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Canada (511,260)
MCS 3040 (111)
Lecture 9

MCS 3040 Lecture 9: MCS3040_ W9

10 Pages
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Department
Marketing and Consumer Studies
Course Code
MCS 3040
Professor
Joe Radocchia

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Description
1 th November 14 Employment Law Class focuses on: Chapters 20 -22 Employment Law  Is influenced by contract law  Employment is based in contract law [has its foundations within here primarily]  Also influence by tory aw and government legislation  Contract Law and Tort Law is Common Law/Judge Made Law Independent Contractor vs. Employee  Textbook goes over what makes one an employee, or what makes on an independent contractor o Contractor – is there own boss; self employed; performs service o Usually a specific task or project is time limited – employee o Independent contractor – owns all tools o Pg. 506 – criteria that has come from case law; where someone is an independent contractor or employee  Degree of control diluted over the employee  The more control the employer has over the employee, when, how and where they do they work – moves into the realm that one is an employee  Degree of owner of tools  Degree of integration – how much is this individual really impartial of the employer, or are they apart from the employer o Example – Prof’s case  Client – picks up/delivers groceries to people  Slip and feel and broke his leg on ice when delivering package  Wanted to sue under tort law  Employee? – no all drivers are ‘independent contractors’  Payed every Friday, cash, use company car, dispatcher tells them where the delivers are, shift hours, provides you with the tools, what hours you work … BUT CALLED AN INDEPENDENT CONTRACTOR (?) o Prof thinks that the individual is an employee, therefore the injury was under employment – Workplace Safety and Insurance Act reached out  All criteria showed towards showing the client as an employee  Employer is Vicariously Liable for Employee o As long as the actions of the employee arise out of the scope/ bounds of their actions- not responsible 2 o Responsibility is not absolute o Employer may have issues under negligent hiring – didn’t properly monitor the employee/ training them properly o Independent Contractor – responsible for their own mistakes/ negligence Government Legislation Related to Employment Law  Ontario Human Rights Code o Deals with issues of discrimination that may occur within the province  Not just restricted within the employer/employee relationship – but often occurs within o Applies to private relationships o Based upon discrimination of sex, religion, race, culture, disability, etc. o Deals with harassment o If a human rights violation is found to exist, there are remedies that the victim may ask for  Remedies or relief – come from Ontario Human Rights Tribunal  Damages – compensated for the damages faced since working for the employer  May request the reinstate of the job – lost or did not get because of discrimination o Federal Human Rights Codes – also applies to both public and private employers o Every province has a human rights code o Advers and Systemic Discrimination  Advers – on its face, the practice that is being implemented, may appear to be neutral, but when dig down deeply, its discrimination  Systemic – these rules over time create a discriminatory environment  Employment Standards Act o Deals with setting minimize statutory criteria the deals with issues of wages [minim] vacation pay, hours of work, before over time must be payed, if you lose you job – what your entitlement is  Workplace Safety and Insurance Act o Sets up a no fault system – if you get hurt at work, while doing you job, you are entitled to benefits o Benefits may include the payment of loss of earning, rehabilitation benefits, occupational therapy, their ‘version’ of Pain and Suffering o Also deals with workplace harassment  Occupational Health and Safety Act o Deals with employer obligations that employees work in a safe environment o If found that employees are working in a non safe environment – employer can be fined, made to make it safe, employer may be sent to jail [not done often] if done on purpose, or done nothing about it 3 o Example.  Prof’s client and his son were working for a construction company – putting in sewer pipes for a duplex  Were in the ‘trenches’  The ‘non-regular’ trench supervisor was over looking the job – wasn’t a licenced operator  Stabilizer came un done – hit by his elbow – same down on the son and crushed him  Father was compensated with benefits – seeing his son die before him  Minister of labour investigated this circumstance – significant fines against the company  Ontario Labour Relations Act o Primary deals with the relationship between an employer and the union o Union protects the employees o Collective agreement – contract between the union and the employer; union becomes a representative of the employees o If the employer and union can not resolve a dispute, they may have to take the dispute to the Ontario Labour Relations Board, trying to resolve it there BFoR – Bona Fide occupation Requirement  Bona fide – meaning in good faith  Employers may argue the need of a policy for the functioning of a specific task – relates to the functioning of the business o Requirement done in good faith, and done for the job – then it may be justified; even if resulting in some discrimination Duty to Accommodate  Employers have to accommodate, within reason, certain issues that may arise between the relationship between employer/employee o Example – Employee and alcoholism  Or you insist that the employee has to do a specific task – however can’t; have to accommodate as to what else it can do Page 511 – 512: Meiorin Case  SCC decision nd  2 case choice from assignment  Question ask: Did the aerobic standard discriminate on the basis of sex? o Court held it was discriminatory 4  To justify if as BFoR – employer would have to show the following *MUST MEET ALL THREE* o 1. The standard was applied rationally for the purpose of the job o 2. The standard was adopted in honest and good faith o 3. Standard was reasonably necessary for that accomplishment  Court Conclude that passing the aerobic test was not necessary o Employer failed to establish it was reasonably necessary  BC Human Rights Code – reinstated her job back  Advers Discrimination  Had to show that the employer took steps to accommodate the employee *STEPS TO SETTING UP A CONTRACT – IN TEXTBOOK* GOOD IDEA TO LOOK INTO Fix Period of Time Contract  Period of time specified Indefinite Contract  No set period of time set Termination of Employee  If an employer fires an employee, that employer needs to establish just cause – need good reason as to why they terminate the contract with the employee  When an employer fires you, the firing is a breach of contract – breaking/breaching the contract  Employer may have reason to breaking the contract – has just cause o Serious misconduct o Habitual Neglect of duty o Incompetence o ….  Notion of just cause – defined under contract law, but also applied in the Employment Standards Act  If the employer does not have just cause – the employer has breach the contract, and the dismissal is wrong = wrongful dismissal o Obligated to compensate you  Example. Linemar doesn’t have a union [you work there] o And you’ve been there for 15 years; you’re a quality control manager o Linemar comes to you saying same pay, but instead of your department being 20 people, its 80 people reporting to you  You receive no help 5 o What has the employer done to that contract?  Unilaterally, arbitrarily changed your contract o Can you as an employee say ‘you ineffectively fired me’?  Because the employer has breached your contract, they have indirectly fired you  Called Constructive dismissal – can occur for varying reasons  Example – Prof’s Client was being harassed by the manager o Work environment poisoned – she was afraid and on edge o Prof argued, she had been constructively dismissed  If an employee is consistently neglecting their lack of duty – employer must address it – employee must be given warnings about their behaviour, because if not, then if can be argued that the employer ‘accepted’ the behaviour without saying anything – MUST BE JUSTIFIED  If termination is wrongful and not justified, or constrictive dismissal – may seek compensation under Employment Standards Act – employer must pay the employee the minimum Employment Standards Act Minimum  Ontario o Defines 2 categories of compensation  Notice – entitled, having to working for an employer 3 months, or more, to be entitled to any notice  Probationary period of 3 months – if fired under 3 months, don’t have to be given a reason why  If more than 3 months – entitled to 1 week, for every year you worked, of pay up to 8 weeks o if you have been wrongfully terminated  Severance – you have to work for the same employer for 5 years or more, AND the employer has to be of a certain size [50 or more employees, or have a payroll of more than 2.5 million dollars], you are entitled for 1 weeks pay for every year worked for up to 26 weeks  On top of Notice  Example. Working for Linemar for 10 years – fires you for no reason; o Linemar has 200 employees o Enti
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