Term
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Definition
| Independent Contractors control the nature of the work they do, how their work is done, have the chance of profit or loss, and own the tools required to perform their duties. Employers are not responsible for the wrongful acts of Independent Contractors. |
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Term
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Definition
| Servants have little control over the nature of their work, how their work is done, hold little chance of profit or risk of loss, and do not own the tools they require to perform their duties. |
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Term
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Definition
| A test performed to distinguish between servants (employees) and independent contractors. Based on 4 factors: (1) Does the individual have control over the work they do? (2) Does the individual have control over how the work is done? (3) Does the individual have a chance of profit, or risk of loss? (4) Does the individual own the tools required to perform their duties? |
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Term
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Definition
| Is the job tied to the action leading to loss/damage? Was the act part of, or sufficiently related to the terms of employment? To what extent does the job create an environment that could lead to the occurance? Did the event occur because employment allowed it to happen? |
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Term
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Definition
| Agents can be servants or independent contractors. Such as a real estate broker who runs his own firm (independent contractor) or who is an employee of a large firm (servant/employee). |
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Term
| Contracts of Indefinite Hiring |
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Definition
| Contracts which have no set term, or end date. Almost never in writing. Employees can terminate their role immediately. Employer can immediately dismiss an employee on a indefinite contract with cause, or with a notice period or payment in lieu of notice. |
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Term
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Definition
| Contracts are required to be in writing for fixed-term employment, or for long-term employment. |
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Term
| Employment Law Jurisdiction |
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Definition
| Employment Law is generally under provincial jusridiction, where as federal law concerns government employees. |
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Term
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Definition
| The Charter of Right's does not apply to private relationships, only to the government, people working for the government, and people working with the power of the government. The Charter of Right's applies to the Human Rights, Citizenship, and Multiculturalism Act, which governs employment. |
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Term
| Human Rights, Citizenship and Multicultiralism Act |
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Definition
| Every individual is equal, and subject to the equal protection and benefit of the law without discrimination. According to the Charter of Rights, which applies to the Human Rights, Citizenship, and Multicultiralism Act, discrimination cannot occur against described groups. The list of "disadvantaged characteristics" is not exhausted. |
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Term
| Bonafide Occupational Requirements (BFOR) |
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Definition
| Discriminations that are necessary to show an individual is suitable to perform a job to standards required for that employment. Employers must show that the BFOR applies to the job at hand, and that there are certain requirements that must be met to perform the position accordingly. |
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Term
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Definition
| We must move through the following requirements to prove BFOR is valid: (1) Standard was adopted for a purpose rationally connected to the job. (2) Standard was adopted in good faith; necessary to fulfilment of work-related purposes. (3) Without the adopted standards it's impossible to accomodate without undue hardship. |
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Term
| Responsibility of Employers |
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Definition
| Responsible, and vicariously liable, for all acts of employees including authorized acts, and acts sufficiently connected to authorized acts. Not responsible for independent contractors in tort, but liable to terms of contract. |
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Term
| Responsibility of Employees |
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Definition
| The obligations of servants/employees to their employer are competence, obedience, honesty, and loyalty. Employees must excercise good faith and honest service. |
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Term
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Definition
| There must be a significant breach of contract, or numerous minor breaches, for there to be cause. Cause only exists for minor breaches of contract if the employee is progressively punished, warned of consequences for further breach, and these occurences are documented. |
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Term
| Employers Responsibility w/ Cause |
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Definition
| Employer must demonstrate that there was cause, but does not need to know of cause at time it occured. Employer does not need to prove cause until the case is in court; allows sufficient time to prepare case and proof of cause. |
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Term
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Definition
| Sufficient time for employee to find alternative and qualified employment. May be lengthened to represent damages. Payment of earnings and benefits during notice period is required. |
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Term
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Definition
| Length of notice period is determined based on 4 factors: (1) Character of employment (2) Age (3) Length of service (4) Availability of similar employment. Notice Period can be lengthened for wrongful dismissal, dismissal that is dishonest, bad faith discharge that may affect employees job prospects, and sacrifices made by the employee for employment (Wallace type damages). Failure to mitigate losses by the employee can lead to notice period reduction. |
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Term
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Definition
| Employees are required to mitigate losses arising from dismissal. This mostly involves actively seeking new employment. Failure to mitigate will lead to a reduction in the notice period. |
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Term
| Notice Period: New Employment Found |
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Definition
| If an employee finds a new job over the course of the holding period they are entitled to earnings and benefits leading up to the beginning of employment, and the difference in their new salary and old salary from the beginning of new employment until the end of the notice period where their new employment pays less than their old employment. |
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Term
| Punitive Damages for Wrongful Dismissal |
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Definition
| No punitive damages are given to the employer, they are simply reflected in adjustments to the notice period. |
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Term
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Definition
| Fixed term contracts have a defined term, or end date. If an employee on a fixed-term contract is dismissed without cause he/she is entitled to pay for the remainder of their contract. |
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Term
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Definition
| If employee suffers a work related injury you must try and accomodate accordingly. Accomodation is required unless it would produce undue hardship on the employer. |
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Term
| Important for Employment Cases |
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Definition
| Nobody is entitled to employment for their entire life. If there is a cause, you have a case for dismissal without a notice period, or payment in lieu of notice. You must always look at both sides of the dismissal. Notice Period: You are entitled to either continue work during this period, or payment in lieu. |
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Term
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Definition
| Dismissal in the absence of cause, or notice period or payment in lieu of notice. Includes constructive dismissal. |
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Term
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Definition
| A form of wrongful dismissal where there is a material alteration to the terms and/or conditions of the contract. Includes being treated badly on the job, hostile work environments, or having the job altered in some way that it is not the same job you applied for. If an employee quits for these reasons it qualifies as wrongful dismissal and they are entitled to a notice period or payment in lieu of notice. |
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Term
| Employers Responsibility w/ Dismissal |
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Definition
| Employers must be fair and just in how they dismiss an employee. They must not commit acts during dismissal that would cause an employee further damage. If you are aware of further damages that may be incured by the employee through dismissal you may held liable for damages. Damages reflected in a longer notice period. E.g. Firing an employee a month before pension eligibility. |
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Term
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Definition
| If employees do not meet BFOR(s) they may be dismissed with cause: failure to meet BFOR being the cause. We must take into consideration past work experience when looking at this type of dismissal (Meiorin). |
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Term
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Definition
| Vriends homosexual orientation was discovered by the college. Board of governors at college adopted a position statement on homosexuality, and asked Vriend to resign. Vriend refused and was dismissed. His first attempt at suing was wrongfully dismissed, as the Alberta Human Right commision said homosexuality was not included in the list of "disadvantaged qualities". Vriend appealed and his appeal was successful as the list of disadvantaged groups is not exhausted. |
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Term
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Definition
| Employers cannot discriminate against employees; all groups are subject to the equal treatment and benefit of the law without discrimination. Dismissal based on discrimination would result in damages to the employer in the form of a lengthened notice period. |
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Term
| Disadvantaged Individuals |
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Definition
| Section (15) of the Charter of Right protects the equal protection and benefit of all individuals, without discrimination. This does not preclude any law, activity or program with amelioration of disadvantaged groups, or individuals as their goal. |
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