Week 8: Chapter 19 Flashcards
Master and servant relationship
Masters historically liable for the torts of their servants when they were committed in service of the master
No mutual consent or equal bargaining power
The fourfold test to determine if it’s an employment relationship or independent contractor
- Control - who has control over the work?
- Ownership of Tools
- Chance of Profit - an employee doesn’t share in the profit
- Risk of Loss
This is no longer used
The organization test
A test used to establish whether a worker is an employee or independent contractor; examines whether the worker is providing services integral to the organization’s business
They’re an employee if the “employer” controls what tasks they do and how they do them
Employment (independent contractor vs employee)
A contract FOR services = An independent contract
A contract OF services = an employment contract
Form + contents of the employment contract
Doesn’t need to be in writing to be binding
May contain provisions restricting use of confidential information, to protect business secrets
May also contain restrictive covenants, such as non-solicitation clauses and non-competition clauses
Can restrict the use of confidential information, cannot prevent employee from exercising learned skills
Duty of the Employer: Safety
Occupational Health and Safety Act
- Working conditions, regular inspections, protective equipment, ability of employee to refuse to do work, - Sanctions against employer and often supervisors personally – rare
Duty of the Employer: Follow employment standards legislation (provincial)
Governs minimum wage, maximum hours, holiday and vacation pay, termination notice, severance pay
Varies province to province
Human Rights legislation surrounding employment
Prohibits discrimination by, race, creed, colour, place of origin, nationality, sex, age
Includes handicap if not related to job performance
Employer is obligated to accommodate people until the point of undue hardship
Duties of the employer: Compensation at common law
Employer must pay the employee in return for their services, and indemnify them for any expenses incurred in course of employment.
Employer must supply tools necessary to do the work where custom so provides
Employer must provide enough information to allow worker to calculate remuneration where necessary, ie., where other than hourly rate or salary, ie., bonus structure
Duties of the employee
Perform the specific duties set out in the employment contract
Obey all reasonable orders from employer that fall within scope of employment
Must keep confidential info confidential
Must spend hours of employment doing employment work
Where employment based on special skill, employee required to exercise skill, liability to employer where breach
Senior executives special duty to employer
Senior level employees can have a fiduciary position to the employer on top of their normal obligations
Termination of employment
- An employment contract may provide for its own discharge (as when the contract is for a fixed term, say one year, and that term expires), or the parties can mutually agree to bring it to an end
- Most contracts of employment are for an indefinite period of time with no reference to notice requirements
In general, such contracts of employment can be terminated (1) by either party giving reasonable notice, (2) by the employer giving the compensation that should have been earned in that notice period (pay in lieu of notice), or (3) immediately with just cause
Pay in Lieu of Notice
An amount paid to a dismissed employee in place of notice to terminate since they likely wouldn’t want to work the notice period anyways knowing they’ve been fired
Reasonable Notice for Termination
Both parties are obliged to provide reasonable notice of termination
Reasonableness is a question of fact, dependant on ○ Nature of contract, Method of payment, Type of position, Length of service, Custom of business, Age of employee
Just Cause
A valid reason to dismiss an employee without notice
Wrongful Dismissal
Termination of employment without reasonable cause and without notice or pay in lieu of notice
Criteria for an Action For Wrongful Dismissal
The action is to receive payment in lieu of notice
The reasonable notice period would be determined as a question of fact
In order to qualify for the action the plaintiff had to actively mitigate the damage to them (i.e. look for a new job)
“Employees at will” and its exceptions
Employees at will means an employer can terminate any employee
An employee cannot be legally fired if it’s discrimination as defined by Human Rights Code
- if this happens employee can file action for wrongful dismissal
Constructive Dismissal
Unilaterally demoting or changing the duties of an employee, contrary to what was agreed to in the employment contract;
conduct that essentially terminates a pre-existing contractual relationship, which could be treated as dismissal –> entitled to the same amounts as a wrongful termination in writing
Wrongful Hiring
Employee is induced by employer’s inflated description of job to leave other employment and enter into employment contract
Essentially a negligent misrepresentation case
Vicarious Liability of the employer
Employer liable for acts of employee while in performance of duties of employment
Failure to perform contract, and tortious acts
Employers have money, employees usually do not
Workers compensation legislation and the Historic Compromise
Early 1900s, there was virtually no protection for workers, no workplace health and safety standards.
Historic Compromise:
- Workers gave up the right to sue in exchange for security of compensation
- Employers received protection from lawsuits and agreed to pay predictable costs
- who caused the mishap is not relevant to compensation - it’s an insurance policy
- Employers pay premiums, and employees are entitled to benefits if injured
Labor law jurisdictions based on the constitution
Federal:
- Responsibility over federally mandated businesses like banking, shipping, national pension scheme, insurance, etc.
Provincial:
- Responsible for all businesses that fall under the category of “property and civil rights”
What does collective bargaining do to employees?
It removes their common law remedies and replaces them with statutory ones
Employee in a union cannot bring up a private lawsuit against their employer
Workers’ 3 rights
- The right to refuse work they believe is dangerous to themselves or another worker;
- The right to know about potential hazards to which they may be exposed; and
- The right to participate in the health and safety process, mostly through joint health and safety committees
What is the definition of collective bargaining
A procedure for settling terms and conditions of employment by negotiation between an employer and its employees as expressed through representatives chosen by them
Bargaining agent
A body certified to act on behalf of a group of employees or employers
How does a group of employees initiate collective bargaining rather than individual?
- Employees will either join an existing union or form a new one
- Large unions have trained organizers who recruit new membership
- The group of employees that want to bargain collectively have to make up the majority of that organization’s employees to be recognized
Certification of a union
- Employees approach their employer with a request to be recognized as a bargaining unit
- If the employer agrees they meet with the union reps and devise a collective agreement
- In the case that the employer rejects the union, the union needs to get certified by the labor board to be recognized
How does the negotiation process proceed between union and employer?
- it begins when a certified union gives notice to the employer of its desire to bargain for a collective agreement
- Employer must meet the union reps and bargain in good faith
- Both sides can propose terms
- when they agree they put it in writing and sign/approve
Minimum duration of a collective agreement & can you alter it during the time?
- The minimum duration of a collective agreement is 1 year
- once the agreement is in place it cannot be unilaterally altered
What happens if the collective agreement reaches the end of the term and can’t reach an agreement?
- Parties must bring in a 3rd party to intervene (mediation, arbitration, etc.)
- only when the 3rd party fails can parties strike/lockout
What is a strike and when is it lawful?
- The union’s collective refusal to work
- It’s a lawful strike only when the collective agreement is not in effect, and all 3rd party assistance has failed
Wildcat Strike
unlawful strike when agreement in force, where employees strike without union’s approval
What is a Lockout and when is it lawful?
- When the employer refuses to allow employees to work
- lawful only when collective agreement isn’t in effect and 3rd party intervention failed
Picketing + picketing restrictions
The physical presence of persons at or neat the premises of employer for the purpose of conveying information
Cannot restrict people from entering building
If there is harm or injury to people courts can demand a decrease in picketers
Secondary picketing + its development over time
When employees picket somewhere other than their employer’s place of business
used to be unlawful unless you could prove a sufficiently close relationship between the businesses
Now it is considered peaceful protest by Supreme Court of Canada
Compulsory Arbitration
When parties cannot strike or lockout due to their essential role, yet negotiations still break down
- Allows work to continue with no interruption
- An arbitration board holds a hearing with reps from each side to hear the issues
- they then make a binding decision on the parties
What is a collective agreement? + form and rules
An agreement in writing, made by an employer and a union certified as the bargaining unit of the employees
Contains the terms and conditions for work performance, and rights and duties of employees, employer, and union
Can include things that would deem other contracts voidable
- i.e. economic sanctions
No strike or lockout can take place when agreement exists
Union - Member relationship
In Ontario, a union is not a suable entity
Unions have no existence independent of its members, not like a corporation
Relationship with members is one of contract
Agreement between members to be bound by contract, one does not abide, others can kick them out
Closed Shop
A company that only employs union members and requires them to secure and maintain union membership as a condition of employment.
Union Shop
A company that doesn’t require employees to join a union in order to be hired, but they must join within 30 days of employment.
Open Shop
A company that may have a union, but hires both union and non-union employees, and union membership is not a requirement for continued employment.
Agency Shop
A company that has a union, but hires both union and non-union employees, and union membership is not a requirement for continued employment; however, non-union employees have to pay a fee to cover collective bargaining costs.
Natural Justice
a common law principle of procedural fairness
i. know the case to be met
ii. opportunity to make full answer
iii. hearing before an impartial arbiter
