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employment law midterm notes.docx

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York University
Human Resources Management
HRM 3420
Chris Sweeney

Chapter 1 Statute law - a law passed by the federal or provincial government. Can sometimes be referred to as legislation or acts.  Employment statutes are usually passed because the government decides that employee's require protections or rights beyond those that currently exist.  New legislative requirements also lead to demographic shifts  Statute's first take the form of a written bill (public, private, and private member) and must pass 3 readings in the house of commons and be passed by the senate to become a federal statute.  Federal government has 10% authority over employees in canada (banks, airlines, etc) the rest is provincial. Key Ontario employment Statutes  The employment standards act, 2000 - minimum rights and standards for employee's  The human Rights Code - preventing and remedying discrimination on prohibited grounds  The Labour relations act, 1995 - the rights of employee's to unionize and collectively bargain  The occupational health and safety acts (OHSA) - requirements of a safe workplace  The Workplace Safety and Insurance act, 1997 - (formerly work comp) compensation for work related injuries.  The Pay Equity Act - addresses the issue of gender discrimination in compensation Common Law - the part of the law that has developed over the years through court decisions and applied where there is no statute covering that particular area.  Pyramid of law - constitution law (top), statute law, case or common law  under common law, cases are decided by judges on the basis of precedent, and decisions made by higher courts are binding to lower courts (this principle is called Stare Decisis)  lower courts can make a different decision if the case brought forward is proven to be distinguishable and different from any other case in the past.  higher courts can expand boundaries of previous rulings if it believes the case no longer reflects social norms or economic realities. Branches of the Common Law 1. Contract Law - Fundamental to employee law because the legal relationship between an employer and a non union employee is contractual.  determines whether an employee/employer relationship exists and the boundaries of it. 2. Tort Law - a wrong for which there is a legal remedy. Tort law is a branch of civil law (non criminal law) and covers wrongs and damages that one person or company causes to another, independent of any contractual relationship between them.  to establish a tort, plaintiff must show 1) the defendant owed the plaintiff a duty of care 2) the defendant breached the duty 3)the plaintiff suffered foreseeable damages as a result. Judicial Framework 1) Supreme court of Canada 2) Federal Court of Appeal 3) provincial courts ( Superior court of justice, Ontario court of justice, Ontario court of appeal, etc) Chapter 3 - common law issues Areas of Common Law Liability 1. Misrepresentation by Job Candidates - if a false statement related to the qualifications or work experience has a significant impact on the hiring decision, an employer can terminate an employee. (refer to case of Cornell vs. Rogers Cablesystems Inc.) 2. Wrongful Hiring: negligent Misrepresentation - the employer has an obligation to ensure that material statements made during the recruitment process are accurate (refer to queen vs. cognos) 3. Inducement (aggressive recruiting) - this tort occurs when an employee is lured from their current position through aggressive recruiting or inflated promises (refer to egan vs. alcatel) 4.Restrictive Covenants - Clauses that protect an employer's business interests by restricting what an employee can do during, and especially after employment. there are 3 types 1. Non disclosure clauses - prevent employee from using and disclosing confidential information 2. Non solicitation clauses - prevent employee from soliciting customers clients, or employee's 3. Non competition clauses - prevent departing employee from competing with employer 5.Anticipatory Breach of Contract - when one party rejects the employment contract , through either it's statements or its conduct, before employment begins.  to be successful in this action, the employer must show an offer was made, an acceptance, the employee repudiated the contract, and the employee suffered damages as a result. 6. Background Checking: Negligent Hiring - the cost of a bad hire can include potential liability for negligent hiring if that employee later causes forseeable harm to a 3rd party (refer to downey case)  Standard of care - the level of diligence one is expect to exercise. Independent Contractor vs. Employees obligations that employers have to employee's but not independent contractors  Providing statutory benefits  Paying premiums for workplace health and safety insurance  providing reasonable notice of termination or pay in lieu  Remitting appropriate health and income taxes, and contributing to and remitting Canada Pension Plan and employment insurance premiums
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