week 7 class notes - employment & labor law Flashcards
fourfold test to determine if a contract of employment
- control
- ownership of tools
- chance of profit
- risk of loss
What makes employment a “special” kind of contract?
No mutual consent or equal bargaining power, retains master/servant features.
Master was liable for servant’s:
Breach of contract and torts committed during duties.
Organization Test
Employee if the employer controls work and how it is done.
If activities are integral to business = employee.
Contract for Services vs. Contract of Service
Contract for services = independent contractor.
Contract of service = employment contract.
Agency vs. Employer/Employee Relationship
Use the organizational test—if control is found, it’s employment.
Do employment contracts have to be in writing?
No, they do not need to be written.
What are restrictive covenants?
Non-solicitation clauses (prevent taking clients)
Non-competition clauses (prevent working for competitors)
Can a contract restrict employees from using learned skills?
No, only confidential information can be restricted.
Employment legislation aims to prevent:
Employer abuses and excesses.
Main areas covered by employment laws:
Worker safety (Occupational Health and Safety Act)
Terms of contract (Employment Standards Act)
Pay Equity Act
Requires men and women to be paid equally for the same work.
Human Rights Legislation
Prohibits discrimination (race, creed, sex, age, etc.).
Employers must accommodate disabilities up to undue hardship.
Employees must:
Obey reasonable orders.
Use property and information carefully.
Keep confidential info secret.
Be loyal (duty of fidelity).
Work during paid hours.
When do senior employees owe a fiduciary duty?
When they have significant influence in the company.
Can an employer sue an employee for dishonesty?
Yes, for secret profits or losses caused by dishonesty.
What is the minimum notice period under the ESA?
One week per year of service, up to a max of 8 weeks.
What is “reasonable notice” at common law?
Determined by factors like position, length of service, age, and industry customs.
What is the max notice period awarded?
Usually 18-24 months for long-term or senior employees.
Wrongful dismissal occurs when:
Employee is fired without proper notice or compensation.
Constructive dismissal:
Employer makes major changes to a job without agreement, forcing resignation.
Wrongful hiring:
Employer misrepresents job details to induce an employee to leave another job.
Who is responsible for employee misconduct at work?
The employer (if the act was performed during job duties).
Can an employee sue their employer for injury at work?
Generally no, because of Worker’s Compensation laws.
Why was Worker’s Compensation introduced?
In exchange for guaranteed compensation, workers gave up the right to sue employers.
How does Worker’s Compensation work?
No-fault insurance system—compensation is given regardless of fault.
Who pays for Worker’s Compensation?
Employers pay premiums.
Who governs labour law in Canada?
Both federal and provincial governments.
What happens when an employee joins a union?
They lose common law remedies and must follow statutory dispute processes.
What is a “closed shop” workplace?
Only union members can be hired.
Union Certification Process:
Employees form or join a union.
Apply for certification with the labour board.
If the majority supports, the union becomes the exclusive bargaining agent.
When is a strike lawful?
Only when a collective agreement has expired and all negotiation efforts have failed.
What is a “wildcat strike”?
An illegal strike during an active collective agreement.
What is a lockout?
Employer refuses to let employees work as a bargaining tactic.
What is “secondary picketing”?
Picketing suppliers/customers of the employer (now allowed under the Charter).
Who must use compulsory arbitration?
Essential services (e.g., healthcare, police, firefighters).
How does arbitration work?
A board (with representatives from both sides + an independent chairperson) makes a binding decision.
What is a grievance?
A complaint that an employer or employee has violated a collective agreement.
Steps in the grievance process:
- Meetings between union and employer.
- If unresolved, goes to arbitration.
Judicial Review of arbitration decisions:
Can be challenged if there’s an error of law or unfair process.
What is “natural justice”?
Fairness in legal proceedings, including:
Knowing the case against you.
Having a chance to respond.
An impartial decision-maker.
