BLAW3305 Midterm Review PDF

Preview

Summary

midterm questions...

Description

BLAW3305 MIDTERM REVIEW CON STIT UTI ON STATUES REGUALTIONS CASE LAW

Constitution includes CCRF -

Quite effect on employment law Canadian Charter Rights & freedoms o Sections 32, supreme law, override any legislations/gov’t action o Constitution Act, 1982: federal 10%// provincial 90% o Range of rights, freedoms, equality rights  Equality right: section 15- must treat people equal rights/benefits/prohibited grounds  Example: Vriend Case- does not help him with gay rights o Section #1: Reasonable limits: by law as can be demonstrably justified in a free and democratic society o Section #32: Application to gov’t: sets outs rights of employees & employers o Section #33: fundamental rights, gov’t can apply for this

Statues: are supreme over case law, when pass may able regulated to put in place - Examine the accompanying regulation to ascertain how a particular is enforced Key employment statues: o ESC, Labour Relations Code, OHSCA, Workers compensation act workers hurt or injured), PIPEDA, CPP, EIA, Common Law: - Judge-made law that decides cases based on precedent - Residual law-creates the legal framework in the absence of specific rules Principles: o Stare decisis: the law is already decided o Binding: must follow higher courts decisions If facts are similar o Persuasive: decisions of courts from other jurisdictions maybe considered

o Distinguishable: facts are different, court may depart from earlier precedent 1. Contract law: a. Offer, acceptance and consideration as well as legality and intent b. remedy: award to place plaintiff in same position as If contract not breached c. Issues: i. Enforceability of restrictive covenants  Non-competition, non-solicitation, non-disclosure  Since limit in competition, they are presumed unenforceable  Includes: - geographical area covered by the covenant, the length of time the restrictions lasts  Often reasonable to restrict the employee from using that training/those secrets to compete against the former employer ii. Anticipatory Breach of Contract Either employer/employee maybe liable if it breaks the employment contract before employment begins Victims: A. That the offer was made and accepted B. That the other party repudiated the contract C. That damages were suffered as a result 2. Tort Law a. Applies where the law provides remedy for a civil wrong b. Ex: i. Defamation: false statements, published to others, derogatory. Employers are concerned about negative references. As lon as comments are truthful and made without malice, qualified privilege ii. Negligence hiring: third party that sues the employer for negligent hiring an employee, failure to perform a background check iii. Misrepresentation: misrepresent of qualifications or work experience: Ex: Duty of care, breach of duty, causation, damage iv. Inducement, allurement & enticement: employer take a position, short after terminated. c. Damages are awarded to compensate the plaintiff loss d. Enforcing promises, address “civil wrongs”

Defining the Relationship Independent Contractor: self-employed worker engaged by a principal to perform specific work - Providing statutory benefits, vacations, overtime pay Agents: can bind an organization to a contract with customers or other parties even without the organization’s knowledge - Relationship between agent & principal is governed by the law of agency - Ex: realtors, insurance, agents, travel agents - Hire individuals through an employment agency, as “temp”

Factors considered - Degree of control - Ownership of tools - Who assumes the risk of loss? - Durability of relationship - Is the worker in business for himself or are others benefiting from his work?

The Canada Labour Code Applies to employees and employers that operate under the jurisdiction of the federal gov’t Part I: Industrial relations - Can order representation votes for o Certifying: a majority of the employees in the unit wish to be represented to the applicant union, without the requirement to hold a representation o Decertifying unions: terminate a collective bargaining relationship between a union and employer - Order are enforced through the federal courts - Determine the sizes & structure of bargaining o New union is certified within the last four months o Process begins in 20 days o If strikes/lockouts, 72 hours Part II: Occupational Health & Safety - Goal to prevent accidents & injuries - Eliminate hazards and reduce - Employees have the right to refuse, participate Part III: Employment Standards - Similar to those found in provincial legislation - Address minimum requirements in terms of: work, wages, vacations, holidays, leaves harassment and termination of employment - Termination of employment: 12 months of continuous employment, unjust dismissal

Employment Contract -

Every employment relationship is based on a contract whether it be an oral or written one Sets our JD (open and flexible), remuneration, term, termination clause, probationary period, relocates, benefits, restrictive covenants, intellectual property, choice of law, corporate policies, entire agreement clause, allurement/enticement, legal advice, wage deduction,

Required Elements: CoCoCaLl - Co: A Consensus must have been reached. The odder must have been unconditionally accepted - Co: Consideration something of value must be exchanged - Ca: The parties must have Capacity - L: the agreement must be Legal - I: The parties must objectively Intend enter a binding agreement 1. Lack of consideration: in law means something of value given in exchange for the other party’s promise a. New consideration: state that the offer is conditional upon the prospective employee agreeing to accept the terms b. Consideration is something of value that each party exchange 2. Inequality of bargaining power a. Courts have been sympathetic to these arguments where the terms of contract are unconscionable b. Prevent the courts from presuming undue influence, the employer should: 1. Ensure that the terms are reasonably balanced 2. Ensure the employee is given the opportunity is read the contract and seek independent legal advice 3. Include a clause stating that the employee was given the opportunity to seek independent legal advice 4. Draw any unusual terms to the employee’s attention, particular any noncompetition/termination clauses 3. Obsolescence a. The terms no longer reflect the employee’s position within the organization, thus the courts may refuse to enforce them b. To ensure the old contracts do no become invalid, parties should update them whenever there is a significant change in duties c. Make salary increases and promotions conditional upon signing of a new contract 4. Failure to meet minimum statutory standards: a. Contract terms must exceed min requirements of Employment Standards Code b. Term in unenforceable and the employer will be liable for full common law reasonable notice 5. Use of ambiguous language a. Contra proferentum rule: where the terms of a contract can bear more than one possible interpretation, ambiguities will be interpreted against the drafter of the agreement

Employment Standards -

Hours of work: maximum of 12 hours work shift Overtime: 8 hrs/day Holidays: 9 per year Vacations: 2 weeks paid vacation Maternity & Parental leave: 15 weeks, 37 weeks Reservists leave: 20 days Compassionate care leaves: care for terminally ill members Termination pay: increases with length of employment

Alberta Human Rights Act 1. 2. 3. 4. 5.

One key human rights statute Cannot contract out of its requirements Applies to all facets of employment It places obligations on all parties Remedial rather than punitive

The preamble Code of Conduct i. Publications and notices j. Services, goods, accommodation k. Tenancies l. Employment m. Memberships: trade unions, occupational associations, employer’s org. Prohibited discrimination in employment on 15 grounds: - Race, religious beliefs, color, gender, physical & mental disability, gender identify, ancestry, place of origin, marital status, source of income, family status, sexual orientation, gender - BFOR: but there is a duty to accommodate up to point of undue hardship a. Section 7 & 8 i. Impact hiring process: 1. Employment is human rights legislations 2. Questions that are inappropriate at the interview or on application forms are those that disclose info 3. Job interview: job needs to be filled, standard of questions, document interview, accommodate disabilities, consider use of an interview team 4. Disability: job accommodation ii. steps to take before considering: 1. be rationally connected to job 2. honest belief (good faith) 3. reasonably necessary - accommodate the individual/group without creating undue hardship

Conditional Offers of Employment - where the position is offered but until certain conditions have been fulfilled, no employment relationships exists - permissible to ask for SIN, driver’s license, confirmation of employee credentials, education transcripts Pre-employment testing - medical testing must be left to after a conditional offer is made and must be a BFOR a. alcohol or drug testing: provinces take different approaches b. testing is prima facie discrimination c. Kellogg brown, key feature is the risk involved, so not hiring those who fail the test is legitimate or justifiable Discrimination: - Remove barrier, unjust practice or behaviour has a negative effect on anyone a. Can promote based on skill b. Can based on personality c. Can refuse to hire based on cleanliness and hygiene - Results of the rule that counts, not the intent Meiorin Decision: - SCC eliminated distinction - BFR: rationally connected, good faith and reasonable necessary - Inclusive design (designed to recognize individual differences) Undue hardship: - Financial costs - Size and resources of the employer - Disruptions of operations - Morale problems of other employees - Substantial interference with the rights of other individual/groups - Interchangeability of workforce and facilities - Health and safety concerns Accommodation - Disabilities: most likely in disability, religion and sex (determine functional, altered, review other available jobs, undue hardships, documents) 1. Substance abuse: accommodation, does not require employer to accept on going, if employer is consistent with accommodation, purely recreational use of drugs/alcohol is not disability 2. Religious beliefs: dress codes, break policies, holidays, religious leaves 3. Gender, pregnancy  modification of duties, temp to relocate, flexible work

4. Family status: flexible hours (care for aging parent), not consistent holding important meetings outside of work hours Human Rights complaint: - Settlement - Dismissal - Discontinuance: can appealed after 30 days - Appeals Than… - Referral to a human rights tribunal: staffed by civil servants, not by judges or lawyers Employment equity - Address the broad social problem of underrepresentation of women, visible minorities, aboriginal people, persons with disabilities in the workplace - Section 6: Alberta Human rights act, covers federally regulated companies a. Difference between federal & provincial, is federal can bid on the federal contract with a organization over of 100 employees

WORKER’S COMPENSATION -

No fault coverage Fully funded by employers Workers cannot waive benefits Coverage is mandatory Focus on early and safe return to work Independent contract WCB pays claims, oversees rehab & re-employment and enforces workers’ rights to reinstates

Compensation is limited to injuries and diseases that related to the workplace - To a worker who suffers personal injury by an accident - To the dependant of a worker who dies as a resuit of an accident - ARISES OUT OF AND OCCURS IN THE COURSE OF EMPLOYMENT a. Willful b. Chance event occasion by physical or natural abuse c. Disabling or potentially disabling condition cause by occupational disease 1. There is rebuttable presumption that accidents sustained during employment 2. disability does not apply to disability cases 3. occupational diseases: compensable if there is a causal relationship: Schedule B: workers compensation regulation 4. stress and chronic pain...