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HRM 3420 (16)
Midterm

Employment Law Midterm Review

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Department
Human Resources Management
Course
HRM 3420
Professor
Chris Sweeney
Semester
Summer

Description
Midterm Review Explain the branches of the common law that affect employment The two branches of common law that affect employment are contract law and tort law. Contract Law - Fundamental to employment law because the legal relationship between an employer and a non-union employee is contractual - General principles of contract law determines whether an employee-employer relationship exists and what remedies apply to a breach of the employment agreement - All employment contracts, whether written or oral (unless the parties expressly agree otherwise), contain an implied term that an employee is entitled to reasonable notice of dismissal, or pay in lieu of notice, unless the dismissal is for just cause. o Employer must provide advance notice of dismissal or pay instead of notice. o Economic necessity does not relieve the employer of this obligation o For example - In a wrongful dismissal action, damages are awarded to reflect the wages and benefits the employee would have received had the employer provided reasonable notice of termination. - Three elements are needed in order to have a contract 1. Offer 2. Acceptance 3. Consideration - Signing a contract must be voluntary or intentional. The parties signing the contract must be at the age of majority and must have the mental capacity to understand the significance of the contract and the items that are being dealt with in the contract. Also, they must be able to understand the legal ramifications that could come if the contract is breached. Tort Law - A wrong for which there is a legal remedy - A branch of civil law (non-criminal law) - Covers wrongs and damages that one person or company causes to another independent of any contractual relationship between them - Can be either deliberate or negligent - To establish a negligent tort, the plaintiff must show: 1. The defendant owed the plaintiff a duty of care A legal obligation to take reasonable care in the circumstances. 2. The defendant breached that duty 3. The plaintiff suffered foreseeable damages as a result - Example of a negligent tort: When an employer carelessly misleads a prospective employee about the job during the hiring process and the employee suffers losses as a result of relying on the misrepresentation - Example of deliberate tort: When an employer deliberately provides an unfair and inaccurate employment reference for a former employee Employee can sue employer for committing tort of defamation - Case example Seneca College v. Bhadauria o Bhaduria applied for a job ten times between 19474 and 1978 o She was fully qualified for the job o She was never given an interview o The position was then filled by someone from another background None of the people hired were East Indian or as qualified as she was. o Sued Seneca College for committing tort of discrimination o The Supreme Court of Canada found there was no such thing as a tort of discrimination. o Bhaduria should have filed with the Human Rights Code of Ontario because you have to go under the statute What are the six areas of common-law liability? The six areas of common-law liability are: 1. Misrepresentation by Job Candidates 2. Wrongful Hiring: Negligent Misrepresentation 3. Inducement: Aggressive Recruiting 4. Restrictive Covenants 5. Anticipatory Breach of Contract 6. Background Checking: Negligent Hiring 1. Misrepresentation by Job Candidates Although there is no law that requires job applicants to be honest during the application process, courts have held that misrepresentations made by employees before they are hired, may be grounds for their dismissal, if the misrepresentation deals with their qualifications for the job. For example, if an employee states he or she has a university degree or a certain amount of experience that is directly related to the hiring decision, the employer can terminate the employee as a result of that misstatement. This also applies to misstatements that do not necessarily affect the hiring decision but show a lack of honesty, especially in jobs that require a high level of trust, e.g. police officer or childcare worker. A case that illustrates this issue is Cornell v. Rogers Cablesystems Inc., where the job applicant misled the prospective employer into believing he was still employed by his former employer, even though he had been dismissed. In this case, the court found that dismissal was justified. 2. Wrongful Hiring: Negligent Misrepresentation If an employer makes inaccurate statements during the hiring process, they too can be held legally liable. This happens if the employer makes a misrepresentation that is relied on by the prospective employee and that employee suffers damages due to it. Even if the employer believed the inaccurate statements were true, they still have an obligation to ensure statements made during the hiring process are accurate. Case example: Queen v. Cognos Inc. - Queen was hired interviewed by a company and during the interview he was told by the employer that the job involved a major project that was going to be developed over the next two years and that would be maintained by the individual hired. Although the rep. that was interviewing Queen was fully aware that senior management had notyet approved the funding for the project, he did not advise Queen that the job was depended on the funding. Queen accepted the job and moved his family from Calgary to Ottawa. He signed a contract that stated that he could be terminated from the position with only one month notice. The funding for the project failed to come through and Queen was dismissed from his job. He sued for negligent misrepresentation. The Supreme Court of Canada found that the employer and its representatives breached the duty of care owed to Queen during the hiring process. To come to this conclusion, a four part test must be met: 1) There must be a duty of care employer should have informed Queen of the unstable nature of the senior managements financial commitment to the project 2) The representation must be untrue the employers representative led Queen to believe funding was already in place 3) The party making the representation must have acted negligently the misrepresentation was made even though the employers representative was aware that funding had not been approved. 4) The candidate must have had reliance on the untrue statement and suffers harm Queen relied on the information provided in his decision to take the job and suffered harm when he loses the job and has already quit his previous job and left Calgary The courts awarded Queens $50,000 in damages for loss of income, the cost of obtaining other employment, and the loss incurred on the sale of his Ottawa home and general damages of $5000 for emotional stress. 3. Inducement: Aggressive Recruiting A tort which occurs when an employee is lured from their current position through aggressive recruiting or inflated promises. It requires a significant degree of pursuit, such as repeatedly co
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