Chapter 12 - Employment

Chapter 12 - Employment What is Employment? The Control Test • Traditional method: assess degree of control exercised by person paying for service • Person who is told what to do AND how to do it is an employee • Independent contractor agrees to do a specific job, not to enter a general service relationship • Independent contractor works for himself, while employees work for their employer The Organization Test • When there is little direct control, individual is an integral part of the organization, working only for that company and subject to group control => likely an employee • When person is free to offer services to others and bears risks of profit/loss if work not completed in timely manner => likely an independent contractor • No legislated definition of employment – must turn to precedent • Agents - act on behalf of a principal; can be both independent contractors or employees The Law of Master and Servant • Main responsibility of employer: provide safe workplace and good working conditions, and payment of wages/salary • Obligations of employee: must possess skills claimed and exercise them in reasonably competent and careful manner, follow reasonable orders of employment, treat property of employer carefully, be honest/loyal/courteous, be punctual and work for time specified; may also have fiduciary duty (usually only on senior execs) o Fiduciary duty: act in good faith, make full disclosure, not take corporate opportunities for own benefit • Restrictive covenants must have reasonable time and area, and must be the most appropriate way of protecting the employer’s interests Termination • Can occur by either party giving reasonable notice, paying in lieu of notice, or immediately with just cause • Wrongful dismissal – dismissal without cause and without proper notice  Reasonable Notice • Courts consider length of service, type of job, age of employee, qualifications, availability of similar employment, bad-faith conduct  Just Cause • Includes serious absenteeism, consistent tardiness, open disobedience, habitual negligence, incompetence, harassing other employees, drinking on the job, immoral conduct that reflects poorly on employer • Must ensure accusations are accurate with firm evidence • No requirement to give any notice  Disabled Workers • If serious illness prevents employees from performing their job, can be discharged without notice – frustration of contract • However, must accommodate disabled workers still able to work – does not apply if will cause the employer undue hardship  Disobedience and Incompetence • These actions justify dismissal – employer should inform employees of incompetence  Layoffs • Running out of work or encountering financial difficulties is NOT just cause => reasonable notice is required  Wrongful Leaving • Employees must give reasonable notice to leave, unless there is breach of employment contract  Constructive Dismissal • Employer breaks contract when nature of job is changed without consent, if employee is demoted or terms of employment are changed  Remedies for Wrongful Dismissal • Damages awarded based on what would have been received if proper notice had been given • Employee has obligation to mitigate losses (eg. try find another job) Liability of Employer • Employer is vicariously liable for torts committed by employees while on the job • In BC, owner of motor vehicle is variously liable for torts committed by person driving the vehicle with owner’s consent Legislation  Employment Standards • Notice periods may be set out to be less than common law standard, but must be more than minimum statutory requirement or else will be void and must apply common law notice period • Employment standards legislation controls min. wage, hours of work and overtime, termination, child labour, maternity/parental leave  Termination • Canada Labour Code – termination entitlements determined by length of service  Issue Estoppel • If dismissed employees file a complaint under employment standards legislation and it is found that there was cause for dismissal, may prevent them from suing later on for wrongful dismissal  Complaints  Human Rights • Employers must not discriminate in hiring and employment practices, and also actively ensure basic rights are protected • Employers may also be liable for harassment committed by employees • Reverse discrimination or affirmative action is authorized • Mandatory retirement at 65 is permitted, bu