CHAPTER # 20 – The Employment Relationship
Both Federal and Provincial have employment laws:
Federal – regulate industries such as banking, airline, broadcasting, railway and
Provincial – affect all other employees – ie. A newspaper company is not
federally regulate, so employees under the provincial legislation.
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. (Doctors, and lawyers)
- ADVANTAGES: tax savings, flexibility, and independence in arranging a work
Employees vs. Independent Contractor:
Courts have come up with a variety of tests to distinguish between the two:
1. The Degree of control exercised over the individual by the employer: The
more supervision the employer has, the more likely the relationship is
2. The Ownership of tools, chance of profit, and the risk of loss from
performance of the requested service: Sharing profits and losses and the
ownership of tools are indicative of an independent contractor.
3. The Degree of Integration: The Nature of the work being performed is
considered in the relation to business itself. – Is it “integral” or “adjunct” –
The more work is integrated into the company’s activities the more likely
you are an employee.
Implications of Employee Relationship:
Employees have certain rights and benefits, such as paid holidays and paid
overtime. And employers have certain obligations like the deduction of income
taxes and employment insurance premiums.
- By making the mistake of assuming someone thinks they are an
independent contractor, but they are not, can have bad outcome.
- Therefore, it is smart to establish the employment relationship, before
people begin to give their services.
Risks In Hiring Business Perspective – Hiring someone who is best suited for the job.
Legal Perspective – hiring can reduce the risks associated with employment
1. Vicarious Liability: an employer is liable for the torts of an employee that
are committed in the ordinary course or scope of employment.
The justifications for hold employers guilty:
- Employers have ability to control employees
- Employers benefit from the work of the employees
- Employers are usually in a better position that employees to pay for
- Employers have an incentive to try and prevent torts from occurring.
2. Negligent Hiring: An employer has the duty to use skill and care in hiring
employees. Therefore, if an employee injures another employee, there is
blame on the employer for having hired that person.
The Hiring Process:
- Develop job descriptions
- Advertise the positions
- Have candidates complete an application
- Short list candidates
- Check background
- Interview selected Candidates
All aspects of employment are affected by Human Rights Legislation.
Human Rights Requirements:
Their objective is to provide equal access to employment opportunities. The
Human Rights Commission enforces them.
Prohibited Grounds of Discrimination:
- marital status
- physical or mental disability
- religion of creed
- age Discrimination: the act of treating someone differently on the basis of a
Adverse Effects Discrimination: Discrimination that occurs as a result of a rule
that appears neutral but in its effect is discriminatory. (Required to wear hard
hats, but someone has a religion where they need to wear a turban)
Systemic Discrimination: Discrimination that results from the combined efforts
of many rules, practices and policies.
Defenses to Discrimination
Bona fide Occupational Requirement: A defense that excuses discrimination
of prohibited ground in good faith and for a