AFM231 Lecture Notes - Lecture 15: Workplace Bullying, Labour Law, Canadian Tire
SchoolUniversity of Waterloo
DepartmentAccounting & Financial Management
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.
Workplaces can be dangerous: Total fatalities in the Canadian workplace
3 most dangerous sectors: construction, manufacturing, transportation/storage.
Workplace safety legislation – governs the operation of the workplace.
Workers compensation – provides for injured workers,
Employment standards – governs conditions of employment e.g. hours including overtime (see CIBC case – classes now
certified), minimum wage, vacations, termination, etc.
Preventing harassment, discrimination, pay inequity, privacy.
Workplace bullying and violence
2010, amendments to the Ontario Health and Safety Act.
Address ‘workplace violence’. Extends to any persons with whom the employee may come in contact.
Positive obligation on the employer to engage in risk assessment and take reasonable steps to avoid risk of harm.
Can you test, monitor, and access – ie: email
Basic principle: are any of these actions essential to maintaining a ‘safe’ workplace.
Preventatively: if it is necessary because the risk is great.
Accommodation: as a condition of a return to work for the illness of drug or alcohol addiction (and ability to do job
was previously impaired).
Monitoring: if it is reasonable to avoid e.g. theft – see Eastmond case p. 523.
What about email and internet use?: monitoring to ensure I am doing the job (e.g. playing solitaire all day).
R. v. Cole, 2012 SCC 53.
If it is assumed you will use your work provided technology for work and personal use (and it is exclusively in your
possession), then generally the employer has no right to access your personal materials (unless you leave them e.g. in an
immediately visible location when you give a technician the machine to fix).
If there are reasonable grounds to assume a criminal act, the police should get a warrant.
Termination of employment
Contrast US and Canada: US has employment at will – literally means an employer may terminate employment at any time,
with or without grounds.
In Canada, the contract of employment may be ended:
when the contract comes to an end;
when there is ‘just cause’;
when the employer terminates without cause.
through ‘constructive dismissal’.
Dismissal for Just Cause
Clearly bad behaviour – see pp. 235-9
Critical thing for the manager, document, document, document.
Only for really serious events is prior notice not required.
Dismissal without just cause
Here the employer has an obligation to give notice or pay reasonable compensation in lieu of notice.
The behaviour of the employer is equivalent to dismissing the employee.
For example, they assign them to completely inappropriate work.
Consequence of improper termination
Equivalent to breach of contract – damages.
Both statutory damages and common law.
And remember the duty to mitigate.