Unit 1 Definitions

Question 1

Collective agreement

Answer 1

contract between employer and trade union laying conditions of employment

Question 2

“At will” employment contract

Answer 2

Employment contract in which either party may terminate in which either party may terminate the contract at any time, for any or no reason, with no notice to either party. This is regime used in the United States. Canadian employment standards requires notice.

Question 3

Aggravated damages

Answer 3

Supreme Court has recognized that termination can lead to psychological damage for termination. Aggravated damages refers to recovering damages for hurt feelings, pain and suffering. Recently courts have rules that aggravated damages can be awarded if the employer engaged in bad faith.

Honda Canada Inc. v. Keays(2008)

Question 4

Ancillary contract term

Answer 4

Written materials that are separate from the employment contract. Sometimes the language can fit in the employment contract. The courts have to decide if those documents are a separate legal document or are part of the existing employment contract.

Question 5

Balance of probabilities

Answer 5

An evidentiary standard of proof requiring evidence that is more likely than not that an incident occurred. It means essentially that the evidence confirms it is more likely than not that the employee committed the wrongful act. It’s one of the tests to determine if summary dismissal is valid

Question 6

Bardal factors

Answer 6

Criteria used by Canadian courts in assessing length of time required by the implied obligation to provide “reasonable notice” of termination of an employment contract.
Bardal v. Globe and Mail Ltd.(1960)

Question 7

Compensatory damages

Answer 7

The financial losses that flow naturally from the fact that the employee was not permitted to work the notice period are known as compensatory damages. If the employees contract is terminated without
Just cause and without giving reasonable notice of termination, the employees is considered to be reasonably dismissed and is entitled compensatory damages.

Question 8

Constructive dismissal

Answer 8

Fundamental change to an employment contract by an employer that an employee may treat as an effective termination of the contract. There are two types:

1. Constructive dismissal based on employer's behavior that makes 'intolerable' e.g harassment
2. Constructive dismissal based on substantial breach of an essential term of the contract e.g change to employee's compensation and benefits Farber v. Royal Trust Co.(1997)

Question 9

Duty to mitigate

Answer 9

Legal obligation on the victim of a breach of contract by the other party to make reasonable efforts to limit the amount of damages suffered as a consequence of the breach.

Question 10

Duty to warn

Answer 10

Requirement in both the common law and collective bargaining law regimes for employers to warn employees that their behaviour or performance is unacceptable and to give them a reasonable opportunity to correct their performance.

Question 11

Expressed contract term

Answer 11

Terms of a contract that the parties have explicitly agreed to, either orally or in writing.

Question 12

Frustration of contract

Answer 12

Termination of a contract caused by an unforeseen event that renders performance of the contract impossible.

Question 13

Implied contract term

Answer 13

Default terms invented by common law judges and read into employment contract when the written the terms do not address the specific issue addressed in the implied term.

Lloyd v. Imperial Parking Ltd.(1996)

Question 14

Insubordination

Answer 14

Breach by an employee of the implied or expressed term of an employment contract requiring the employee to obey an employer’s orders and instructions.

Question 15

Principle of proportionality

Answer 15

The courts apply a principle of proportionately to determine cause for summary dismissal. Is dismissal without notice appropriate?

Step 1: Did the employer establish on a ‘balance of probabilities’ that the employee breached the contract?
Step 2: Is the employee’s conduct sufficiently serious that it undermines the foundation of the employment contract?

McKinley v. BC Tel(2001)

Question 16

Progressive discipline

Answer 16

Application in stages by employers of progressively more serious discipline to correct performance problems.

Question 17

Punitive damages

Answer 17

Damages ordered against a party who engages in outrageous or egregious behaviour deserving of special denunciation and retribution. This is rare in Canada.

Question 18

Repudiation of contract

Answer 18

Breach of contract that demonstrates an intention by the party to treat the contract as at an end and to no longer be bound by the contract. When an employer dismisses an employee without giving proper notice (and absent cause for summary dismissal), this action repudiates the contract and the contract comes to an end.

Question 19

Summary dismissal

Answer 19

Termination of an employment contract by an employer without notice to the employee in response to a serious breach of contract by the employee. It’s considered the capital punishment of employment law.
Because of the heavy consequences of summary dismissal, courts have developed a harsh threshold to meet summary dismissal. Some common grounds for summary dismissal include: dishonestly and conflict of interest, gross incompetence and safety violations, breach of faithful service to the employer

Question 20

Unconscionability doctrine

Answer 20

Contract or contract term that a court refused to enforce because it is a result of inequality of bargaining power that was exploited that was exploited by the more powerful party to obtain a contract that is substantially unfair considering community standards of commercial morality.

Question 21

Wrongful dismissal

Answer 21

Type of lawsuit by an employee against a former employer alleging that the employer terminated their contract without complying with the implied term in the contract requiring ‘reasonable notice’.