Decision No2675/08, 2008 ONWSIAT 3329. The decision examines the phrase “arising out of and in the course of employment” in theOntario Workplace Safety and Insurance Act, which is similar to the wording used in the BC legislation.The Tribunal in the Ontario case found that the employee was covered by workers’ compensation benefits. An injury that occurs in a parking lot that is not the employer’s property (and is therefore not under its control) is usually not covered.However, in this case the employer had directed her to park in that particular part of the parking lot. It therefore had some control over her, and she was in the course of employment.The Tribunal noted that the reason the employer directed its employees to park in that area was to leave the better parking spaces for customers and that this direction furthered its own commercial interests
Why should an employer inform an employee in writing of its acceptance of their resignation?
There are some cases that suggest an employee may retract a written resignation up to the time that the employer formally communicates its acceptance of the letter. It is, therefore, good practice for an employer to send a letter to the employee confirming its acceptance of the written resignation as soon as possible after receiving it.
What should an employer do if it does not want an employee who has given notice of resignation to continue working?
The employer should not tell the employee that they are “fired”because this unnecessarily raises the issue of wrongful dismissal.The employer should simply accept the employee’s resignation and advise the employee that they will be paid throughout the notice period but should not attend work.
How might an employer benefit from an exit interview with a resigning employee?
An exit interview may provide valuable feedback to the employer about the reasons for the employee’s resignation, especially if these reasons raise questions about management style or other problems that may lead to further turnover in the department if not resolved.It is also an opportunity to remind the employee of their outstanding legal obligations, including the duty not to disclose confidential business information, and to return company property.If employees have the opportunity to leave with a more positive frame of mind, because of the quality of interaction during an exit interview, they can be better ambassadors for the employer in the community and the labour market.
You return to your office to find a letter of resignation on your desk fromStuart. This letter indicates that Stuart will be leaving in four weeks’ time.You are actually pleased with the resignation because Stuart has been a poor performer for some time. However, you are concerned that his performance will deteriorate even further during the notice period, so you would like Stuart to leave immediately. What should you do?
First, you should immediately provide Stuart with a letter confirming that you accept his resignation. This prevents Stuart from being able to retract his resignation by arguing that his“offer” to resign was never “accepted.”In addition to accepting his resignation, you can indicate in your letter that Stuart will be paid throughout the notice period but that he should not attend work during this period. In this way,Stuart will no longer be in the workplace but you have not “fired”him, thus avoiding potential additional liabilities.
You are a human resources consultant. One of your clients, an employer(Joseph), has contacted you about the following situation. He has just finished a performance evaluation meeting with one of his employees,Allan. Allan became very upset during the meeting, and at the end of it he got up and shouted: “Okay, if that’s the way you feel about me, I quit!”Joseph is delighted with the resignation because Allan has been a difficult employee from the time he was hired three years ago, but he wonders if there’s anything he needs to know about the law in this area before he starts hiring a replacement for Allan. Advise Joseph
Where an employee “quits” in what appears to be an equivocal or impulsive manner, the resignation is probably not effective unless further steps are taken. In this case, Allan is clearly upset when he makes this statement and it seems to be a spontaneous outburst. The employer should give Allan time to cool off (one to two days) and then speak to him about it. If Allan wants to retract his statement or denies making it, the employer should not proceed as if there had been a resignation. If Allan confirms his resignation, then the employer should ask Allan to put it in writing. Once the employer receives the written resignation, the employer should send an acceptance of that resignation
Define contextual approach?
In wrongful dismissal actions, modern courts look beyond the nature and seriousness of an employee’s alleged misconduct in determining whether the misconduct warranted summary dismissal. Courts now look at the entire context of the employment relationship, including the employee’s length of service, performance, disciplinary history, and any mitigating circumstances.Where the employee has a substantial length of service and another wise good work and disciplinary record with an employer, courts rarely find that a single act of misconduct warrants summary dismissal
Define without prejudice
Without prejudice means without an admission of wrong doing in a legal dispute.
According to case law, what type of off-duty conduct justifies summary dismissal?
Generally, off-duty conduct cannot provide just cause for termination. An exception is where an employer can show that the employee’s off-duty conduct harmed its business or reputation. There must be a substantial and real connection between the off-duty conduct and the employer’s business.Relevant considerations include the employee’s position, the nature of the off-duty conduct, and how the matter reflects on the employer’s business.
Nicole, a 27-year-old mother of four, had worked at the counter of a Tim Hortons doughnut shop for three years. One day she was seen giving a Timbit to a crying child who came into the shop with a regular customer.When the manager of the store confronted her about it, Nicole readily admitted to giving the Timbit away without paying for it. She was aware that this was against the employer’s policy, but she had been busy at the time and did not go to her purse to get the 16 cents at the time. Also, knowing that day-old Timbits were given away to small children in the store regularly, she expected to get a reprimand at most. However, themanager fired her on the spot. Nicole was so upset that she called herlocal newspaper when she got home and her firing became headline news(see Curtis Rush, “Tim Hortons Rehires Mother Fired over Timbit,” TorontoStar [8 May 2008]). (A day later the owner of the franchise called and offered Nicole a job at another of his franchises.) Given the media attention the story garnered, it is clear that in the “court of public opinion”the employer did not have just cause to dismiss Nicole. However, did the employer have just cause under the common law? Explain your answer by referring to the principles upon which just cause dismissal of non-union employees is based
Historically, “theft was theft,” and under the common lawvirtually any act of dishonesty was considered just cause fordismissal since it was seen as undermining the employer’s abilityto trust that individual. However, since the Supreme Court’sdecision in McKinley v BC Tel, even where dishonesty is thealleged ground courts have required employers to consider thenature and seriousness of the theft as well as the overall contextof the employment relationship before deciding whether justcause has been established.In this case, there are a number of factors that suggest that theemployer’s response was disproportionate to the employee’sactions: The employee did not receive any personal monetary benefitfrom her actions—in fact she gave away the Timbit to help outa regular customer. It was common in the store to give away day-old Timbits toyoung children, which makes Nicole’s gift of a “fresh” Timbitseem like a trivial infringement of store policy. Only 16 cents’ worth of product was involved (however, theamount is not critical to a finding of just cause if other factorslead to a finding of serious breach of trust). Nicole readily admitted what she had done. Nicole had three years of service. Nicole had a reasonable explanation for why she did not payfor the Timbit immediately
