AFM 231 – Business Law
Thursday, March 7, 2013
Lecture 15: Employment
Employment vs. labour law
The term ‘labour law’typically refers to a unionised environment.
Stats in Canada show that the majority of public sector employees are unionised and a relatively small proportion of
private workers are unionised.
One reason employees don’t see the need for unions today is because we now have relatively strong labour protection
and workplace safety rules and even minimum wages (sometime read Upton Sinclair, The Jungle (and many others),
to see what an unregulated environment was like).
Employment law refers to the laws (many common law) that apply in general to the employment relationship.
Employee vs. Independent Contractor
Employee works for the employer/business.
Independent Contractor works for themselves and hires out their services to the business.
Why do we need to know the distinction?
From a very practical perspective, if a person is your employee you must make all the mandatory payments etc. (also
have all other legal duties as employer).
From the perspective set out in the text: because you might be responsible for their actions (vicarious liability). See
the Dupois example p. 501 and the Canadian Tire case p. 503.
Key elements of hiring
See text for outline of protocols you should implement.
What may you ask and what must you not ask?
Generally: you may only ask questions that directly relate to the ability of the person to do the job.
You must not take any action, or have any practices that discriminate between job candidates on ‘prohibited’grounds.
See p. 506.
Examples of bona fide occupational requirement
If you are hiring for a call centre that takes calls from X country with Y language, you may ask about fluency in that language.
Or it may require knowledge of the culture or geography of a particular country. But, you may not require the person to have a
particular ethnic background or actually come from that country.
Systemic discrimination: e.g. Meiorin Case (508) or pilots in the past. The latter had to be a certain height etc. Typically
Duty to accommodate
This can arise at hiring. It more commonly arises once the person is on the job.
The person because, e.g., of illness or long term disability, is not able to perform the tasks completely.
This is where the expression ‘undue hardship for the employer’comes in.
Hard balancing act. However, for an employer as large as the University, for example, the expectations are reasonably high that
it should accommodate by finding alternative ways for the person to work.
See p. 509 for factors that impact these decisions.
Statute laws that apply to employment relations
In addition to the provisions that any contract of employment should include (Figure 20.2) there is a range of legislation that
applies to the employment relationship.
See pp. 515-521.