Slides_Week7_S04.ppt

7/28/2019 Slides_Week7_S04.ppt

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CONTENTS

Independent Contractors and Employees

Discrimination (context of hiring)

Employment Contracts

Contract terms

Employee welfare issues

Ending the Employment Relationship Options

Dismissal for Cause

Misconduct, Neglect of Duties, Incompetence, ConductIncompatible, Willful Disobedience

Notice

Constructive Dismissal

Wrongful Dismissal Lawsuits

Union/Labour Relations

Workplace Privacy 2001 Nelson Thomson Learning


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THE EMPLOYMENT RELATIONSHIP

THE EMPLOYMENT RELATIONSHIP a contractual relationship whereby an employer provides

remuneration to an employee in exchange for work orservices

independent contractora person who is in a working

relationship that does not meet the criteria of employmentCOURTS HAVE USED VARIOUS TESTS TO

DISTINGUISH BETWEEN THE TWO

RELATIONSHIPS

the degree of control exercised over the individual by theemployer

the ownership of tools, chance of profit, and the risk of lossfrom performance

the degree of integration

2001 Nelson Thomson Learning


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IMPLICATIONS OF AN EMPLOYMENT

RELATIONSHIP

IMPLICATIONS employees have certain statutory and common law based

rights and benefits that independent contractors do not

have

employees may sue for wrongful dismissal, but this avenue

is not available to an independent contractor

employer responsible for the torts of an employee in the

course of employment but not for those of an independent

contractor

employer has certain legal obligations (i.e., income tax

withholding, workers compensation premiums) with

respect to employees that do not apply to independent

contractors



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DISCRIMINATION

EFFECT OF HUMAN RIGHTS

REQUIREMENTS ON HIRING

prohibits discrimination in hiring on certaingrounds

marital status, race, colour, physical or mentaldisability, religion or creed, sex, age

DISCRIMINATION DEFINED

treating someone differently on the basis of a prohibitedground

adverse effects discriminationdiscrimination that occurs as aresult of a rule that appears neutral but in its effect but isdiscriminatory

systemic discriminationdiscrimination that results from thecombined effect of many rules, practices, and policies



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DEFENCES TO DISCRIMINATION

BONA FIDE OCCUPATIONAL

REQUIREMENT (BFOR)

a defense that excuses discrimination on a prohibited

ground when it is done in good faith and for legitimate

business reasons

DUTY TO ACCOMMODATE

the duty of an employer to modify work rules, practices,

and requirements to meet the needs of individuals who

would otherwise be subjected to unlawful discrimination If there is a basis (up to the point of undue hardship) upon

which an employee can be accommodated, than a BFOR

will not be found to exist



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TYPES OF EMPLOYMENT CONTRACT

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- most employees have indefinite termcontracts be they written or oral



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THE EMPLOYMENT CONTRACT

IMPORTANT ITEMS TO BE ADDRESSED IN AN

EMPLOYMENT CONTRACT

date on which contract begins

duration of the contract, if any

position and description of the work to be performed

compensation (i.e., salary, wages, benefits)

termination provisions

recital of management rights (i.e., employer has a right to

make changes to job duties and responsibilities)

confidentiality clause, if appropriate

entire agreement clause (i.e., the written contract

contains the whole agreement)

2001Nelson Thomson Learnin


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EMPLOYEE WELFARE ISSUES

Employee contracts are impacted by legislationrelating to employee welfare and workplacediscrimination

EMPLOYMENT STANDARDS LEGISLATION

sets out minimum standards for certain aspects of theemployment relationship (minimum notice, vacation timeetc.)

SAFETY AND COMPENSATION workers compensation legislation is designed to address

accidents and injuries in the workplace

employee economic safetyaddressed through various pieces oflegislation including the federal employment insurance act andfederal pension plan (CPP) Note: Quebec has its owninsurance plan



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ENDING THE RELATIONSHIP

EMPLOYER MAY END RELATIONSHIP BY

summarily dismissing, or firing, an employee for

just cause

giving the employee notice of termination

acting in such a manner that the employment

relationship becomes untenable



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DISMISSALS FOR JUST CAUSE

JUST CAUSE

employee conduct that amounts to a fundamental

breach of the employment contract, for example

serious misconduct habitual neglect of duty

incompetence

conduct incompatible with duties or

prejudicial to the employers business

willful disobedience in a matter of substance



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SERIOUS MISCONDUCT

SERIOUS MISCONDUCT intentional, harmful conduct of the employee that

permits the employer to dismiss without notice

progressive discipline policya system thatfollows a sequence of employee discipline fromless to more severe punishment- following such apolicy will assist an employer an legally justifyinga dismissal for serious misconduct

condonationemployer behaviour that indicates

to the employee that misconduct is beingoverlooked- previous condonations make itdifficult for an employeer to legally justify adismissal for such misconduct



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HABITUAL NEGLECT OF DUTY

AND INCOMPETENCE

HABITUAL NEGLECT OF DUTY

customary failure to perform employment duties

INCOMPETENCE

lack of ability, knowledge, or qualification to

perform employment obligations



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CONDUCT INCOMPATIBLE

AND WILLFUL DISOBEDIENCE

CONDUCT INCOMPATIBLE

personal behaviour that is irreconcilable with

employment duties

WILLFUL DISOBEDIENCE

deliberate failure to carry out lawful and

reasonable orders



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DISMISSAL WITH NOTICE

IN THE ABSENCE OF JUST CAUSE, THE

EMPLOYER IS REQUIRED TO GIVE NOTICE

OR PAY IN LIEU OF NOTICE UPON TERMINATION

reasonable noticea period of time for an employee to findsimilar employment

REASONABLE NOTICE PERIODS primary factors in determining how much notice is

required:

character of employment. length of service, age,availability of similar employment, etc.

OTHER FACTORS THAT TEND TOLENGTHEN NOTICE ARE

a high degree of specialization, inducement to join anorganization, company policy, custom and industrypractice, personal characteristics, economic climate



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CONSTRUCTIVE DISMISSAL

CONSTRUCTIVE DISMISSAL employer conduct that amounts to a fundamental

breach of the employment contract

even though employer may not have expresslyterminated employee it amounts to terminationshould an employee elect to treat it as such

fundamental termthe employer must make asignificant unilateral change to a fundamental

term of the contract to create a constructivedismissal

most constructive dismissal cases involvedemotions or pay cuts



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WRONGFUL DISMISSAL SUIT

WRONGFUL DISMISSAL SUIT ARISES

WHENTHERE IS employee claims no just cause

employee given notice, but claims notice is inadequate

constructive dismissal and employee claims notice they

should have received

MANNER OF DISMISSAL

bad faithdismissals may make an employer vulnerable toadditional damages

wrongful dismissal damagescourt determines how manymonths notice should have been given times salary andbenefits for that period

may also receive out-of-pocket costs, aggravated, andpunitive damages less money earned or received during

notice period 2001 Nelson Thomson Learning


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TERMINATION SETTLEMENTS

NEGOTIATIONS

offer should be fair to employee

could include cash, benefits, counseling, and a

reference

releasea written or oral statement discharging

another from an existing duty

once employee accepts a termination package, it

is customary to have the employee sign a release



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THE UNION RELATIONSHIP

LEGISLATION

both federal and provincial governments have legislation

that guarantees the right of employees to join trade unions

certificationthe process by which a union is legally

recognized as a bargaining agent for a group of employees

LABOUR RELATIONS

labour relations boarda body that administers labour

relations legislation

collective bargaininga mechanism by which parties entera collective agreement or contract

collective agreementthe employment agreement reached

between the union and employer setting out the bargaining

unit employees terms and conditions of employment



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WORKPLACE PRIVACY

SURVEILLANCE AND SEARCHES

video or closed-circuit television may not be aninvasion of privacy

COLLECTION AND DISSEMINATION OFINFORMATION

legislation gives individuals the right to controlpersonal information

MONITORING OF COMMUNICATIONS a communication is private only if all parties

have expectations that it will not be intercepted


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