Business Law Chapter 10.docx

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Western University
Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Business Law Chapter 10 Employment Law Part 1 – Assume no union involved  What is Employment? o Do we have employment relationship? If we have an employment relationship, is that person in a union? And if we have that, what might be the potential remedies? o Compare employee with agent and independent contractor  If not an employee, may be an independent agent or independent contractor  Independent contractor – still a contractual relationship is present o Control test- Degree of control exercised over an employee is greater than over an independent contractor  Hours of work, boss, etc. more control exercised over employees o Organization test – Is person an essential part of employer’s organization  The more key player a person is to the organization, the more likely it is an employee  Although an employer may have wanted someone to be an independent contractor, using these two tests, the court might conclude it is an employee instead  Law of Master and Servant o Obligations of employee  Competent  Honest and Loyalty  Punctuality  Act in Employer’s best interests  Fiduciary obligations – highest duty you can owe someone (senior level employee, agent (not every employee is an agent, but an agent might be an employee)  Termination o Where no just cause, reasonable notice of termination is required of both employer and employee o If no just cause, employer is required to give reasonable notice or pay in lieu of notice  May dismiss an employee with notice for any reason unless it violates human rights legislation o Employee (non-union environment) – can dismiss an employee for any reason, but must give either an adequate amount of money or an adequate amount of notice o Employer has two choices: To end the employment relationship now and give a pay (few months) or give a reasonable notice  Just cause o Just cause dismissal requires no notice o Dismissal without notice must be based on employee wrongdoing or a failure to perform the job  There was a contract. Valid offer and acceptance. Implied term – don’t steal. Baba breached the contract by stealing. She breaches a condition, so the innocent party (employer) can accept the breach of condition or stop doing their conditions under the contract (stop paying and providing job). The employer does not owe Baba any money – no damages because Baba breached the contract. If anything, employer might choose to sue for money stolen under criminal law. o In a just cause situation, you don’t have to pay in lieu of notice or give reasonable notice  The employee has to do something to absolutely breach the condition of the contract  Reasonable Notice o Reasonable notice - legislation sets minimum standard o In setting reasonable notice, courts consider:  Length of service  Type of job  Age of employee  Qualifications  Availability of similar employment  Bad-faith conduct o An employee discharged without adequate notice can sue for wrongful dismissal (only for employees, not agents and independent contractors- but these two can sue for breach of contract) o An employee can leave without notice when required to work in dangerous conditions or when work involves immoral or illegal activities o Judges want to put people back to the position they would be in if the contract wasn’t breached o You have to mitigate your losses – find another job o If they are making comparable salary in the new job, employer doesn’t have to pay the lieu o If there is a discrepancy in the salary of the new job, employer has to pay the difference  Constructive Dismissal o Employment contract may be breached when nature of job changes or working conditions become intolerable  The employee complains that they didn’t get fired, they might as well have though, because the nature of job, salary, etc. are changed so much that it is practically a new job  The employee should quickly raise the issue – or else others might consider you’ve accepted it o Compensation based on reasonable notice, lost benefits and pension rights  Employee must mitigate losses  Employment Standards o Statutes designed to protect employees by setting minimum standards for:  wages  hours of work, overtime, and rest periods  Vacation and holiday entitlements  Maternity and parental leave  Termination and severance pay  Human Rights Legislation o Prevent discrimination in hiring and employment practices o Federal and Provincial Codes must be consistent with Charter o Issues relate to: harassment, disabled workers, pay o You as the employer have a duty to accommodate up to the point of undue hardships – such as a person who has a religion that prevents a person from working during the weekend – possibly changing the schedule, etc. Or having a child tha
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