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BLAW 402 Final Exam December 2013 Marking Key.docx

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Department
Business Law
Course
B LAW402
Professor
Elaine Geddes
Semester
Winter

Description
BLAW 402 Final Exam December 2013 Marking Key General: Generally each point mentioned in the answer key roughly corresponds to one-half point in your mark. This is however, very general and not automatic. I will give marks for overall quality of answer as well and for some things that may not have specifically been in the key but are valid points. I will not give marks for saying the same thing in two different ways. I may not give marks if you directly contradict yourself in the same sentence or paragraph without indicating that these may be two valid alternatives. I sometimes give marks for anything intelligent that you said in commenting on the situation – intelligent being defined as something relevant to the resolution of the situation from a legal perspective. In going through this exam key, please note several things. It is rare for any student to actually answer the questions in exactly the way that I have phrased the answer. Therefore I give points when I think you are close enough. There are many more points listed here than are actually available for the question. In all cases, the maximum number of marks available is the mark total for the question. Checkmarks on the test paper do not necessarily indicate the marks given. They are more for my purposes to keep myself on task. Question One: Maximum points available 25 The employees here are all servants of Natasha which means they are controlled and directed in the work that they do unlike independent contractors who have more freedom of action and exercise more discretion on the job. They are integrated within this work environment and have employment duties that are central to the employer’s business (Organization test). They have little chance of profit or risk of loss, they do not own the tools they need to perform their jobs and they are controlled as to the work they do and how it is done (4-Fold Test). The distinction is important as Natasha as employer is vicariously liable for the wrongful acts of her servants but not for independent contractors. Natasha is also liable to servants for wrongful dismissal if she dismisses them without cause or without notice or pay in lieu of notice. The obligations of a servant to his/her employer are competence, obedience, honesty, and loyalty. The obligations of an employer to their employee are to pay them for their work, abide by all applicable legislation and not to discriminate against them. All of the contracts here appear to be contracts of indefinite hiring as there are no fixed terms or fixed end dates. Therefore all of these employees may be dismissed either with cause or with appropriate notice or pay in lieu of notice. Boris as the manager of the company is aware of the allegations of sexual harassment and he has made no attempt whatsoever to prevent this behaviour or deal with it, or speak to Mick about it and this makes Natasha as owner legally liable for the wrongful behaviour. Where an employee quits in response to a hostile work environment, that employee may be entitled to claim wrongful dismissal as this is constructive dismissal. Notwithstanding that Marianne quit, she can claim damages that are to compensate her for the length of notice period she would have been entitled to her had she been dismissed legally. Sexual harassment may be sufficiently serious to amount to cause to dismiss Mick but in this case, Boris has been tolerating it for so long it would be very difficult to dismiss Mick at this point. Natasha would be required to use warn Mick that his behaviour may have been tolerated to this point but it will be no longer and if he continues to behave in this way he will be fired. Bianca appears to be incompetent but again she has not been previously disciplined and so firing her may not be an option. Employees can be dismissed for cause if the cause is one sufficiently serious wrongful act or a series of smaller wrongful acts. In this case, there needs to be progressive discipline of Bianca so that she is disciplined for her mistakes in progressively more serious ways. If she is unable to meet the required level of competence after warnings, then she can be dismissed for cause. Keith is missing one of the bona fide occupational requirements for his job, which is to say a valid driver’s license. He is not qualified for the job so that could be a ground for dismissing him. The Human Rights Act requires that employers not discriminate against employees for physical or mental disability and this includes a requirement to accommodate employees with disabilities. The requirement to accommodate means that employers need to see if there is a way that an employee can continue to work and the employer can adjust to the disability unless this amounts to undue hardship to the employer. Natasha needs to know what the nature of Keith’s disability is and whether it has anything to do with his loss of his driver’s license. That connection needs to be understood if she dismisses him for not having a driver’s license. Keith obviously cannot continue to drive without a license as this is illegal and could jeopardize Natasha’s insurance which is far too much of a risk to ask her to take. If Keith is the only driver, then asking Natasha to keep him on and attempt to work around his loss of a driver’s license would be an undue hardship as the work would not get done. Fred appears to have been fired for no reason whatsoever as he has been a competent obedient employee and not violated any of the rules of employment. Objecting to a comment about you is not insubordination. Boris has violated some of the most important obligations of en employee, to be loyal and faithful to his employer and to render faithful, honest and loyal service so he could be fired without any notice or pay in lieu of notice. He has exposed Natasha to some serious liabilities in the way he has handled the employees, by tolerating wrongful or even illegal behaviour, and firing people when there is no appropriate case for dismissal. He may have been stealing from her or stealing from clients and this is one form of employer misconduct that never needs to be tolerated by an employer. Natasha can fire him now and then take her time in developing a case that he has been stealing from her because she does not have to prove it now, she simply needs to be able to prove that this cause existed at the time he was fired by the time the case gets to court. In the wrongful dismissal cases, Natasha will be liable for paying damages to the former employees that adequate compensate them for the wrongful dismissal based on the following four factors: Character of employment, age, length of service, and availability of similar employment. Both employees are customer service representatives which is not a high level of employment and they do not appear to have high levels of responsibility or sen
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