Module #6: Employment Law

Question 1

Employment Law

Answer 1

law of master and servant

Question 2

Three factors that have changed the ways employees are treated now

Answer 2

1. the development of the middle class
2. women in politics
3. introduction of labor unions

Question 3

Distinguishing between employment and independant contract

Answer 3

1. vicarious liability
2. employment legislation
3. income tax deductions

Question 4

Independant Contractor Example

Answer 4

plumber who fixes sink

Question 5

Control Test

Answer 5

who controls the work that is done, who decides where/when/how the work is done

Question 6

organization test

Answer 6

how integral/important is the person to the organization, the higher this is, the more likely it is a employment relationship

Question 7

All other factors

Answer 7

risk of loss, written agreement, the person working has their own tools, written agreement is one of many factors

Question 8

Obligations of Employers

Answer 8

1. pay salary or wages
2. honor employment contract
3. provide safe working conditions

Question 9

Obligations of employees

Answer 9

work competently
be on time
be loyal
fiduciary duty (maybe) - legal interest to act solely in the best interest of the other party

Question 10

Termination of employment with cause

Answer 10

an employee is not entitled to notice of termination or severance pay

Question 11

Termination with cause reasoning

Answer 11

employee can be dismissed on the spot immediately / breach of contract by the employee that is serious enough to void an employee contract (essentially what it is)

Question 12

Examples of sufficient breach of contract

Answer 12

serious misconduct, dishonesty, insubordination, chronic absenteeism, sexual harassment, conflict of interest

Question 13

What degree should misconduct rise to to become cause

Answer 13

violates an essential condition of the employment contract
breaches the trust/faith that is inherent in the working relationship
fundamentally inconsistent with the employee’s obligations to the employer

Question 14

Significant Seniority

Answer 14

pay, severance (trying to terminate these types of people = lawsuit)

Question 15

Progressive Discipline

Answer 15

aka verbal reprimand, written reprimand, suspensions and then you can terminate for cause

Question 16

Termination without cause

Answer 16

must be in good faith and it must be for business reasons

Question 17

Two sets of obligations on the employer (without cause)

Answer 17

must provide ESA notice and severance
must provide reasonable notice → usually longer than notice required under the employment standard act

Question 18

ESA Notice

Answer 18

-1 week/year of employment, max of 8 weeks
-notice can equal notice of payment, termination or both

Question 19

ESA Severance

Answer 19

1 week/per year, max 26 (if annual payroll is greater than/equal to 2.5 million and 5+ years employment) -both conditions have to be met

Question 20

Severance Payout

Answer 20

lump sum

Question 21

What if employee violates ESA?

Answer 21

employee can go to ministry of labor and obtain an order requiring employee to pay

Question 22

What is reasonable notice based on?

Answer 22

age
seniority
skills, training, education
ability to find alternative employment

Question 23

Wrongful Dismissal

Answer 23

failure to provide reasonable notice
termination on bad faith
discrimination

Question 24

Bardal Damages

Answer 24

equal to notice of termination that you should’ve received but didn’t
the weeks/money that they didn’t receive

Question 25

Punitive Damages

Answer 25

emotional distress / mental anguish (need to show medical proof/actual damage)

Question 26

Wallace Damages

Answer 26

terminated by humiliation and disrespect (not a thing anymore)

Question 27

Lower level courts and wallace damages

Answer 27

lower level courts follow wallace damages even though the supreme court has enforced not to

Question 28

Why do lower level courts still follow wallace?

Answer 28

the lower courts hear firsthand from witnesses the mental anguish they go through

Question 29

Constructive dismissal

Answer 29

when the employer changed the nature of the job without the employee’s consent, causing the employee to resign

Question 30

Why do employers use constructive dismissal?

Answer 30

employees do this to avoid money associated with firing an employee

Question 31

Damages for constructive dismissal

Answer 31

damages applied would be the same as terminating an employee without cause

Question 32

Costs of dismissal - what to think of

Answer 32

need to think about all costs of the dismissal (non-monetary costs - value of closure, sending a message to other employees) think about the big picture avoid litigation (ex employees are very bitter and vindictive)

Question 33

Employment Standards Act

Answer 33

-minimum wage hours of work, overtime, breaks, vacation pregnancy and paternal leaves equal pay termination and layoffs layoffs are not permitted if not written out

Question 34

Human Rights Legislation

Answer 34

prohibits discrimination requires accommodation prohibits sexual harassment may result in fines or re-instatement have to proactive when it comes to discrimination and harassment

Question 35

Other employment legislation

Answer 35

health and safety pay equity employment insurance worker’s compensation BIA, WEPA, etc

Question 36

Collective Bargaining

Answer 36

individually an employee has no bargaining power one voice=greater bargaining power

Question 37

What are unions protected by?

Answer 37

unions are protected by law in Ontario and Federally

Question 38

Organization and certification of union

Answer 38

more than 50% have joined the employees then the union is certified

Question 39

Union - Agency Relationship

Answer 39

union = agent employees = principal

Question 40

What is bargaining based on?

Answer 40

agency, must bargain in good faith

Question 41

Mediator regarding union

Answer 41

either side can get a mediator before a strike or lockout

Question 42

Collective bargaining agreement

Answer 42

both sides agree (must last at least one year)

Question 43

Collective bargaining agreement terms

Answer 43

sets out all terms like termination and vacation - becomes NEW employer contract

Question 44

How are unions ran?

Answer 44

democratically run/equally