Module 9- Employement Law Flashcards
Is the distinction between an employee and an independent contractor important?
YES! They both do ‘work’ for the employer, but the independent contractor usually owns their own company and works for themselves.
How can it be determined if a person is an employee or an independent consultant?
Organization test
Control Test
Organization Test
The greater the degree of interrogation into the employers organization, the more likely that person would be considered an employee
Control Test
The greater the degree of control exercised by the employer, the more likely that person will be considered to be an employee
Liabilties of the employer for EMPLOYEES
The employer responsible for:
- Vicarious Liability for their employees.
- Getting their employees income tax and all that shit to Revenue Canada
- Providing employees with vacation and holiday pay, minimum wage and overtime
- Rights of notice before dismissal
Liability of the employer for INDEPENDENT CONTRACTORS
Employers are NOT responsible for:
No vicarious liability for them
-No requirements for their taxes and shit
-Owe them no enitlement if not stated in contract
- Right to terminate based on their contract only
Why is distinction between employees and independent consultants so important
paychecks, entitlement (vac pay etc.), dismissal rights, tort liability of the employer
What does the Employment Contract cover?
-the position and description of the job
-wages
-benefits
-probation period
EMPLOYEES/ EMPLOYERS CANNOT OPT OUT OF THE MINIMUM STANDARDS PROVIDED.
What are justifiable reasons for firing?
A fundamental breach of the employment contract
OR
A legally justifiable reason for ending the employment
What is a minor infraction?
I don’t know
Can an employee be fired over a minor infraction?
Employees cannot be fired over these, but a build up of these may justify being fired
Condonation
Employer behavior that indicates to the employee that misconduct is being overlooked.
What is required to terminate if there is no just cause?
The employer is required to give:
Reasonable Notice: if its 4 weeks, they would give the notice on November 30 and terminate them on December 30
Pay in LIEU: If you don’t want them to work for the reasonable time, you would give them 4 weeks pay.
Other factors considered in court
age, length of service, availability of employment
What is called when an employer makes a change to an employee contract without consent
Constructive Dismissal
Most common cases are demotions or pay cuts
For example, telling your assistant manager they have to go back to serving without consulting them. You would have to terminate them as an assistant manager
