Session 7 Flashcards
Employment and Labour Law
1
Q
Employment Law
A
The law governing the relationship of an individual employee to an employer.
2
Q
To whom does employment law usually relate?
A
Non-unionized workplaces/workers.
3
Q
Is the employment contract considered special?
A
Yes, it is considered special for many reasons relating to its unique nature.
4
Q
Is there equal bargaining power between the parties in an employment contract?
A
No. The employer has more bargaining power.
5
Q
True or false: The employment contract is one of the most heavily regulated cantractual relationships.
A
True.
6
Q
Traditionally, when do employment contracts conclude?
A
An indefinite or long period of time.
7
Q
What is the issue of implied terms?
A
Can arise from the conduct of parties, industry standards, or legal principles, potentially leading to disputes and legal issues if not managed carefully.
8
Q
What is unique about the outcome of an employment contract?
A
The status of being an employee to the other party.
9
Q
True or false: There is a rise in employment contracts considered special.
A
True.
10
Q
True or false: In a unionized environment terms are not impacted by the collective bargaining agreement.
A
False: in a unionized environment terms are heavily impacted by the colletive bargaining agreement.
11
Q
Do employment agreements include any implied terms?
A
Yes, employment agreements include plenty of implied terms.
12
Q
True or false: There is a lessening demand for gig workers.
A
False: there is a rise in gig workers, even if this is not the most accurate term when it comes to their hours and responsibilities.
13
Q
Why does it matter who is an employee?
A
- Tax treatment
- Vicarious liability of the employer
- Application of employment standards and other regulatory requirements
14
Q
True or false: Employees may claim income on income taxes, but it is not required.
A
False: employees must claim their incomes on income taxes.
15
Q
Who is liable if damage is done by an employee?
A
The employer
16
Q
Who is liable if damage is done by a private contractor?
A
They themselves
17
Q
Employees
A
Employees enter into a contract of employment with employer, offering labour in exchange for wages, benefits and other relational returns.
18
Q
Independent Contractors
A
Independent contractors enter into a commercial contract offering their services in exchange for revenue.
19
Q
Are employees subordinate to their employer?
A
Yes.
20
Q
Are independent contractors subordinate to the firm by which they were hired?
A
No, independent contractors have autonomy.
21
Q
From what do employees need to be protected that independent contractors do not?
A
Employees need to be protected from unreasonable employer action, while independent contractors are running their own businesses and are presumed to watch after their own interests.
22
Q
What are some of the legal tests to determine employment status?
A
- The control test
- The organization or integration test
- The fourfold test
23
Q
True or false: Courts assumes a power imbalance in commercial contracts.
A
False: courts do not assume any power imbalance in a commercial contract.
24
Q
The Control Test
A
Looks at how much control the employer has over the worker.
25
True or false: The control test is the most accurate legal test of employment today.
False: the control test doesn't really work well today.
26
True or false: Control alone is not a decisive criterion but remains an essential factor.
True.
27
The Organization or Integration Test
Looks at to what extent the worker is integrated in the business of the employer and if the work performed is not just peripheral.
28
The Fourfold Test
Looks at 4 main criteria to determine status:
- Control over worker by employer
- Ownership of tools
- Chance of profit for worker
- Risk of loss for worker
29
Which employment status test ought to be used?
Not one test alson, but rather a combination of all the tests/two of the tests.
30
True or false: The fourfold test is relatively new.
False: The fourfold test was articulated in 1947 by Lord Wright in Montréal v. Montréal Locomotive Works.
31
True or false: The label given by the parties to the worker in not decisive to determine employment status.
True.
32
Can someone who is clearly an employee enter into a commercial contract instead of an employment contract?
No, if an organization hires someone who is clearly an employee they cannot have them enter into a commercial contract to save on the taxes & pension etc.
- The lable given to a worker is taken into account but is not a decisive factor.
33
Implied Terms
Terms not expressly agreed upon, and not written down, but automatically applied.
34
Implied terms for employer conduct often includes what?
- Provide a reasonably safe work environment
- Compensate employees for work performed
- Provides reasonable notice of termination
- Duty of good faith performance
- Treat employees with decency, respect and dignity
- Act in good faith and with good faith when terminating employees
- Do not impede employees ability to perform their assigned work
35
Implied terms for employee conduct often includes what?
- Obey lawful orders of the employer
- Be honest
- Provide reasonable notice of resignation
- Advance the employer's economic interest
- Serve faithfully, performing work competently and safely
- Do not compete against the employer
- Do not harass others
36
True or false: Implied terms change over time, and are part of an employment contract unless opted out of within the contract.
True
37
True or false: One of the most contreversial terms is the obligation of the employer to provide reasonable notice for termination.
True
38
ES
Employment Standards
39
Employment Standards Includes?
Minimum wage, paid vacation + holidays, standard hours of work and overtime pay, pay on termination of employment/severence, termination notices, maternal and parental leaves, other employment leaves.
40
Employment Standards
Minimum standards are minimum standards that employers can derogate from to the advantage of the employee.
41
True or false: Compared to other advanced economies, especially in Europe, ES in Canada is extremely strong.
False: Compared to other advanced economies, especially in Europe, ES in Canada is weak.
42
True or false: If an employee has a side hustle in the same or similar field, their employer will usually require a non-compete.
True.
43
True or false: ES are minimum standards set by employers.
False: ES are minimum requirements set by legislation to protect workers in their employment relationship.
44
True or false: Minimum wage is one of the most important employment standards.
True
45
True or false: ES in the United States are far worse than those of Canada.
True
46
HRL
Human Rights Law
47
At what level does HRL exist (provincial or federal)?
HRL exists at both the federal level and in all provinces.
48
What act governs federal HRL?
The Canadian Human Rights Act, 1985
49
What code governs Saskatchewan HRL?
The Saskatchewan Human Rights Code, 2018
50
What is the aim of HRL?
Equal employment opportunities by prohibiting discrimination based on certain grounds.
51
True or false: Prohibited grounds of HRL are inconsistent across jurisdictions.
False: Prohibited grounds are fairly uniform across jurisdictions with some minor variations.
52
List some of the most relevant grounds (in practice) for HRL:
- Disability
- Age
- Sex
- National/Ethnic origin
- Race
53
True or false: HRL is essential in almost all HR disciplines.
True.
54
True or false: HRL does not prohibit dsicrimination based on performance, experience, seniority, and education.
True, this is not deemed discrimination at all.
55
Do the courts hear HRL cases?
No, cases are heard by Human Rights Commissions/Tribunals, not the courts.
56
What are the prohibited grounds under the SK Human Rights Code?
- Religion
- Creed
- Family Status
- Marital Status
- Sex
- Sexual Orientation
- Disability
- Age
- Colour
- Race
- Perceived Race
- Receipt of Public Assistance
- Gender Identity
57
True or false: It is illegal to discriminate based on attractiveness.
False: It is perfectly legal to discriminate based on physical attractiveness, as long as the discrimination does not violate the prohibited grounds.
58
True or false: In all provinces it is not prohibited to discriminate based on political beliefs.
False: In SK it is not prohibited to discriminate based on political beliefs, whereas in BC and MB this is not allowed.
59
True or false: In SK you can offer benefits to someone based on age.
False: In SK you can offer benefits based on years of service (YOS) but not age.
60
True or false: Unlawful discrimination does not have to be intentional.
True
61
Unlawful Discrimination
Puts someone at a disadvantage based on prohibited grounds.
62
True or false: Only employers can engage in unlawful discrimination, unions cannot.
False: Unions and employers can both engage in unlawful discrimination.
63
In which ways can an employment relationship end (methods of contract termination)?
- By expressed term
- By implied term
- By employee resignation
- By frustration
- By summary dismissal
- By constructive dismissal
64
True or false: In the case of an employee death, the employment agreement always ends.
True
65
The Expressed Term Method of Contract Termination
Fixed contract duration and an expressed termination clause.
66
The Implied Term Method of Contract Termination
Employer terminates employee with reasonable notice.
67
The Employee Resignation Method of Contract Termination
Either done in expressed conract clause or resonable notice.
68
The Frustration Method of Contract Termination
Impossible performance due to unforseen event.
69
The Summary Dismissal Method of Contract Termination
Employer terminates without notice for seriour breach of contract.
70
The Constructive Dismmissal Method of Contract Termination
Employee claims employer repudiated the contract.
71
True or false: Employees who resign will likely not sue their employer unless constructive dismissal.
True
72
Termination by Reasonable Notice
An employer must provide an employee with a period of advance notice before terminating their employment without just cause, allowing the employee time to find new employment.
73
What are the Bardal Factors?
- Years of Service (YOS)
- Age
- Employment Type
- Availability of Similar Employment
74
How many Bardal Factors are there?
4
75
True or false: Reasonable notice under common law is far shorter than minimum requirements under employment standards legislation.
False: Typically, common law requires a longer reasonable notice periods than those of employment standards legislation.
76
Summary Dismissal
The termination of an employee's contract without notice or payment in lieu of notice, typically due to gross misconduct.
77
What is summary dismissal sometimes called?
The "capitol punishment of employment law"
78
What happens under summary dismissal?
The employer can terminate the employment agreement without providing notice due to a fundamental breach of the employment contract by the employee.
79
What is required to justify summary dismissal?
Meeting a high standard; if the standards are not met it amounts to wrongful dismissal.
80
True or false: The consequences of summary dismissal can be far reaching for the employee.
True: it can result in a damaged reputation, making it harder to find employment, or inability to qualify for employment insurance.
81
True or false: There is no notice period in summary dismissal.
True: as it is based on severe employee misconduct.
82
Does summary dismissal indicate that the employment relationship has been broken?
Yes, in summary dismissal the conduct of the employee is so seriour that it basically leads to a breakdown of the employment relationship.
83
Constructive Dismissal
Occurs when an employer's actions make it impossible or extremely difficult for an employee to continue working, forcing them to resign, effectively being dismissed without a direct termination.
84
True or false: Constructive dismissal is a legal construct.
True: meaning it's a situation where the employer's actions, though not a direct dismissal, are treated as a termination by the law because they substantially breach the employment contract.
85
Is constructive dismissal a single act on the part of the employer?
No, the employers conduct can be a single act or cumulative acts.
86
List the questions of the threefold test for constructive dimissal based in breach of contract.
1. Was there a breach of an implied or expressed contract term by the employer?
2. Would a reasonable employee conclude the employer's conduct was a substantial breach (objective test)?
3. Did the employee treat the contract as being terminated?
87
True or false: If the employee does nothing and does not treat the contract as terminated, they cannot file for constructive dismissal.
True
88
What are some types of constructive dismissal?
- Change in compensation and benefits
- Relocation
- Change in job
- Unpaid suspension
- Harassment
- Temporary layoffs
89
Labour Law
The laws relating to the rights and responsibilities of workers.
90
True or false: Labour law refers to individual employees.
False: Labour law refers to unions, not individuals.
91
LR
Labour Relations
92
To what does LR refer?
LR refers to the Union-Management relationship.
93
True or false: Once a union is certified the employer has an obligation to negotiate in good faith a collective baraining agreement (CBA) with the union.
True
94
CBA
Collective Bargaining Agreement
95
Who does the union reprensent?
Employees in dealings with the employer.
96
What percentage of workers in Canada are covered by CBAs?
30%
97
What are the two main schools of thought when it comes to the role of unions?
1. Business unionism
2. Social unionism
98
Business Unionism
Focuses on protecting worker's rights, improving working conditions and providing service to members.
99
True or false: Business unionism is a wider views, focusing on the big picture.
False: business unionism is a narrower view, focused on only workers rights.
100
Social Unionism
Focus on influencing economic and social policies of governments, this goes much beyond "business unionism".
101
True or false: Unions impact managements flexibility.
True
102
True or false: Unions need to adapt in light of declining membership.
True: there is currently declining membership, competition for business, and globalization; which all effect unions and are cause for need to adapt.
103
True or false: LR law is regulated at only the federal level.
False: LR law is regulated by each province and at the federal level.
104
True or false: Employers cannot retaliate against employees for joining a union.
True
105
True or false: Strikes are typically illegal if there is a CBA in place.
True
106
What is the minimum life of a CBA?
1 year.
107
Who are the key players in LR?
- Labour Relation Boards
- Labour Arbitrators
- Courts
- Conciliators
108
What is the role of labour relations boards in LR?
To interpret and enforce the law.
109
What is the role of labour arbitrators in LR?
Interpret and enforce CBAs.
110
What is the role of courts in LR?
Judicial review of decisions of arbitrators and LRBs.
111
LRB
Labour Relation Board
112
What is the role of conciliators in LR?
Assist resolving impresse at CBA (re)negotiations.
113
How often are cases referred to conciliators resolved?
More than 90% of cases refferred to conciliators in Canada are resolved.
114
Can unions coerce employees who do not wish to join a union?
No, unions cannot coerce employees who do not wish to join a union.
115
True or false: Courts play a large role in LR.
False: Courts play a very limited role in LR.
116
What is the goegraphic set-up of unions?
Unions can be local, national, and international. There are also provincial and national union federations.
117
What is the most common unionization process?
Regular certification.
118
CLC
Canadian Labour Congress
119
True or false: CLC is the largest federal confederation of unions.
True
120
ITUC
International Trade Union Confederation
121
What is the ITUC referred to as?
The "global voice" of workers.
122
How do CLC, ITUC, national and international unions interact with local unions.
To provide support, training and expertise to local unions.
123
What does negotiating a CBA require a lot of?
Preparation + time
124
What must be done to a CBA once it is concluded?
It needs to be operationalised.
125
Negotiating CBAs is:
- Time consuming and resource intensive.
- Requires a lot of very careful preparation and research.
- Final CBA needs approval by employer and usually employees need to ratify it too.
126
CBA Negotiation Preparation Phase
The preparation stage is highly important to acheive goals.
127
CBA Negotiation Negotiating Phase
Aims to reach an agreement, using compromises and bargaining.
128
CBA Negotiation Settlement Phase
Formal vote by employees is required for settlement.
129
What happens if there is no settlement in CBA negotiations?
A conciliation process.
130
What happens in conciliation fails in CBA negotiations?
Industrial conflict, such as a strike.
131
What are the 2 types of content that can be included in CBAs?
- Mandatory
- Default
132
Mandatory CBA Content
- Required by law to be included
- If not included it becomes implied by statute
133
Default CBA Content
- Defined in legislation
- Apply unless parties agree on other provisions
134
What are typical clauses in CBAs?
- Working hours and overtime
- Wages, pay and benefits
- Leaves
- Seniority clause
- "Just Cause" clause
- Union dues collection/union membership requirements
- Grievence process
135
True or false: The grievance process is not a very formalistic process.
False: The grievance process is a multi-step, very formalistic process outlined in the CBA.
136
What is the most common form of resolving disputes arising out of a CBA?
The grievance process
137
True or false: A grievance can be settled or withdrawn at any time.
True
138
What happens in the grievance process if there is no settlement or withdrawl?
It advances to arbitration.
139
True or false: A grievance settled, withdrawn or decided by arbitration can be revived at any time by either party.
False: A grievance settled, withdrwan or decided by arbitration cannot be revived.
140
What happens if individual employees do not agree with the decision of a grievance?
They can file a complaint with LBR.
141
What are the types of grievances?
- Individual
- Group
- Policy
- Employer
142
Individual Grievances
Employer alleged to violate rights of individual employee.
143
What is the most common form of grievance?
Individual grievances
144
Group Grievances
Employer alleged to violate rights of group of employees.
145
Policy Grievances
Employers alleged wrongdoing is of general interest for the entire bargaining unit.
146
Employer Grievances
Employer claims union or individual employee has violated the CBA.
147
Labour Arbitration
Meant to provide a speedy, less formal process for stting labour disputes outside the court system.
148
True or false: Labour arbitration is relativeley new.
False: Labour arbitration has a comprehensive body of case law developed over decades.
149
True or false: Decisions of arbitrators are final and binding but subject to judicial review.
True.
150
What is judicial review?
Judicial review focuses mainly on whether arbitrators acted outside jurisdictions, it is not a formal appeal and courts tend to uphold decisions of arbitrators which are reasonable.
151
Where is the arbitrator amount outlines?
In the CBA
152
True or false: Courts often overturn the decisions of arbitrators.
False: Courts rarely turn over decisions of arbitrators.
153
What are typical illustrative remedies arbitrators can order?
- Damages for loss wages and benefits
- Aggrevated damages for mental suffering
- Damages for comission of tort
- Removal of discipline for employee record
- Apology
- Reinstatement
- Awarding a job denied
154
What is the the practical importance of the labour arbitration "Just Cause" clause?
There is significant practical importance, countless labour arbitrations focus on employee discipline and dismissal.
155
What is an example of something just cause clause can help determine?
Was the employer's choice to dismiss an excessive response?
156
What are the typical grounds for "just cause" discipline or dismissal?
- Dishonesty
- Poor performance
- Insubordination
- Intoxication
- Harassment
- Violence
- Attendance Issues
- Off-duty conduct
157
What are the steps of the progressive discipline process?
1. Verbal warning
2. Written warning
3. Suspension
4. Termination
158
To what are off-duty conduct issues often related?
Social Media
159
DFR
Duty of Fair Representation
160
What does DFR require unions to avoid?
- Discrimination
- Arbitrariness
- Bad faith
161
True or false: DFR is the unions obligation toward employees as a trade off being granted exclusive bargaining rights.
True
162
True or false: Few DFR complaints by employees to LRBs are successful.
True
163
Types of Industrial Conflicts:
- Strikes
- Lockouts
- Alternatives
164
What are examples of industrial conflicts which are alternatives to strikes and lockouts?
- Voluntary interest arbitration
- Mandatory interest arbitration
- Back-to-work legislation
- First contract arbitration
165
Legal strikes in SK
- Workers must be unionized
- No CBA is in place
- CBA negotiations were tried and failed
- Unions conducted successful strike vote
- Mandatory conciliation/mediation failed
- Cooling off period passed
- Notice by union to employer of 48 hours
166
True or false: SK requires a motive for strikes.
False: many provinces require a motive for a strike, not SK though.
167
True or false: Strikes can be legal or illegal.
True
168
What is the cooling off period?
Usually 14 days after conciliation failed.
169
Lockouts
- Timing for legal lockouts is the same as for lawful strike.
- Requirements mirror those of lawful strike.
- Definition of lockout requires a motive element.
170
What's a Practical Issue in Lockouts
When to use lockouts as a tactical bargaining strategy.
171
True or false: Strikes are less common than lockouts.
False: Lockouts are less common than strikes, can result in serious economic impacts for employers and employees.
172
Is voluntary interest rare?
Yes very rare.
