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, Conduct Incompatible, Willful Disobedience

Notice Constructive Dismissal

Wrongful Dismissal Lawsuits Union/Labour Relations Workplace Privacy

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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 or services independent contractor a person who is in a working relationship that does not meet the criteria of employment

COURTS HAVE USED VARIOUS TESTS TO DISTINGUISH BETWEEN THE TWO RELATIONSHIPS
the degree of control exercised over the individual by the employer the ownership of tools, chance of profit, and the risk of loss from performance the degree of integration
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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 certain grounds

marital status, race, colour, physical or mental disability, religion or creed, sex, age

DISCRIMINATION DEFINED
treating someone differently on the basis of a prohibited ground adverse effects discrimination discrimination that occurs as a result of a rule that appears neutral but in its effect but is discriminatory systemic discrimination discrimination that results from the combined 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 term contracts 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)
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EMPLOYEE WELFARE ISSUES

Employee contracts are impacted by legislation relating to employee welfare and workplace discrimination
EMPLOYMENT STANDARDS LEGISLATION
sets out minimum standards for certain aspects of the employment relationship (minimum notice, vacation time etc.)

SAFETY AND COMPENSATION

workers compensation legislation is designed to address accidents and injuries in the workplace employee economic safety addressed through various pieces of legislation including the federal employment insurance act and federal pension plan (CPP) Note: Quebec has its own 8 insurance plan 2001 Nelson Thomson Learning

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 policy a system that follows a sequence of employee discipline from less to more severe punishment- following such a policy will assist an employer an legally justifying a dismissal for serious misconduct condonation employer behaviour that indicates to the employee that misconduct is being overlooked- previous condonations make it difficult for an employeer to legally justify a dismissal 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 notice a period of time for an employee to find similar 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 TO LENGTHEN NOTICE ARE

a high degree of specialization, inducement to join an organization, company policy, custom and industry practice, 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 expressly terminated employee it amounts to termination should an employee elect to treat it as such fundamental term the employer must make a significant unilateral change to a fundamental term of the contract to create a constructive dismissal most constructive dismissal cases involve demotions or pay cuts
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WRONGFUL DISMISSAL SUIT

WRONGFUL DISMISSAL SUIT ARISES WHEN THERE 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 to additional damages wrongful dismissal damages court determines how many months notice should have been given times salary and benefits for that period may also receive out-of-pocket costs, aggravated, and punitive damages less money earned or received during notice period 16
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TERMINATION SETTLEMENTS

NEGOTIATIONS
offer should be fair to employee could include cash, benefits, counseling, and a reference release a 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 certification the process by which a union is legally recognized as a bargaining agent for a group of employees

LABOUR RELATIONS
labour relations board a body that administers labour relations legislation collective bargaining a mechanism by which parties enter a collective agreement or contract collective agreement the 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 an

invasion of privacy

COLLECTION AND DISSEMINATION OF INFORMATION

legislation gives individuals the right to control personal information

MONITORING OF COMMUNICATIONS
a communication is private only if all parties have expectations that it will not be intercepted
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