Week 3 Reading Comprehension Questions

Question 1
What are the advantages of a written employment contract over an oral one? Are there
any disadvantages?
A written employment contract reduces the risk of misunderstanding for both parties and
therefore, reduced future disputes or lawsuits. It also allows parties to early discuss any
potential controversy more constructively, once employer and employee are still on
“good terms”. Finally, a written contract makes it easier to prove the terms and conditions
of the employment to court, compared to oral agreements.
Some could argue that a written contract carries the disadvantage of limiting what an
employee can do or, in some cases, employees might find it necessary to hire a lawyer to
better understand the term of the contract, which can be costly for the employee (HG.Org
Legal Resources, n.d.).

Question 2
If a dispute arises out of an oral employment contract, how does a court establish the
terms and conditions of the contract?

If there is a dispute in an oral contract, both parties will need to prove to the court that
their version of the contract is the truest, once there is no clear written record of what the
parties agreed initially. However, the court will also take into consideration the implied
terms applicable to all employment contracts (unless the parties agreed to change them).

Question 3
What are the main legal issues that can affect the enforceability of an employment
contract?
1. Lack of Consideration: for a contract to be enforceable it’s necessary to have been
an offer, acceptance, and consideration. In this regard, a lack of consideration will
happen if the employee start working before the contract is finalized. Or when the
employer adds new terms to the already signed contract without providing an
opportunity for fresh consideration to the employee.
2. Inequality of Bargain Power: it happens when an employee had no condition to
fully understand the terms of the contract when signing it and, therefore, the
contract favours more the employer.
3. Obsolescence: the terms of the contract signed, “no longer reflects the realities of
an employee’s position within the organization”. (Filsinger et. al., 2021, p. 159).
4. Failure to Meet minimum Statutory Standards: if a contract does not meet the
barely minimum statutory standards established, it will be considered null and
void.
5. Use of Ambiguous Language: contracts should be written in clear terms to avoid
double interpretation, which in a potential dispute, will lead to interpretation in
favour of a party that did not write the contract, typically, the employee.
Question 4
What is the contra proferentem rule of interpretation? Does this rule seem fair to you?
Why or why not?

The contra proferentem rule of interpretation determines that in case of ambiguity in an

employment contract term, the interpretation will favour the party who wrote the
contract, which is generally the employee.
I believe this is a fair rule. Due to the usual disparity of power between employers and
employees, the second tends to just accept the terms of the contract and secure the
employment, even if those terms might be unclear to them. Therefore, the contra
proferentem rule works as a way to make employers write their contracts in a
straightforward way for employees to understand or risk having the interpretation
favouring the employee in a potential dispute.

Question 5
Explain the difficulties that an employer may face with a fixed-term contract.

Employers should pay attention to not missing the renewal date of a term contract and
avoid it to become an indefinite contract, leading to common law requirements of notice
and/or pay in lieu. It’s important to not terminate the employee before the end of the
contract, otherwise, the employer might incur damages based on the remainder of the
term.

Question 6
Why are courts generally wary of restrictive covenant clauses?

Covenant clauses are created to protect the employee to use the business’s confidential
information in other employments, such as non-disclosure, non-solicitation, and non-
competition clauses.
Courts tend to be cautious about restrictive covenant clauses, especially non-solicitation
and non-competition ones, as they might prevent the employee to earn a living in the area
of expertise, once the employee's job involves direct contact with clients and, it’s the
employer’s responsibility, to prove that the non-solicitation clause for this employee is
reasonable. In the same way, the non-competition clause also affects the employee as it
restricts his ability to work in a specific geographic area for a certain period, which
should not exceed more than 12 months after the end of the employment.

Question 7
What contractual terms do you think an employee may have the most difficulty with?

Employees may face difficulties in respecting covenant clauses, as they demand special
attention to not configure a breach of confidentiality in new employment. The employee
should clarify with employers what information is considered confidential to avoid using
it in the future and lead to a breach of confidentiality issue.
Question 8
What are the chief components of the foundation of Canadian labour laws (the Wagner
Act Model)?
1. The right to join a union.
2. The certification process for unions and compulsory bargaining.
3. Establishment of the collective agreement.
4. Prohibition against strikes & lockouts during the term of a collective agreement:
5. Duty to parties to bargain in good faith.
6. Unfair labour practices prohibition.
7. Establishment of the Labour Relations Board (LRB) to enforce labour relations
codes.

Question 9
Outline the certification process in British Columbia.
1. Have sufficient workers joined or signed up, specifically 45% of the bargaining
unit.
2. Applies to the Labour Relations Board (LRB)
3. The Labour Relations Board (LRB) will evaluate if the bargaining unit is
appropriate based on a community of interests, the nature of the employer’s
organization, geography, an agreement between the parties, etc.
4. The LRB confirms the number of employees in the unit, the proof of membership
is valid and at least 45%
5. The LBR order a representation vote and a majority of the employees in the
bargaining unit must vote in favour of the union for 10 days.
6. The LBR approved or rejects the certification.

Question 10
Fundamentally, what is a collective agreement?

A collective agreement is a formal written document between an employer and a trade

union, that established the union as the certified bargaining agent for all the employees. It
contains the terms of work, establishes procedures for dispute resolution and overrides
any individual contract, as all employees are equally subordinate to the terms of the
collective agreement. Finally, once the collective agreement is concluded, there will be
no strike or lockout during the term of the agreement, due to the peace obligation.

References:
Filsinger et. al. (2021). Employment Law for Business and HR Professionals – Alberta &
BC Edition (4th ed.)

HG.Org Legal Resources. (n.d.) Written Employment Contracts - Pros and Cons.
Retrieved September 23, 2022, from https://www.hg.org/legal-articles/written-
employment-contracts-pros-and-cons-51676