Class Notes (839,315)
Canada (511,260)
MCS 3040 (111)
Lecture 9

MCS 3040 Lecture 9: MCS3040_ W9

10 Pages

Marketing and Consumer Studies
Course Code
MCS 3040
Joe Radocchia

This preview shows pages 1,2 and half of page 3. Sign up to view the full 10 pages of the document.
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
More Less
Unlock Document

Only pages 1,2 and half of page 3 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.