Module 6 Flashcards
which level of govt handles labout rules?
not expressly declared
federal government jurisdiction on employment law
if employment is work managed by federal govt- legislative authority of parliamnet (banking)
-if the employment is integral part of a federally regulated undertaking (like owkring in interprovicnial transportaiton)
when does provincial govt have jurdisitcion of employment law
AS LONG AS THE PLACE OF WORK (office where the mployees work) is locatied in a given province that province can control rules!!
DOES NOT MATTER WHERE THE LOCATION OR HEADOFFICE OF THE EMPLOYER IS
provinces have no authority over people living and wokring outside the province
what are key AB statutes regulating contracts of employemnet
- AB employment standards code:
- AB human rights act
- OHSA & Regs & Code
- PIP Act
- Workers Comp Act
what are the courts that address emplyoment law matters
ACOKINGS BENCH: wrongufl dismissal, breach of contract, other employment related civil claims, appeals from tribunals and admin bodies
ACJ: lower court, hwere dispute <100,000
What are tribunals
-AB human rights comission: quasi judicial, implements human rights act
- Employment standards body: responsible for enforcing employmetns tandards code
- Dispute Resolution & Decision Review Body: reveiws wcb board decisions and cna confrim or deny previous decisions
- OHS officers: enforce the OHSA code
emplymenet law resources
canlii
ab employment standards
ahrc
ohsa
workers compensation: policies CAN ONLY BE FOUND HERE!
key elemetns of employment relations
(mutual)
- Mutuality of Obligations: reciprocal duties that each party agrees to fulfill (compensation/ocmpleted work)
- control: employer supervision and providing guidance and training
___________________________________________ - Econ dependancy: the employee depends on the employer
- exclusivity: eployees can only work exclusively for one employer (unles sindep contractor)
- legal protections: there are legal rights and protections for employees
pros and cons of being an employee
employees:
employment benefits (reirement palns, stabiltiy, security),
predictable income,
employment protections (rights: min wage, overtime pay,termination rights),
lower repsonsibliy for expenses (like office space etc are covered by employer)
tax decutions and contribution
cons:
- limited flexibility
- less autonomty
- fixed comp
- no business opportunity
What is indpendant contractor
CONTracts FORRRRRRRRRRR SERVICE!! NOT a contract OF service!!!
completes projects or services for compensation
-> focus on completing a given task
pros and cons for indepedent contract
- flexibility
- autonomy
- negotiable reumneration
- tax deductions
- business opportunities
cons:
- lack of employeee benefits
- no protections
- unpredictable income
- legal obligatons
- responsibility for business expenses
What is the pricnipal legal test TO DETERMINE IF YOU ARE AN EMPLOYEE OR INDEP CONTRACTOR? 4 FOLD TEST
- which party maintains control of the work?
- like schedule, supervision, etc. - who rovides the tools to do the work?
- who owns the tools - Chance of profit?
- does worker have opportunity to increase income by taking on more clients/negotaite fees/increase efficiences - Risk of loss?
- what extent is the worker exposesd to fianncial risk?
No single consideration is conclusive!! look at all of the elements as well as the intention of the parties!!
use the table to compare: https://d2l.ucalgary.ca/d2l/le/content/619780/viewContent/6544796/View 24:27
Why is the disctintion important between employees and contractos?
- trend to wards contractors> employees
- common issue in employmenet setting (non-unionized)
- protective employmeent legislation applies only to employment standards
- human rights and ohsa apply to both
Tort of employer negligent misrepresetnation
- misrepresentation in the hiring process!!!
typical cenario: employee accepts position based on job description but it is different afterwards.
This was shown in Queen v. Cognos; SCR supported employee not employer, stating that there is a duty of care from the employer to the employees and misrepestning during the hiring process is wrong!!! breach of fduty of care
Negligent misrpreenstation test
- there must be a duty of care based on a special relationship (in frauudlent misrep the misrep is INTENTION!AL! here it is negligent)
- represetion must be untrue, inaccuracte, or misleading
- representer (employer) must have acted negligentlty [BREACH OF STANDRD OF CARE]
- rerpesentee (employee) must have relied in a reaosnable manner on the negligent misrepresentaion
- reliance must have been deterimental to the representee (emloyee) [MUST HAVE SUFFERED DAMAGES]
Queen case is the basis of this law; the test for negligent misreprestaion is OBJECTIVE!!!!! reasonable person- it does not matter what the hiring manager believes is true, but if they exercise diligence ensuring that the respresntaitons are accuracte
The [hiring manager’s] belief in the truth of his or
her representations is irrelevant to that standard
of care. The position adopted by the Court of
Appeal seems to absolve those who make negligent
misrepresentations from liability if they believe that
their representations are true. Such a position would
virtually eliminate liability for negligent
misrepresentation as liability would result only where
there is actual knowledge that the representation
made is not true; the basis of fraudulent
misrepresentation …. The question facing the trial
judge on the negligence issue was not whether
Mr. Johnston was truthful or believed in what he
was representing to the appellant. The question
was whether he exercised such reasonable care
as the circumstances required so as to ensure the
accuracy of his representations .. “
takeway from queen and cognos
MORAL: honesty and oppeness in hiring process is important but DUE DILIGENCE TO ENSURE ACCRUACY OF REPRESNTATION IS ESSENTAIL TO AVOID POTENTIAL LIABILTIY TO NEW EMPLOYEES.
What is employment standards code?
provincial statute describes the minmum standrd that must be provided to employees in albert
who is covered under employment standrads code?
ALL EMPLOYEES AND EMPLOYERS
Who is not covered in employment standrds code?
anyone who works out of province, employees working in federal juridfiction ,employeed covered under other acts, self employed workers/contractors
What topics coverd under employment standards code
hours of work, overtime, holidays, vacation, min wage, rules for minor work, termination, payment of earning, job protection league
MOST IMPORTANT employment standrds code
provisions of standard code CAN NOT be modified by employment contract!!!
so this employments tandrd code is the biggest!! if the employment contract gives you MORE rights, then thats fine but they can not give you less rights
Payment of wages- employment standard act
first: what qualifies as wages?
-> employer has to establish one or more pay periods; cannot be more than one work month
-> partial pay is prohibited
-> cash, cheque, or direct deposit is acceptable
when an emplloyee reports for work and is sent home before working less than t3 hours, they need to be paid for at least 3 hours work
3 hr rule, Section 11(3) [with exceptions]
deduction from wages- employment standard act
- stat deductions (income tax/cpp/ei)
2. recovery of overpayment - recovery of vacation pay
- deductions authorized by collective agreemnt
- court ordered deduction
- deduction persoanlly autorizd by employee
in AB 30 mins of rest for 5 consectuive hours of work! without rest periods there can be accidents/personal matters overlooked
section 18 of employment standards of code
overtime and overtime pay addressed in
employments tandards code and employmnet standard regulation
in general employer needs to pay time and ahalf for overtime >8 hours
exceptions exist for this rule: if youre employed in different industries and occuptiaons you might have a diff rule
-> also managers dont get overtime pay! (supervisory and managerial rule is exempt on the condition that the work they do is substantially different from the regular work that employees do)
vacation and vacation pay s34
employees are entitled to 2 weeks paid vacation after 1 year of employment
2 weeks minimum in first 4 years, then 3 weeks minimum after 5 years
entiteld to at least 4%
stat leaves of absence
makes employees eligible for unpaid leaves!
- mat leave, parental leave
etc. lots of leave allowed; employer has to reinstate the employee when the given leave ends
- RIGHT TO REINSTATEMENT
- RIGHT TO BE FREE FROM REPRISAL!
div 7.6
holidays and holiday pay
7 holdiays are recognized!! and 2 more are specific for Alberta
S25, S26 (employees get holiday pay), S29 (time and a half if you work)
termination of employment div 8
employees are entitled to advance notice; S56 describes lead times of the termination notice, s57 an employee can be given a termination pay instead of giving advanced notice
section 55(2): employees are not entitled to termination notice in some circumstances [contract, cause of action, etc. THESE ARE EXCEPTIONS]
companits and enforcement
employee may make a complaint to an employment standards officer (s84) for reasons like those in section 82 (failure to pay earnings, suspension/termination…)
employees cannot both pursue a claim under employment standards act for stat termination/service pay AND sue for wrongful dismissal!!!!!
employee needs to pick the courts (the court of kings bench can award damages ranging extreemly high values) or employments tandards body (quick adn simple and cheap; but pays out limited amounts)
if breach of stat minimums only: commpain to employ standards or court
if breach or stat mins and contract obligations: the court
employment contracts ARE contracts
- offer acceptance consideration ARE NEEDED!! but in the context of the jobs
- MEETING OF MINDS!!!
oral and written contracts are both binding
common contractual terms
names of parties, date contract begins, position title, job description, comp, termination rights
this wil lbe in offered contract or letter of hire
common contractual terms:
-position title, duties, responsibilitoes
should be an accurate and fulsome outline!!!!
important to include genreal provisions allowing employer to add or modfy duties as reaosnably required (if not there: employee is allowed to refuse the duties and work that fall outside of the express agreement)
what is constructive dismissal
when employer changes employees resposnibilities so significantly that viewed objectively the employer has RADICALLY ALTERNED THE NATURE OF THE EMPLOYEES SERVICE CONTRACT
COMMON CONTRACTUAL TERMS: PERIOD OF EMPLOYMENT
Presumptively for indefinitely! but can be fixed and specificed
id the length of employment term is fixed then
common law principle of reasonable notice dos not apply when the fixed term expires!
BUT mployers should not be able to evade protections of the ESDA and common law by restorting to saying a contract was fixed term
COMMON CONTRACTUAL TERMS: remunation
- cant be less than miss wage
- clear and unambiguous
- identify employees gross annual a=salary and how it will be paid
- if it is variable then should be clear!
- additiaonl benefits specificed
probationary period
not limited with any common law rule!!!, must be laid out in the contract
law does NOT requrie cause for termination, just that it is laid out in contract
TO ESTABLISH WHAT WIL CAUSE DISMISSAL OF PROBAITONARY EMPLOYE, EMPLOYER SHOULD HAVE:
- given reasonable opportunity to demonstrate suitability for job
- decided employee not suitable
- based decision on honest fair and reasonable assesment of employee
common law: Restrictive Covenant
provision preventing employees/former employees from exlorinign employers trade secrest/info and competing with employer
applies during and after employment
3 main categories of restrictive covenant
non disclousre clauses: conificentialy lause!
-> easy for court to uphold
nonsolicitaition clauses: prevent employees from contacting and solicitlitnes clieant and customers
-> hard for court to uphold: cuz they affect employees abiltiy to earn a living; only enforceable if REASONABLY affecting busienss interests of the employer
noncompetition: cant work with a competitor
-> hard for court to uphold: cuz they affect employees abiltiy to earn a living;only enforceable if REASONABLY affecting busienss interests of the employer
if courts see restricve convenant clauses as unjustified?
they are severed from the contract!
what restricive covenant clause is hard to enforce?
non-compete clause: goes against public interest and employees legitimate interests to trade
-> void as a general rule and only enforced in excetional cases!!!
hwo do companies enforce a non compete clause
on a balance of probabilities company must establish taht
- there is a propeitary interst at stake
- temporal and spatail featuers of the clause are not too broad
- terms of the non compete are clear and certain !!!
- restriction is reasonably required for the employers protection
what are termination provisions
the provisions that outline the period of advance notice to which an employee is entitled if their employment is ended on a without cause basis
NOT ABOUT DISMISSAL FOR CAUSE!!!!! THEY ARE DISMISSAL WITHOUT CAUSE
Emlpyment contracts for indefinite period require employer to give raeasonable notice of intention to terminate if dismissal is without cause
UNLESS!!!! EXPRESS CONTRACTUAL LAGNUAGE T OTHE CONTRARY
ESC provides statutatoru minimum notice period that must be given!!! to employees BUT
Common law will identify what constitutes reasonable (usually ecess of stat minimum)
what is the use of terminantion clauses
emlpoyers may use provision to:
A) CONTRACT OUT: of employees common law entitlement to reasonable notice
B) establish that employee is ONLY ENTITLED TO MIN STAT STANDARD
WHAT IS THE PRESUMPTION OF TERM S IN A CONTRACT
that each party has expressly stated everyt material erm that should goevrn their agreement
why would a court rule that additonal terms be implied?
1) in accordance with what the parties presumably intended
2) to giv legal efficacy to contractual relationship
law regarding implied terms in contracts
- what test is used
- no universal set of standard implied terms!!!
to determine if a term was implied or not they use OFFICIOUS BYSTANDER TEST: 19:14 https://d2l.ucalgary.ca/d2l/le/content/619780/viewContent/6544798/View
if a contract is unwritten, what are the implied terms as found by court
NOT what the court finds reasonable, but rather what the parties would have agreed to when forming the had they turned their minds to the type of situation that transpired
4 common law duties of employees
- duty to work: unwillingess or refusal to worok is BREACH (unauthorized absence is breach, lateness if frequent may five cause for dismissal)
- duty of obedience: obey lawful orders tthat are given (if they are within scope of employment)
- duty of competence: generally expected to possess skills necessary for work
TEST- compare to other employes standards - duty of good faith and fidelity: employee has a duty oto serve honestly and faithfully! must act in best interst of employer & not undermine the relationship
common law duties of employrs
- duty to pay for services rendered by employee: reasoanble comp for the services provided to them by employees
- to provide reasonable notice of termination:
under indefinite contract, the relationship can only be terminated with REASONABLE NOTICE!!!!! length based on common law varies!!! - duty to safety: employers are oobligated to create safe working environemnt, compulsory safety standrd apply, (if employer does not provide safety, they are liable for negligence!), avoid mental health injry that is reasonably foreseeable!, empoyer must protect against other imploees
proviision of references
employer does not have to provide reference but if they do they have a responsibltiy to be fair reaosnable and hoenst
IP ownership clauses
choice of law clauses
A) commonly provided that employer is owner of IP made during employment
B) sets out jurisdiction where any dispute under the employement contract will be heard! (which laws will apply?)
-> if an employer in AB hires worker to work in Ontario then the contract eneds to say which provinces law governs it provisions. should have a reaosnable connection between employment cotnract and the jurisdiction1!! cant pick and choose unceessarily
