Canadian Business Law. Employment Law

+class materials, which should be used to complete this assignment

Important I just need the script to make a video. The video I will do myself

Chapter 10, Part 1
Workplace Law
Learning Outcomes
• When you have studied this part of chapter 10, you should be able to:
– Explain the difference between an employee and an independent contractor
– Discuss how the common law affects hiring and other employment decisions
Workplace law
• Common law and statutes
• Common law – non unionized workers
–
Contractual relationship between employee and employer
• Federal and provincial legislation
–
Federal – applies to federally regulated industries
•
–
E.g. airlines, banks, broadcasting
Provincial – most employees; in provincially regulated industries
Independent contractor or employee?
• Independent contractor
–
Self employed
–
Accepts specific projects, often from several businesses
–
Not covered by employment standards legislation
• Employee
–
Under the control and direction of the employer
–
Covered by employment standards legislation
–
Employer withholds income tax, etc.
–
Entitled to wrongful dismissal damages
Independent contractor or employee?
• How do you tell?
– Independent entrepreneur in business for self or under the control or
direction of the hiring organization?
• Courts look at the actual facts
– Does the business control when, where and how work is performed?
– Designation in contract – not decisive
– Courts may recharacterize – significant consequences
Dependent Contractor
• New category – self-employed but economically dependent on a single
employer
– Entitled to wrongful dismissal damages
Common Law
• Hiring
• Employment contracts
• Ending the employment relationship (next presentation)
Hiring
• Honesty in the hiring process
–
Misrepresentation by job candidate – may justify firing if misrepresentation goes the root of the
candidate’s qualifications or suggests dishonesty
–
Misrepresentation by business – legal liability if candidate relies on the statement and suffers
harm
•
–
Employer has obligation to make sure that all material statements made during hiring process are
accurate; if not – negligent misrepresentation
Risk of inducing breach of contract
Hiring due diligence
• Employers should
–
Be aware of restrictive covenants
•
–
Clause in employment contract that restricts the employee’s activities, during and after employment e.g.
prevents employee from competing, soliciting customers, disclosing info
Check references
•
No general obligation to check references but risk of liability for negligent hiring
–
–
Failure to check references for jobs that could expose others to harm
Positions of trust- high standard of care in checking references
Employment Contracts
• Non-unionized employees
–
Contract between employee and employer
–
Range of formality – informal letter to formal agreement
–
Key terms
•
Termination clause – sets out amount of termination notice that must be provided
•
If not included: employee who is dismissed without just cause is entitled to:
– Reasonable notice of termination OR
– Pay in lieu of notice
Employment Contracts – Key Terms
• Fixed term contracts
–
Still employees, but employer does not need to give notice of termination at end of term (as long as term is
under 12 months)
–
Still should include a termination clause to deal with early termination; if not, employer may have to pay
employee for the entire term
• Probationary period
–
Allows employer to monitor employee’s suitability, and fire without notice
–
Employment Standards Act, 2000 – statutory notice of termination is required after 3 months
Employment Contracts – Key Terms
• Restrictive covenants
–
–
–
Non-competition clause
•
Restricts ability to work for former employer’s competitors after employment ends
•
Courts are reluctant to enforce; employer must prove restriction is reasonable in scope and absolutely necessary
to protect legitimate business interests, and that other clauses are not adequate
Non solicitation clause
•
Restricts ability to solicit customers or employees of former employer
•
Courts may also be reluctant to enforce
Non-disclosure clause
•
Restrict ability to use former employer’s confidential information
•
Often enforced
Enforceability of employment contracts
• Lack of consideration
–
Change of terms after employment starts
•
Employer must provide new consideration (e.g. bonus, raise)
• Failure to meet minimum statutory standards
–
Terms of the employment contract must be at least as favourable as minimum standards set by legislation
•
If not, the clause is void and unenforceable; court will apply common law (usually more favourable to employee)
•
E.g. Wood v. Fred Dealey Imports ( p. 346)
•
Waksdale case – entire termination clause will be void
•
Tips: p. 347
Any questions?
Chapter 10, Part 2
Workplace Law
(Pgs 347 – 359)
Learning Outcomes
• When you have studied this material, you will be able to:
– Analyze the common law that governs the dismissal of non-unionized
employees
Ending the employment relationship
• Resignation
–
–
Employee must provide notice to employer (but rarely enforced)
Quit or fired?
•
Resignation must be voluntary and intentional
•
If quit, no obligation on employer to provide notice/pay
•
If fired without just cause, employer must provide notice/pay
•
If employer gives “choice” – courts will likely find that resignation was not voluntary
•
If employee resigns because employer has changed a fundamental term of the contract – may be
constructive dismissal
Ending the employment relationship
• Retirement
– Human Rights Code – no mandatory retirement
• Age (over 18) is a prohibited ground; mandatory retirement is discrimination based on age
Ending the employment relationship
• Termination
– Generally, employer can dismiss an employee without just cause BUT must give
notice/pay in lieu
– Employer can dismiss for cause; does not need to give notice/pay in lieu
Ending the employment relationship
• Termination for (just) cause – no notice requirement
– When employee’s conduct fundamentally breaches the employment contract (see
table 10.1 for examples)
• Dishonesty, insubordination, disobedience, sexual harassment, intoxication
– Serious incidents – one time may amount to cause
– Generally – need more than one incident
• Incompetence – difficult to prove that it amounts to just cause
– Performance below objective standard; standard must be reasonable; problem is caused by
employee ( not other factors like lack of training)
– Need consistent, objective performance appraisal process; documented performance reviews
– Employer should be able to show that they took all reasonable steps to help employee improve,
gave employee time to improve
Ending the employment relationship
• Termination for cause
– Progressive discipline
• Gradually increasing levels of discipline
• Employer should document, give employee opportunity to respond
• Use of progressive discipline prevents employee from arguing that employer
condoned misconduct i.e. gave impression that misconduct was not a
problem
Ending the employment relationship
• Termination without cause
– Employer must provide notice or pay in lieu (severance package) ; if not, wrongful
dismissal
• Employer’s choice between notice or pay
– Amount of notice/pay is determined by:
• Employment contract (assuming provision is enforceable)
• If no enforceable termination clause in contract, common law “reasonable notice” ( can
override by contract)
• Employment Standards Act – minimum notice that can not be overidden by contract
Ending the employment relationship
• Termination without cause
– Employee can enforce rights through wrongful dismissal process OR claim with
Ministry of Labour ( not both in Ontario)
– Common law reasonable notice
• Amount depends on circumstances: length of service, age, job, salary and availability of
similar employment
• Fairly long period
• Courts will also consider whether plaintiff has fulfilled duty to mitigate damages
– Must take all reasonable steps to find new job during notice period; if not – court will award less
– New job– deduct earnings during notice period from wrongful dismissal award
Ending the employment relationship
• Wrongful dismissal damages
–
When employer has not provided adequate notice
–
Damages: amount equal to the wages and benefits the employer would have owed during the
notice period plus court costs
–
Plaintiff can ask for extra damages (aggravated damages) if the manner in which they were
fired has caused additional actual losses
–
Punitive damages also possible (but rare)
–
E.g. Boucher v. Walmart ( p. 355)
Ending the employment relationship
• Constructive dismissal
– Occurs when:
• Employer makes continued employment intolerable for the employee, and
employee is justified in leaving OR
• Employer makes a fundamental change to the employment contract e.g.
change in working conditions or job responsibilities
– Employee is entitled to reasonable notice
Ending the employment relationship
• Right to reinstatement
–
Right to get job back
–
Not available at common law
• References
–
An employer who provides an honest reference is not liable for defamation – views honestly
held, based on reasonable grounds, without malice
–
No legal obligation to provide a reference for a dismissed employee (but could increase
wrongful dismissal damages)
–
Risk of providing too good a reference –negligent misrepresentation claim by new employer
Covid Issues
• Mandatory vaccination policies
–
Policies generally accepted as reasonable; employer has a duty to provide a safe workplace BUT policy must
be applied in a reasonable manner
•
Less likely to be upheld in low-risk environment
•
Employers may need to provide alternatives e.g. regular testing
•
Human Right Code issues?
• Impact on reasonable notice periods
–
If pandemic makes it harder to find a new job, does this affect length of the notice period?
• Return to work policies
Any questions?
Chapter 10, Part 3
Workplace Law
*pgs. 359 – 398)
Learning Outcomes
• When you have studied this material, you will be able to:
– Describe the obligations of an employer and the rights of an employee under:
• Human rights legislation
• Employment standards, workplace safety and insurance, and health and safety legislation
– Analyze equity requirements in the workplace
– Discuss privacy issues in the workplace
– Describe a business’ obligations in relation to unionized (or unionizing) employees
Statute Law
• Human Rights Code
• Employment Standards Act, 2000
• Occupational Health and Safety Act
• Workplace Safety and Insurance Act, 1997
• Ontario Pay Equity Act
• Personal Information Protection and Electronic Documents Act (PIPEDA)
• Labour Relations Act, 1995
Human Rights
• Ontario Human Rights Code
–
Prohibits workplace discrimination and harassment on specified grounds
–
Discrimination – negative or different treatment of a person or group
–
Prohibited (protected) grounds include:
•
race, colour, ethnic origin, place of origin, creed
•
sex ( includes pregnancy), sexual orientation, gender expression
•
age (over 18), marital status, family status
•
disability (broad definition)
Human Rights
• If discrimination on a prohibited ground played any part in an employment
decision — violation
• Intention to discriminate is not necessary– if the effect is discriminatory, it
is a violation
• Exceptions: counsellors hired by a faith-based organization, nepotism
policy
Human Rights
• Adverse impact discrimination
–
Workplace policy that unintentionally affects certain groups in a negative way is discriminatory
UNLESS it is a bona fide occupational requirement (BFOR)
•
It is a legitimate job requirement that can not be modified without imposing a very severe burden on the
employer
–
•
Must be: Rationally connected to job performance, Adopted in good faith, and Reasonably necessary to
accomplish a legitimate work-related purpose
Also, employer must show that it cannot accommodate a person who lacks the requirement without
undue hardship
–
–
–
Accommodate – make changes that allow a person to do a job
Undue hardship – very severe negative impact
E.g. CUPE v. TDSB (pg. 363)
Human Rights
• Undue hardship
– Cost of accommodating an employee substantially affects the economic
health of the business or produces a substantial health and safety risk
that outweighs the benefit of accommodation
Human Rights
• Common situations requiring accommodation
–
Disability
•
•
•
–
Religion (“creed”)
•
–
–
Can only require an employee to perform duties essential to the job; even then, must accommodate to
the point of undue hardship
Accessibility for Ontarians with Disabilities Act
Note; disability includes drug and alcohol abuse; Chopra v. Syncrude
Affected by dress codes, break policies, work schedules, religious leave
Pregnancy
Family caregiving obligations
•
Law is evolving, re: when there is a duty to accommodate
Human Rights
• Application to employment:
–
Recruitment
•
Advertising, application forms
–
–
•
Interviews
–
–
•
Can not advertise in a discriminatory fashion
Applications – only name, address, education, employment history
» See table 10.2 (p. 370)
Can not ask interview questions that deal with prohibited grounds, unless they relate to one of the
exceptions or a BFOR
Re BFOR : only ask if related to candidate’s ability to perform the essential duties AND to the nature of any
necessary accommodation
Conditional offer of employment
Human Rights
• The workplace
–
All decisions must be made without discriminating
• Drug and alcohol testing
–
Severely restricted
•
•
•
No testing during initial screening of applicants; may not be allowed after conditional offer
On-the job testing – allowed in limited circumstances
– When employee is involved in a workplace accident that suggests impairment
– As part of a rehabilitation plan
– When employer has reasonable grounds for believing that an employee is impaired
Random testing
– May be justified in safety-sensitive jobs where employer can show that impairment is a problem in the workplace
– More acceptable for alcohol
Human Rights
• Harassment
–
Every employer must provide a safe working environment that is free from discrimination,
violence, bullying & harassment
–
Course of vexatious comment or conduct that is known or ought reasonably to be known to be
unwelcome
•
Sexual harassment
•
Poisoned work environment
•
Vicarious liability for employers
•
Tips: p. 375
Human Rights
• Enforcement
– File complaint with Ontario Human Rights Tribunal (except for unionized
workplaces)
– Reprisals by employer are prohibited
– Remedies include:
• Compensation – lost earnings, injury to dignity, legal costs
• Hire/reinstate employee
• Require employer to train staff, implement policies
Employment Standards
• Employment Standards Act , 2000
–
Minimum standards; employers can provide for more, but not less
–
Standards generally apply to permanent and temporary, full time and part time employees
–
Not all provisions apply to managers, supervisors (overtime, hours of work)
–
See table 10.3
Employment Standards
• Termination notice
– Notice or pay in lieu required unless:
• Employee fired for willful misconduct, disobedience or willful neglect of duty
• Employee has refused reasonable alternative employment
• Employee is on temporary layoff
– Notice based on length of service; 1 week per year, max 8 weeks
– Payment must include benefits
Employment Standards
• Mass layoffs
–
Longer notice if employer lays off 50 or more employees in 4 consecutive weeks
• Severance pay
–
Additional entitlement – one payment based on years of employment (one week’s pay for each
year, up to 26 weeks) when:
•
Employee worked for employer for five or more years AND
•
Employer has Ontario payroll of at least 2.5 million or terminated 50 or more employees in six months
because closing all/part of business
•
Exceptions – like termination pay
Termination provisions and the ESA
• Waksdale case
–
Employment contract with a two-part termination clause
•
Without cause – more than ESA minimum
•
With cause – no termination payment (including ESA) – contradicts ESA because “Without cause” is a lower
standard than the ESA “willful misconduct etc”
•
All held unenforceable – even though the with cause portion provided for more than the statutory minimum
•
Employers need to review their contracts to make sure that no part of their termination clauses violate the ESA
termination provisions.
•
https://www.bennettjones.com/Blogs-Section/Ontario-Employers-Need-to-Review-their-Employment-Agreementsthe-Waksdale-Decision-is-Here-to-Stay
Employment Standards
• Enforcement
– Employee files claim
– Employment standards officer can order;
• Reinstatement
• Compensation
Recent Developments
• Disconnect from work policy
– https://www.ontario.ca/document/your-guide-employment-standards-act-0/writtenpolicy-disconnecting-from-work
– ESA now requires employers to have a policy on disconnecting from work
– This does not require employers to give new rights to employees
Recent Developments
• Monitoring online activities of remote employees
– https://www.cbc.ca/news/business/canadians-workers-employers-tracking1.6612228
– ESA now requires employers to have a policy on electronic monitoring; no new
employee rights though
Recent Developments
• Under ESA, non competition clauses are prohibited after October 25, 2021
–
Some exceptions
–
Does not affect earlier contracts but common law may still make these unenforceable
–
https://www.ontario.ca/document/your-guide-employment-standards-act-0/non-competeagreements
Recent Developments
• Digital Platform Workers’ Rights Act
–
https://www.cbc.ca/news/canada/toronto/ontario-legislation-gig-workers-minimum-wage1.6366844
–
Not yet in force
–
For drive hailing, delivery drivers
–
Minimum wage, right to keep tips, other rights
–
Does not address employee vs independent contractor status
Health and Safety
• Occupational Health and Safety Act (OHSA)
– Goal: protect from work related health and safety hazards
– Applies to all employees and independent contractors
– Based on idea of joint responsibility for workplace safety
OHSA
• Workers rights:
– Participation in workplace health and safety
• Joint health and safety committee
– Right to refuse unsafe work
– Right to stop unsafe work
– Right to know about workplace hazards
• WHMIS requirements
OHSA
• Employers must report accidents to Ministry of Labour
• Employers must address workplace violence and harassment
–
Includes: policies, training, precautions to protect workers, investigating incidents
–
Tips on p. 388
• Enforcement
–
Strict liability offences, due diligence defence
•
–
Fines, imprisonment
Criminal Code provisions
Workplace Safety and Insurance Act (WSIA)
•
•
•
•
Employer-funded insurance system
Compensates workers for injuries or diseases that arise “out of and in the course of employment”
Eliminates lawsuits by workers
Workers are encouraged to return to work as soon as possible, employers are required to cooperate
with injured workers and facilitate return to work
• Compensates for:
–
–
–
–
–
Health care costs
Loss of earnings
Non-economic losses
Loss of retirement benefits
Death and survivor benefits
Workplace Safety and Insurance Act (WSIA)
• Funding:
– Employers pay premiums, based on industry class, rate group
• Premium is a percentage of total payroll (maximum amount per worker)
– Experience ratings – refund or surcharge on premium, depending on how claims
for that employer compare to other employers in rate group
Equity in the Workplace
• Employment Standards Act, 2000 – Ontario
– Equal pay for equal work
• Substantially similar work
Equity in the Workplace
• Pay Equity Act – Ontario
– Equal pay for work of equal value
• Jobs that have equal value in the workplace must be paid the same
• Intended to reduce gender pay gap, address underpaid, traditionally female jobs
• Applies to Ontario public sector, provincially regulated private sector where there are 10 or
more employees
Equity in the Workplace
• Employment Equity Act – Federal
–
Encourage fair hiring and promotion for historically disadvantaged groups
–
Applies only to federally regulated businesses with 100 or more employees; no comparable
Ontario statute
–
Requires employers to implement employment equity programs to underrepresentation and
lower job status of:
•
Women, visible minorities, people with disabilities, Indigenous people
Privacy in the Workplace
• PIPEDA – federal statute
–
–
Applies to federally regulated employers; Does not apply to provincially regulated
employers(but many use as best practices)
Applies fair information principles to collection, use, disclosure and protection of personal
information
•
basic principle: consent before collecting, using, disclosing personal info
• Ontario
–
–
Disclosure of personal information relating to a prohibited ground of discrimination can be the
subject of a human rights complaint
Common law – recently recognized tort of intrusion upon seclusion
•
Jones v. Tsige
The Unionized Workplace
• Labour relations Act, 1995 – Ontario
– Allows most employees to form unions
– Process for forming a union, rules for collective bargaining
– Once a collective agreement is negotiated and ratified, it governs the employeremployee relationship
The Unionized Workplace
• Union organizing
– Employers may not interfere with employees’ right to join a union
• Prohibits unfair labour practices by employer
• Prohibits employers from disciplining, firing or harassing employees who join a union
– Bargaining unit (group of employees that the union represents) applies for
certification by OLRB( must have support of majority of workers); when certified,
the union has the exclusive right to bargain with the employer on behalf of all the
employees in the bargaining unit
The Unionized Workplace
• Negotiating a collective agreement
–
Duty to bargain in good faith, use every reasonable effort to reach a collective agreement
–
First collective agreement – if unable to reach agreement, OLRB will provide binding arbitration
• Administration of a collective agreement
–
Dispute under collective agreement – grievance; dispute resolution process
–
Strike and lockouts
•
Refusal to work/ allow employees to work
•
Only allowed after collective agreement has expired and other procedural requirements met
Any questions?
EXERCISE #5 EMPLOYMENT LAW – ASYNCHRONOUS
INSTRUCTIONS
In a 5-7 minute video please answer the questions below. Please note to answer the
questions you need to read the 3 ppt material. (2 marks for each question, 2 marks for
your presentation – see rubric at end of these instructions).
1. Give an example of discrimination based on religion (cannot be an example used
in class), explain why it is discrimination, and explain why we cannot discriminate
based upon religion.
2. Give an example of discrimination based upon disability (cannot be an example
used in class), explain why it is discrimination based on disability. Explain whether
there are any circumstances where an employer may discriminate on this basis,
using your example.
3. When an employer asks where you are from originally before they offer you a job,
which protected ground of discrimination have they violated? What is the question
they ought to have asked? Explain why this is the law in Ontario.
4. Is it a violation of the Ontario Human Rights Code to not hire a person because
they have several tattoos? Explain what the law is on this issue.
ACADEMIC INTEGRITY
Please note, you can use an AI tool to assist you in completing this Exercise, but note
two things:
1. You must cite it (put your citation in a Word document;
2. You need to ensure that your answer reflects the actual question – ChatGPT does
not necessarily do that. So you need to read the ChatGPT answer, revise it and
make it your own. If you simply cut and paste the question into ChatGPT and then
read the answer for the video.
RUBRIC
DEMONSTRATED
UNDERSTANDING OF
THE HUMAN RIGHTS
CODE
PRESENTATION
Exceptional
(negligible errors)
Fully and completely
understood,
explained and
applied the Ontario
Human Rights Code
(7-8 marks)
Strong
(minor errors)
Mostly understood,
explained and applied
the Ontario Human
Rights Code (5-6.5
marks)
Capable
(intermittent errors)
Some understanding,
explanation and
application the Ontario
Human Rights Code (34.5 marks)
Developing
(numerous errors)
Limited understanding,
explanation and
application the Ontario
Human Rights Code
(0-2.5 marks)
Organized, articulate,
clear, concise and
succinct
(2 marks)
Mostly organized,
articulate, clear,
concise and succinct
(1.5 marks)
Somewhat orgnized,
articulate and clear. Not
very concise or succinct
(1 marks)
Not very well organized
nor clear. Not
articulate, concise or
succinct
(0 marks)
Page 1 of 2
Summer 2024
EXERCISE #5 EMPLOYMENT LAW – ASYNCHRONOUS
SUB-TOTAL
/10
DEDUCTIONS
•
Used an AI tool without citing – 10 marks
TOTAL
/10
Page 2 of 2
Summer 2024