ADMS 2610 Study Guide - Fiduciary, Absenteeism, Wrongful Dismissal
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Copyright: Robert Levine
SOME NOTES ON EMPLOYMENT LAW
NOTE: What follows is in addition to the materials in your text.
Employment law deals with the relationship between an employer and an
employee. It is derived form the common law relating to master and servant, but has
been added to by means of statutory changes which also affect it.
The relationship is one of contract. In many cases the contract is oral, while in
others it is written. In fact, by virtue of the Statute of Frauds in Ontario, it must be
written for employment contracts which run for a fixed term of more than a year or as the
case law puts it, contracts which exceed a year and a day. Being a contract, the first thing
any prudent lawyer or student of law should do when a problem occurs in the
employer/employee relationship is to look to the contract which may very well contain
terms which relate to or govern such matters as
1. the parties,
2. the remuneration, (how the employee is paid),
3. length or term of employment,
4. the obligations of the employer and the employee (in the latter case a job
5. what constitutes default under the agreement by the employee, including,
including a definition of just cause and the types of just cause that are applicable;
and any additional acts or omissions of the employee that may result in dismissal.
Generally speaking, depending on the nature of employment, an employment
contract will also contain one or more restrictive covenants such as a
confidentiality or non-disclosure clause and a non-competition clause.
6. Termination for reasons other than 3.
Where there is no real written contract of employment, the terms of employment
are set out in the Ontario Employment Standards Act which sets out the minimum terms
or provisions that apply to all employment contracts. Some of these are:
- 10 sick days a year,
- one weeks wages for every year worked to a maximum of 8 weeks.
- minimum wage
It should be noted that a written employment contract cannot supersede the
Ontario Employment Standards Act unless it goes beyond the Act providing for more
than the Act provides, such as three weeks vacation a year or 2 sick days per month
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Copyright: Robert Levine
Other legislation known as Human Rights legislation has also been passed in
most provinces and prohibits discrimination on the basis of race, creed, colour, place of
origin, nationality, sex, age, physical disability or past criminal record. The Charter of
Human Rights and freedoms also may come into play here. With regard to persons under
a disability, the legislation requires that, when hiring, an employer not discriminate
against a person with a disability, imposing a duty on the employer to accommodate the
person with a disability. For example, if there are no ramps for wheel chairs, the
employer may be required to put them in. This duty can be overcome where the
employer can prove what is called a bona fide occupational requirement (BFOR). The
test for a BFOR or the things that the employer must establish are:
1. that the requirement is reasonable and necessary to perform the work;
2. that it was adopted by the employer in good faith; and
3. that accommodation of the employee with disability would cause undue hardship
on the employer. (Generally, undue hardship boils down to a huge expenditure of
money which the employer cannot afford).
In Ontario there is also Occupational Heath and Safety legislation which deals with
standards and conditions in the workplace and Workers Compensation legislation
which deals with compensating workers for injuries sustained on the job or during
ACCOMMODATION OF AN EMPLOYEE DURING EMPLOYMENT
Where during the course of employment an employee becomes disabled, also
under Human Rights legislation an employer has a mandatory duty to make an effort to
accommodate the employee’s disability in their work assignment, unless doing so would
cause undue hardship on the employer. This duty would appear to supersede any
provision to the contrary in an employment contract.
THE WAYS IN WHICH EMPLOYMENT CAN BE TERMINATED WITHOUT
1. Termination by reason of the expiry of the term of employment. This speaks
for itself and need not be explained.
2. Termination/dismissal for breach of contract: This has to do with conduct of
an employee which is a direct breach of the employment contract and more
particularly a written employment contract between the employee and the
employer. For example, competing with the employer’s business. This is
considered to be a restrictive covenant, and there are others such as a prohibition
against disclosing any information about the business. While dismissal for doing
this might be considered just cause and may even be called just cause in the
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