Chapter 26Individual Employment

CHAPTER 26
INDIVIDUAL EMPLOYMENT

REVIEW QUESTIONS
1. A properly prepared job description assists an employer in recruiting the most
fitting employee for the job. By carefully drafting a job description first, the employer
will know exactly what to advertise. A broadly drafted job description is advantageous to
both employer and employee. For example, the job description can later be used by the
employer as a standard of measurement upon which to assess and, if necessary, discipline
an employee. Likewise, employees can use the job description to ensure that they are not
being required to carry out duties extraneous to their position.
Advertising a position carries the risk of violating human rights legislation if it demands
qualifications which are not required for the job but have the effect of screening out
persons with disabilities. See Business Decision 26.1.

2. One example of an occupational qualification that would appear to be discriminatory is

a requirement that the job candidate must belong to and practice a certain religion.
Although such a requirement appears to discriminate between applicants based on the
prohibited ground of religion, it may be justified as a bona fide occupational requirement
in a situation where the job duties are to be discharged at a religious institution. Being a
rabbi, for example, requires being Jewish and practicing the Jewish tradition in a
particular way. The same is true of other religious institutions.

3. An employee is a person in the service of another under a contract of employment

that provides the employer with the right to control and direct the material details of how
the work is to be performed. An independent contractor is a person who contracts with
another to do something but is not controlled by the other in the manner in which the
undertaking is accomplished. The potential benefits of hiring an independent contractor
are that the employer need not provide the contractor with many of the protections
afforded to employees, such as reasonable notice of termination, overtime pay, severance
pay, etc. Although hiring independent contractors significantly reduces the costs
associated with statutory employee protection, it also results in a lesser degree of loyalty
and control. The benefits must be weighed against the potential costs on the basis of each
fact situation. A dependent contractor is a category between employee and independent
contractor. It is someone who meets the definition of an independent contractor, but who
works exclusively for one employer. This exclusivity can entitle the worker to certain
rights that are not otherwise owed to contractors.

4. The statement could amount to a misrepresentation of the terms of employment. A

misrepresentation could allow the employee to walk away from the employment contract
with impunity. If the misrepresentation is negligent or fraudulent, it could even lead to a
cause of action in tort or criminal law.

5. Two examples of enforceable restrictive covenants are

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(i) non-competition clause: prohibits or restricts an employees ability to work for

a competitor or to start a business that would compete with the employer. These
contractual provisions are particularly important where an employee develops a deep
understanding of the methods or internal workings of an employer, or develops special
skills while working for the employer.
(ii) non-solicitation clause: prohibits or restricts an employee from soliciting the
customers of the employer, but otherwise leaves the employee free to compete. This
clause might be especially important where an employee develops a personal client list or
otherwise has personal relationships with customers and clients.

6. Four workplace issues that should be addressed in an employment policy manual

are: (i) employee conduct and expectations, (ii) how the employment policy will
implemented, applied, and enforced, (iii) when and how performance reviews will be
carried out, and (iv) when and how the granting of promotion or probation will be carried
out.

7. An honest account of an employees performance provides constructive criticism

or praise of an employees quality of work. It also provides an evidentiary record of poor
performance should the employment relationship ever break down. At its base, an honest
and accurate performance review is designed to identify and correct workplace problems
before they threaten the employment relationship itself. Human resources managers
should give an honest and accurate performance review, though they should seek to do so
in as non-confrontational a manner as possible. Commendation should be given only
where deserved, though a new employee should not be unduly criticized while still
adapting to the corporate environment.

8. Suspension of an employee may be considered a reasonable course of conduct

when: (i) less severe disciplinary steps, such as verbal and written warnings, have already
been taken and no improvement has resulted, (ii) the employer has a legitimate suspicion
that the employee was involved in a workplace fraud, and (iii) the employers
employment policy manual has set out that suspension will occur in the case of the
employee conduct at hand.

9. There are several statutory regimes that have been designed and enacted to protect
employees in the workplace. Employment standards legislation is concerned with
holidays, wages, work hours, overtime and rest periods, leaves, and vacations. Human
rights legislation is set out with regard to discrimination, harassment and the duty to
accommodate disadvantaged employees in the workplace. Occupational health and safety
legislation is aimed at preventing accidents, injuries, and industrial diseases. Lastly,
workers compensation legislation creates compulsory compensation funds for employees
injured in the workplace.

10. Minimum wage is a statutory minimum level of wage that generally must be paid
to an employee. Minimum wage levels vary between provinces and are affected by
factors such as the level of industry in a province, cost of living, and the political beliefs
of the government in power.

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11. Direct discrimination occurs when an employer adopts a rule or practice that
results in a person being treated differently on the basis of a ground prohibited by human
rights legislation. Indirect discrimination, on the other hand, occurs when an employer
treats someone different on the basis of a characteristic other than a prohibited ground,
but in a way that ultimately has an adverse effect on that person by virtue of a prohibited
ground.

12. BFOR is an acronym for bona fide occupational requirement. A BFOR provides a
defence to what would otherwise be a discriminatory employment requirement, based on
the idea that the nature of some jobs justifies a discriminatory hiring policy. In order to
successfully assert BFOR as a defence, the employer must be able to prove that the
discriminatory requirement was imposed in good faith and with the sincere belief that it
was imposed in the interests of adequate performance of the job. It is extremely difficult
to think of a job that could not be fulfilled by someone who was not married. Marriage,
both as a ceremony and as a legal institution does not further qualify some one to perform
job duties. While it is true that some jobs might not seem ideally suited to those who
subscribe to the institution of marriage, it is quite another thing to require someone to be
married or not to be married.

13. When it comes to harassment, intentions are irrelevant. Sexual harassment is a

good example. Sexual harassment involves unwelcome or objectionable advances,
gesture or conduct. The requirement for sexual harassment involves an objective
standard; namely, where a person ought to have known that the advances, gestures, or
conduct was unwelcome. Thus even if a person doesnt know that his conduct is
unwelcome, his actions might be found to be of a harassing nature. To take a particular
example, sexist, racist, or homophobic emails, or jokes, in the workplace constitute
harassment even if the sender had no idea that they would be seen as offensive.

14. A prudent risk manager can help prevent violations of human rights legislation in
number of different ways. For example, managers can use employment policy manuals to
communicate that discriminatory or harassing conduct will not be tolerated. Risk
management also requires that companies ensure that all adopted policies comply with
human rights legislation. It is also considered good practice for an employer to institute
an informal complaints procedure so that human rights complaints can be investigated,
and hopefully resolved, internally.

15. No. Privacy legislation in BC and Alberta prohibits an employer from dismissing,
suspending, demoting or disciplining an employee who in good faith reports the employer
for violating privacy laws.

16. The aim of the minimum standards imposed by occupational health and safety
legislation is to prevent accidents, injuries, and industrial diseases through the reduction
of dangerous workplace conditions and the remedying of poor safety practices. In seeking
to defend itself against violating health and safety standards, an employer must observe

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due diligence requirements. That is, it must take every reasonable precaution to avoid
violating safety standards.
The purpose of workers compensation schemes is to financially compensate injured
workers and in so doing to reduce the incidence of lawsuits against employers. As such,
workers compensation socializes the costs of worker injuries by making them part of the
dollar cost of doing business, while setting limits on the amount and availability of
compensation. Most worker compensation legislation prohibits lawsuits against
employers, with some exceptions.

17. Six forms that may amount to just cause for a summary dismissal are: (i)
absenteeism, lateness and leaving work without permission, (ii) substance abuse, (iii)
incompetence and carelessness, (iv) dishonesty and disobedience, (v) conflicts of interest,
and (vi) criminal behaviour.

18. Factors that should be taken into account when determining a reasonable notice
period for the dismissal of an employee include: (i) the employees age, (ii) the nature of
the position held, (iii) the length of service, (iv) the salary level of the employee, and (v)
the employees likelihood of securing alternate employment. Employees who feel that
they have been dismissed without a reasonable notice period, or monetary compensation
in lieu of notice, may sue their employer for wrongful dismissal. Should the employee be
successful, they would be entitled to recover monies owed in lieu of notice, as well as
other damages for commissions, bonuses, or benefits owing.

19. Constructive dismissal occurs when an employer makes a unilateral alteration that
fundamentally changes the nature of a persons job. The three most common kinds of
changes that may amount to constructive dismissal are: (i) a reduction in salary or
benefits, (ii) a change in job status or responsibility, or (iii) change in geographic
location. If constructive dismissal can be proven, the employee will be treated as though
he or she has been dismissed without notice and will therefore be entitled to damages in
lieu of notice.

20. An employer could ask the employee to sign a release, promising to release the
employer from any possible legal claims the employee might have against the employer.
However, the employer must give the employee fresh consideration for the release to be
binding on the employee.

CASES AND PROBLEMS

1. The provinces set minimum pay rates in their employment standards legislation.
In this case, Jean-Louis adjusted Williams pay so that it was in line with the minimum
wage requirements. Although there was a reduction in his pay, there is no breach of
employment standards. William might try to argue that the reduction is his wages
amounts to a constructive dismissal. Given that the change in wages was only a slight
reduction, and given that the nature of Williams job did not change, his complaint would
not likely succeed on that ground either.

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2. The control test involves a determination of how much control the employer has
over the worker. It involves four factors: (i) the employers authority to select individuals
for employment, (ii) the employers ability to decide the payment scheme, (iii) the
employers control and direction with respect to the type, manner and timing of the work,
and (iv) the employers right to discipline the worker. On the facts, NumbersMagic
treated Chris as an individual bookkeeper and was in a position to dictate a payment
scheme. Chris was also under the control of NumbersMagic in terms of her work hours,
location and deadlines. NumbersMagic hired her and had the ability to fire her. She was
under the direct supervision of a manager who could discipline her accordingly. All in all,
Chris seemed to be under the control of NumbersMagic and was therefore an employee.

Applying the organization test requires a determination of whether Chris work was
integral to the overall operations of NumbersMagic. According to the facts, Chris
bookkeeping services were essential. Unlike some bookkeeping duties, which are only
required from time to time, the work that Chris did was performed on a daily basis. Given
that the business was centred on accounting and bookkeeping, Chriss job seemed to be
an important part of the overall operation. On this basis, Chris is likely an employee.

[Based on Pacific Rim Nutrition Ltd v Guardian Insurance Co of Canada [1995] 8 WWR
74 (BC SC)]

3. The question here is whether Patinski is an employee (and therefore qualifies for
damages in lieu of notice) or is an independent contractor (where the contract may be
terminated without notice). Patinski worked full-time for the city, but she set her own
hours, provided her own equipment and hired her own labour. She was paid her full rate,
with no deductions. Of her own initiative, she bought specialized equipment with an eye
to increasing her profit margin, a risk that could have wound up costing her if it didnt
work out. It also seems that she could take on other work if she completed her contractual
tasks at the landfill. Its not clear that the city could discipline either Patinski or her
labourers. On the other hand, the city clearly depended upon her to show up and do the
work, and it could be said that she was integral to the operation of the landfill, if not to
the city as a broader organization.
In this case Patinskis ability to control aspects of her work that could result in increased
profit or loss, and the fact that she was required to supply expensive heavy equipment and
labourers would probably weigh heavily towards her characterization as a contractor.

4. Mr. Buckstons video cameras would be unlikely to be found in compliance with

Canadas privacy laws. First, it is questionable where there is a need for the cameras at all
the factory has been turning a reasonable profit every year. Second, there is a good
possibility that the cameras would not achieve Mr. Buckstons goal of increasing
productivity. If the cameras were to have an adverse effect on workplace morale,
employee productivity might actually go down. Some employees might also decide to
quit if they did not want to work in an environment where they were constantly watched
and yelled at. Third, there is no evidence that the privacy violation would be proportional
to the possible benefit that could be gained. If Mr. Buckston were able to point to other
factories where great increases in productivity followed the introduction of cameras, then

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he might have some grounds to say that the benefit gained from the cameras was
proportional to the privacy loss. However, there are likely a number of less privacy-
invasive ways to achieve the goal of increased productivity. For example, Mr. Buckston
could implement an employee performance review system, along with a program of
promotion and progressive discipline. This system could be based on the information
already gathered in the factory information about the number of bikes produced by each
worker without any privacy-intrusive measure at all.

5. The death of the fisherman was a result of a safety issue in the workplace. The
first potential liability is to WeBuildIt Inc under Occupational Health and Safety
legislation. If it is determined that the workplace was unsafe, the company could be
civilly or criminally liable under the statute. Likewise, if the company was negligent in
allowing Daneles structure to be installed to the overhang, it may be liable to the
fishermans wife in a wrongful death lawsuit. Even if the company was not itself
negligent, it may be held vicariously liable if Danele is found to be an employee.
Although we are not given enough facts to make a clear determination, it appears as
though Daneles work was under the supervision and control of McPencil and her job was
integrated into the overall project along with four other managers in a manner that
suggests that she would meet the requirements of the organization test. If this is correct
and if Danele was negligent in her design and installation of the giant tuna fish,
WeBuildIt will be vicariously liable. If Danele was negligent, she might also be liable to
the fishermans wife. It is less likely that she will be sued directly unless she happens to
be very wealthy. Finally, the fishermans wife might attempt to receive workers
compensation benefits. She would only do so if the success of litigation seemed unlikely
or undesirable, since she would have to waive her right to sue in order to make a claim
under the collective liability scheme.

[Based on Mock v Regina Trading Co [1922] 2 WWR 1241 (Sask CA), varying [1922] 1
WWR 133 (Sask KB)]

6. The facts give rise to an employment standards dispute that can only be resolved
by reference to the actual employment contract in conjunction with the employment
standards legislation in the appropriate jurisdiction. The fact that the employment contract
was silent on the issue of the number of hours is not determinative. Although many
employment contracts for salaried employs do not contain a mechanism for overtime
work, it is possible that the parties shared an understanding about how the employee
would be compensated for additional hours. In such a case, it could come down to which
party is more credible in light of the surrounding facts and circumstances. If it is
determined that the contract, written or oral, did not preclude entitlement to additional
compensation, it might become necessary to look to employment standards legislation. In
most provinces, the minimum rate for overtime pay is 1.5 times the employees regular
rate of pay (in some provinces, it s 1.5 times the rate of minimum wage.) Since some
provinces also enact maximum hours that cannot be exceeded regardless of the rate of
pay, it will be important to determine whether the relevant jurisdiction does so as well.
Unless Puneets employer is able to prove that his salary excluded a scheme of overtime
pay, Puneet will likely have a claim under the relevant employment standards legislation.

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[Based on Kings Motel Winnipeg Ltd v Samuel (1985) 85 CLLC 16045 (Man LB)]

7. In order to argue that the insurers policy is discriminatory, it is necessary to first

consider whether the limits on benefits infringe any of the enumerated or analogous
grounds in human rights legislation. One of the grounds established in the case law is
discrimination on the basis of a pregnancy, which has been extrapolated from the
enumerated ground of sex discrimination. Elsa should argue that the insurers policy
directly discriminates against her by denying her benefits that are available to other
employees, solely because she is pregnant. Pregnancy, while it is not an illness, is a valid
health-related reason for absence from work, and by distinguishing it from other health-
related absences, the plan imposes unfair disadvantages on pregnant women.

[Based on Brooks v Canada Safeway Ltd. [1989] 1 SCR 1219]

8. Sylvan will commence an action for constructive dismissal. In order to succeed he

must be able to prove that Lucy unilaterally made a fundamental change to the nature of
his employment. He will do so by demonstrating the substantial reduction in his salary
and the change in his job status and responsibility. He will argue that these changes where
not the result of a drastic change in the economy but because Lucy wanted to fire him for
not getting along with Lucys nephew. This argument will be very persuasive and it is
therefore quite likely that Sylvan will succeed. Lucy should have used other means to
solve the personnel problem. First, Lucy might have tried putting the parties together to
see whether they could work it out. Even if this had failed and Lucy decided that Sylvan
had to go, it would have been prudent to give proper notice and perhaps even facilitated
Sylvan in finding a new job by agreeing to act as a reference. These steps would have
helped to avoid costly and unnecessary litigation.

9. In order for such legislation to apply, Sweyn would have to be considered an

employee. Sweyn was under the control and supervision of Svetlana and her husband. He
had no way to leave the construction site once his feet started to hurt and he continued to
work on the basis of Svetlanas husbands instruction. If not before, certainly once his
feet turned yellow, he should have been offered a ride home. Svetlanas failure to stop
him from working in an unsafe environment not only contravenes Occupational Health
and Safety legislation, it also falls below the standard of care required by tort law. In the
actual case upon which this problem was based, the court determined that the sibling was
negligent and should be treated as an employer even though the brothers offer to help on
the construction project was purely gratuitous. In order to prove due diligence, Svetlana
would have to demonstrate that she took every reasonable precaution to avoid violating
the safety standard. Had she required him boots but he refused, she might have been
successful. On the facts, she did no such thing. [based on Peters v Peters (1983) 134 APR
133 (QB)]

10. An employment relationship imposes a duty on an employee to be faithful and

honest. Norris was dishonest with his employers, either actively or passively obscuring he
fact that he was setting up a business in competition with them. Courts have permitted

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summary dismissal in certain cases where an employee engages in unfair competition

with the employer. The test for whether an employees dishonesty constitutes just cause
for dismissal is whether the dishonesty was sufficient to cause a breakdown in the
employment relationship.
Employee fraud occurs where an employee intentionally deceives the employer in
a way that is detrimental to the employers interests, and constitutes just cause for
dismissal where the nature of the fraud is incompatible with a continuing employment
relationship. This may well describe Norris actions. However, it is not necessary to prove
fraud in this case to establish just cause, so long as the breakdown test is met.

[Based on Knowlan v Trailmobil Parts and Services Canada Ltd [2006] BCJ No 457
(SC)]

11. This fact scenario is loosely based on the case H.L. Staebler Company
Limited v Allan, 2008 ONCA 576.

A court will generally consider three things when deciding whether or not to enforce a
restrictive covenant: does the employer have a proprietary interest worthy of protection?;
are the temporal and geographic restrictions reasonably required to protect the employers
proprietary interest?; and does the covenant restrict competition generally, or merely bar
solicitation of the former employers clients? Because Gurpreet did conduct business with
BucksCorps clients within two years of leaving that company, she can only avoid
liability if the court refuses to enforce the covenant.

In this case, BucksCorps proprietary interest is its trade connections with its clients. The
covenant is limited to two-years in length. The chapter suggests that a two-year non-
competition clause might be reasonable in the insurance industry, and students may
analogize that same response to the investment industry.

The covenant, however, does not contain any geographical limitation and is therefore
quite broad in its application. Furthermore, the clause is not clearly limited to non-
solicitation. It restrains Gurpreet from conducting any business whatsoever with her
former employers clients, whether she solicits their business or not. In Staebler, an
analogous clause was, for this reason, considered a non-competition clause rather than a
non-solicitation clause even though it did not explicitly limit the employees ability to
compete in the same industry. Courts usually prefer non-solicitation clauses but will make
exceptions to that general rule where the temporal and geographic limits in a non-
competition clause are reasonable. Students will likely point out that the complete
absence of any geographical limit in Gurpreets non-compete clause is unreasonable. The
court here (as in Staebler) will likely refuse to enforce this broad restrictive covenant.

12. The facts for this question are based on the case Hydro-Qubec v Syndicat des
employ-e-s de techniques professionnelles et de bureau dHydro-Qubec, section locale
2000 (SCFP-FTQ) 2008 SCC 43.

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The duty to accommodate is not absolute. If the employer has made a reasonable
adaptation to the workplace or can show undue hardship, then the employer may have
discharged its duty. This question asks the student to assess whether or not that duty was
discharged.

The employer has a duty to arrange the workplace or duties to enable the employee to do
his or her work, if it can do so without undue hardship. In this case, HydroCorp made
temporary job assignment accommodations by allowing Aisha to perform lighter duties
than usual. It also allowed her to take sick days as needed, which amounted to Aisha
being paid a years salary where she missed more than half of her workdays. This
accommodation allowed Aisha to stay with the company as long as it seemed feasible that
she could continue working. HydroCorp appears at this point to have made a reasonable
accommodation in the workplace.

HydroCorp can likely show that further accommodation, specifically continuing to

employ Aisha despite her indefinite inability to return to work, would amount to undue
hardship. Page 671 outlines factors to consider when assessing whether the employer
faces undue hardship. Here, the student may discuss the cost of paying an employee her
salary when she may not ever return to work. They may also question whether allowing
an employee to remain off work indefinitely will affect morale. The fact scenario does not
mention whether alternative sources of funding to allow the accommodation are available
(such as health insurance), but the student could consider this as a possibility in Aishas
favour. Nevertheless, as in Hydro-Quebec, further accommodation would substantially
alter the employment contract, given that the purpose of the employment contract will
indefinitely go unfulfilled. Such accommodation would likely be beyond that which is
reasonably required by the employer.

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