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York University (33,691)
ADMS 2610 (409)


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York University
Administrative Studies
ADMS 2610
Robert Levine

ADMS2610 Session 9 Chapter 19 (pg. 352-370) Contract of Employment - Historically o Relationship of Master/Servant  Master and Servant Act of 1867  Adopted in Canada - Common Law o Viewed it as a bargain struck between Master and Servant o Not one of pure contract Nature of the Relationship - Employment Contract o Requires the essential elements of a contract - Issue: Employment relationship or not o Employee or independent contractor - Fourfold Test o (1) Ownership of tools o (2) Control o (3) Chance of profit o (4) Risk of loss o replaced the simple control test o still had limitations so they added the Organization Test - Organization Test o A test for employment based upon an examination of the services in relation to the business itself  Look at services of employee  Are they an integral part of the business or something adjunct or accessory to normal business - Independent Contractor – Controls: o Initiative to do work o Manner in which the work is done o Does the independent contractor employ others?  Indication one is not an employee - Checklist of Employment Factors o Fourfold Test  Degree of control (high)  Ownership of tools (low)  Chance of Profit (low)  Risk of loss (low) o OR  Overall integral part of business (high) o If these tests are not met, then the person may be an independent contractor - Significance o Employee entitled to rights under law and benefits which independent contract is not Form of the Contract - Characteristics o Need not be in writing to be enforceable o May need to be in writing under Statute of Frauds  If run for a fixed term for more than one year  Informal evidence is allowed to prove the contract  Exchange of letters  Corporation books  Many contracts are verbal of indefinite hiring  No requirement for a formal document Duties of the Employer - General Rule o Employers cannot contract out of employment legislation o Most provinces have employment standards legislation which sets out minimum wages, hours of work, overtime, holiday pay, holidays - Two forms of Law o (1) Physical Aspect  health and safety o (2) Employment Contract  employment standards Occupational Health and Safety - Health and Safety Legislation o Provision of safety equipment when hazards associated with the job o Failure allows employee to refuse work until such equipment is provided o Equipment to train employees in use of such equipment o Legislation imposes stiff penalties for violations  Personal fines for supervisory staff who commit violations o Criminal charges can also exist for violations Employment Standards Legislation - Employment Standards o Sets forth the minimum requirements of employers o Parties free to negotiate more favorable terms  Higher pay, more holidays - General Terms (Found in most standards legislation) o Minimum wage o Hours of work o Overtime pay o Vacation o Vacation pay o Holidays o Termination notice or pay in lieu o Leaves of absence Human Rights Legislation - Purpose: to prevent discrimination in hiring or treatment of employees o Generally cannot discriminate based on a person’s race, creed, colour, place of origin, nationality, sex, age, and in some cases physical disabilities, or past criminal record - Duty to Accommodate o The obligation of an employer to adjust work for an employee with a recognized disability o Bona Fide Occupational Requirement (BFOR)  Can discriminate in hiring process if one can establish BFOR for the position  Must establish requirement is reasonable and necessary in order to perform the work and complete the task  Must be done in good faith by the employer o Age Discrimination and Mandatory Retirement  Several provinces have amended legislation to eliminate the right to retire employees when they reach age 65  Can still terminate for other causes of for (BFOR)  Termination solely on age is discrimination o Workplace Discrimination  Right of employee to have a discrimination work free environment  Employers must control discrimination by employees against other employees o Pay Equity Legislation  Cannot pay female employees lower wage than male employees for the same job  Some provinces go a step further and provide eq
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