Week 10 Flashcards
Who is a principal?
A person who has permitted another to act on their behalf
Law of agency
The law governing the relationship where one party, the agent, acts on behalf of another, the principal.
Actual Authority
The power of an agent that derives from either express or implied agreement
Express Authority
written or oral authority granted by a principal to an agent
Agency by Estoppel
An agency relationship created when the principal acts such as that third parties reasonably conclude that an agency relationship exists.
(A person leads another to believe that a third person is authorized to act on their behalf. Even though no formal agreement exists, the person who created the impression of agency is bound by actions of the third person as if they were their agent)
Fiduciary duties of the agent
A person who has a duty of good faith toward another because of their relationship
Termination of agency agreements
- The agency relationship ceases by operation of the law; this most commonly occurs due to death, dissolution, insanity, or bankruptcy of one of the parties
- the parties agree to bring their relationship to an end
- One party gives notice of termination to the other
the principal should give notice to third parties
Adverse effects discrimination
Discrimination as a result of a rule that appears neutral but in its effects is discriminatory
(Requiring workers to wear hard hats and work every second Saturday may be to discriminate against those who wear a turban or don’t work on Saturdays. )
Just cause
Employee conduct that amounts to a fundamental breach of the employment contract; the employer can dismiss without notice.
dismissal without notice
For employment with fixed periods of time, contracts end when the term expires and no notice is needed but termination prior to expiry is a breach of contract.
Period of notice can use standards legislation, contracts terms and common law.
Reasonable notice periods
character of employment, length of service, age, availability of similar employment
Character of employment
Refers to the status of the position; high-level management is entitled to more than a junior employee
- the reasoning is it is harder for high-level employees to find relevant work
A wrongful dismissal suit arises:
- when an employee claims not just cause
- when an employee is given notice, but claims the notice is inadequate
- from a constructive dismissal.
What type of worker relationship is when the worker provides their own equipment?
Independent contractor
What type of worker relationship is investing capital and managing staff by the worker?
Independent contractor
What type of worker relationship is when a worker is not in a position to realize a business profit or loss?
Employee relationship
What are the rights or benefits that employees have?
- Paid holidays and over time
- deduction of income taxes and employment insurance premiums
- payment of Canada pension plans premiums
- entitled to reasonable notice on termination
-Employee can initiate an action for wrongful dismissal - Employer is responsible for the torts and employee committed in course of employment
Can an employer be vicariously liable for the acts of an independent contractor?
Yes, if they are an agent.
Under traditional agency principals
What is an agency?
A relationship that exists when one party (the agent) represents another party (the principal) in the formation of legal relationships
What is an agent?
A person who is authorized to act on behalf of another
Nature of agency as for legal relationships
Legal relationships are binding
Two key relationships at play in an agency situation
Agent principal relationship
Outsider principal relationship
What is an outsider relationship?
The relationship between the principal and the party with whom the agent does the business. (Outsider or third party)
What does the law of agency address?
It addresses complications resulting from the relationship of the agent and principal.
What is law of agency derived from?
It is derived largely from tort and contract law
Creation of Agency Relationship
A relationship usually arises by contract between the parties.
- a contract involves a principal authorizing an agent to act on their behalf and an agent agreeing to do so in return for remuneration.
- a contract is usually created only for that single purpose
- it can also arise as part of a larger contract. (When one is acting as an agent on behalf of an employer)
- sometimes a relationship arises by conduct (no agreed to, but outsiders are led to believe the relationship is one of agency)
-Agency agreement can be express, implied, oral, in writing, or in writing under seal.
Authority of Agent
Determines whether there is a contract between the principal and the outsider.
The principal is bound by contract.
Implied Authority
An agents authority that is present by implication only
Apparent Authority
The power that an agent appears to have to an outsider because of conduct or statements of the principal
Agency created by estoppel when
The principal indicates another is his agent when no such agency relationship exists
Agency by Ratification
An agency relationship created when one party adopts a contract entered into on their behalf by another who at the time acted without authority
An agent owes fiduciary duties to
The principal, not personally profit from it (profit rule), and not be in a conflict of interest (conflict rule)
Employment Law
The vast body of law that regulates employment
Who can pass employment legislation?
Federal and provincial governments
Federal employment legislation
Laws that affect employees of the federal government, federally regulated industries
Provincial employment legislation
Laws that affect all employees that don’t work with a federally regulated industry, including provincial.
Employment relationship
a contractual relationship whereby an employer provides remuneration to an employee in exchange for work or services
Independent Contractor
An agent or person who is in a working relationship that does not meet the criteria of employment (doctors, lawyers)
The hiring process common steps
- Develop job descriptions
- Advertise the positions
- Have candidates complete an application form or submit a resume
- Short-list candidates
- Check backgrounds or references
- Interview selected applications
Hiring process affected by?
Human rights legislation
Some cases also by employment equity legislation
What Does Human Rights Commission do?
Administers human rights legislation, and investigated complaints
Human rights legislation prohibits discrimination in hiring in certain grounds:
- Marital status
- Race
- Colour
- Physical or mental disabilities
- Religion or creed
- Sex and sexual orientation
- Age
Discrimination
The act of treating someone differently on the basis of a prohibited ground
Systemic Discrimination
Discrimination that results from the combined effects of many rules, practices, and policies
(If a workforce is mostly male, there may be systemic discrimination within it)
defenses to discrimination
Bona fide occupational requirement (BFOR)
Bona Fide Occupational Qualification (BFOQ)
A defence that excuses discrimination in a prohibited ground when it is done in good faith and for a legitimate business reason.
- requiring a valid drivers license is a BFOR for a job as a driver
- requiring a hard hat may be a BFOR for construction
Offer of employment
The offer of employment must be reasonably certain to constitute an “offer” in law.
It doesn’t need to be a particular form or in writing , but just include details of the job.
Once made, the offer is capable of acceptance until it is terminated
employment contract
A contract between an employer and an employee in which the terms and conditions of employment are stated.
For an employment contract the general principals of a contract apply. True or false?
True
Fixed or definite term contract
A contract for a specified period of time, which automatically ends on the expiry date.
indefinite term contract
A contract for no fixed period, which can end on giving reasonable notice
Just Cause Termination
Is an implied term, referring to an employer terminating an employment relationship without notice.
- it can be subject to collective agreements, terms in employment contracts, and legislation
Just cause examples
- Serious misconduct
- Habitual negligent of duty
- Incompetence
- Conduct incompatible with duties or prejudicial to the employers business
- Willful disobedience in matter of substance
An employee terminating an employment relationship with reasonable notice
-This is also an implied term, subject to collective agreements and contracts
-The employer is not required to have cause or reason
-It does not usually apply to federally regulated industries
Serious misconduct
Intentional, harmful conduct of the employee that permits the employer to dismiss without notice.
- it is not one minor mistake but could be many major mistakes over time
- employee must be warned that actions are labelled misconduct and given opportunity to improve.
Habitual neglect of duty
Persistent failure to perform employment duties
(Chronic absenteeism or lateness)
- the behaviour must be without employers permission
The employee needs to be warned.
Incompetence
Lack of ability, knowledge, or qualification to perform employment obligations
- more than the employer being dissatisfied
- must be given notice and opportunity to improve
- must have performance standards to measure performance
Can an employee fight back for incompetence?
Yes, the employee can fight back with inadequate training, inexperience or condonation.
willful disobedience
Deliberate failure to carry out lawful and reasonable orders.
- the act would have to be serious and employers must be able to show that instructions given to employee was clear.
- less serious offences may justify when they are cumulative or combined with other types.
- only warranted if misconduct strikes at the heart of the employment relationship.
without just cause termination
In the absence of just cause, the employer is required to give notice or pay in lieu of notice
- appropriate notice is determined by the employment contract, standards legislation, or reasonable notice.
Reasonable Notice
A period of time for an employee to find alternative employment prior to dismissal
(Can not be reduced by the employer for specific situations)
Length of service
Longer-term employees lack the breadth of experience over those who had several jobs (not calculated by one-month notice for every year of service)
Age with period of notice
Older employees are entitled to more notice because of difficulty finding employee but past a certain age
Availability of similar employment
The less opportunities are available, the more notice an employee is entitled to
Other factors other than the primary that lengthen notice:
High degree of specialization
Inducement to join an organization
constructive dismissal
Unilateral employer conduct that amounts to a fundamental or substantial change to an employee’s contract.
- the employer can not make a fundamental change without the employees consent
- if the employee does not consent they can due for constructive dismissal.
- not caused by minor changes
- geographical transfers can be included in employment contract.
Duty to Mitigate
An employee must take reasonable steps to find comparable or similar employment.
- does not require an employee to take a look for a lower- level job
- failure to mitigate will result in a deduction from the damage award.
Fundamental term
A term that is considered to be essential to the contract.
Types of workers/ providers of services
Agent
Independent contractor
Dependent contractors
Employee
What is a dependent contractor?
Similar to an independent contractor but had a relationship of economic dependency with the employer because they work exclusively or nearly exclusively with them for a long period of time
What type of worker relationship is the employer controlling what work is to be done and the manner in which it is done?
Employee relationship
What type of worker relationship is when the worker hires their own helpers to perform services?
Independent contractor
What type of worker relationship is it when there is no fixed or operating expenses taken by the worker?
Employee relationship
What is firing notice needed for independent contractors, dependent contractors and employees?
Employees or dependent contractors are entitled to notice or pay in lieu of notice, where independent contractors are not.
What is vicarious liability?
Employers can be held responsible for the negligent acts of their employees
