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Final

Law 2101 Final: Law 2101 - Employment Law Exam Review Package


Department
Law
Course Code
Law 2101
Professor
Mysty Sybil Clapton
Study Guide
Final

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Law 2101 - Exam 2, Part 6
Employment Law
Ontario Employment Standards Act, 2000
- Section 5.0
o (1) no employer or agent of an employer shall contract our or waive an
employment standard as a void
o (2) If one of more provisions in an employment contract directly relate to the
same subject matter the one that provides the greater benefit to the
employee trumps
- Section 5.1
o (1) If you have an employee, you must treat them as one in full
o (2) If there is a issue aout a eployee’s title, urde of proof = eployer
(alleged)
o This section is mainly responsible for ensuring employers classify their
employees / independent contractors appropriately, and give them the
appropriate care
- Section 54
o No employer will terminate an employee that has worked for 3+ months unless
the employer has:
a) Given the employee written notice (section 57/58)
b) Complied with section 61
- Section 55
o Prescribed employees are not entitled to notice of termination / termination pay
- Section 57
o Notice under section 54 will be given:
a) At least 1 week before termination employment < 1 year
b) At least 2 weeks before termination 1 year < employment < 3 years
c) At least 3 weeks before termination 3 years < employment < 4 years
d) At least 8 weeks before termination employment > 8 years
***NOTE: ONLY COURTS AWARD REASONABLE NOTICE UNDER LEGISLATION = ESA NOTICE
- Section 61
o (1) an employer may terminate employment without notice / with less notice if
they offer termination lump sum = amount the employee is entitled to receive
- Section 64
o (1) an employer will be required to pay severance pay if employee was employed
for 5+ years and:
a) if they are one of 50+ employees who have had their employment
severed within a 6 month period or:
b) the employer has a payroll of $2.5M+
- Section 65
o Severance is calculated by multiplying eployee’s ages for a regular eek y:
a) The # of years of employment completed +
b) The # of months of employment not include in clause (a) / 12
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Introduction
- Employment Law vs. Labour Law
- Laws concerning the individual contract of the employment
- Labour law is a unionized environment, relationship between a union that negotiates on
behalf of employees (collective agreements)
- Employment law is an individual employment relationship
- Sources of employment law
- Who is an employee?
- What’s distitie aout the otrat of eployet
- Courts are mindful of the fact that the employment relationship is hierarchical
o Employer has higher control
- Being an employee is the gateway to many benefits
o Ex: independent = less then minimum wage, no vacation pays, no dismissal
notice, etc.
- Courts typically agree with the employees!
Employees Defined
- No universal test to solve this question
- Ask yourself: is the person who has been engaged to perform the services doing it as a
person in business or as their own account?
Determining if you are an Employee
- The leel of otrol the eployer has oer the orker’s atiities
- Whether the worker provides his or her own equipment
- Whether the worker hires his or her own helpers
- The degree of financial risk taken by the worker
- The degree of responsibility for investment and management held by the worker
- The orker’s opportuity for profit i the perforae of his or her tasks
Factors that Suggest the Worker is an Employee
Factors that Suggest the Worker is an Independent Contractor
The company sets working hours and assigns work
The worker has considerable discretion over when and how to
perform work
The company owns the tools needed to do the job
The worker owns the tools needed to do the job
The company controls how the work is done and
closely supervises
The worker receives little direct supervision by the company
The ustoers/liets are the opay’s
The worker has a variety of customers/clients
The worker works exclusively for the company
The worker advertises his or her services on the open market
The ork is perfored at the opay’s preises
The worker has his or her own office and pays own expenses
The worker has no personal assets invested in the
company
The worker has invested his or her own money in the business,
so is at risk of loss but could earn profit
The worker must perform assigned tasks himself or
herself
The worker can hire others to perform work
Regular employee deductions are made from pay
The worker issues invoices to the company, no employee
deductions are made
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Steps for Calculating Severance Pay
1. Calculate wages for a regular work week
2. Determine number of years of employment completed (full years)
3. Divide the # of complete months employed in the incomplete year by 12
4. Add the number from steps 2 and 3
5. Multiply result of step 1 by step 4
**The number that you get is the total amount that the dismissed employee is entitled to!!
**Severance pay is any ADDITIONAL payment you are entitled to
Wrongful Dismissal
- At common law, a contract of employment of indefinite duration is presumed to be
terminable by either party, in the absence of just cause, only upon reasonable notice
o Fidig of isodut itself is’t just ause must be impossible to reconcile
o Dishoesty does’t autoatially ea just ause
- An employer can always dismiss an employee as long as they give sufficient notice and
as long as it is not discriminatory
o With unions - they must have a reason
- Can complain to the ministry of labor if your rights have been violated a tribunal will
then occur
o Otherwise, People go to court at common law if they have the resources the
payout will probably be higher
- You are saying that your employer breached the contract (at common law)
- Examples of being wrongful:
o Wrongful part is that you were dismissed in absence of just cause, without
reasonable notice
o Do’t atually hae to hae a legitiate reaso – you just a’t be discriminatory
o Firing someone without sufficient notice
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