Questions and Answers
What is the most important guarantee in the Canadian Charter of Rights and Freedoms from an employment perspective?
What legal concept ensures that higher court decisions are binding on lower courts in similar situations?
Which branch of common law regulates contractual relationships in employment?
What is the effect of the notwithstanding clause (section 33) in the Canadian Charter of Rights and Freedoms?
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Which of the following describes tort law?
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Federal employment law is primarily restricted to which type of industries?
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How does common law primarily operate?
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What is the primary function of administrative tribunals?
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How does human rights legislation differ from the Charter in Canada?
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What aspect of employment law do administrative agencies or commissions typically oversee?
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How may inducement affect an employee's wrongful dismissal damages?
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What constitutes an anticipatory breach of contract?
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What is a potential consequence of negligent hiring?
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What does Alberta's Human Rights Code prohibit in the context of employment?
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What is the main intention behind Alberta's Human Rights Code?
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Which of the following statements is true regarding the Alberta Human Rights Code?
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Which of the following is NOT an exemption under the Alberta Human Rights Code?
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In what context does the Alberta Human Rights Code apply?
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What is the nature of the legislation of Alberta's Human Rights Code?
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What should employers ensure when outlining a job position's requirements?
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Which ground is NOT explicitly mentioned as a reason for discrimination under Alberta's Human Rights Code?
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Which of the following best describes the concept of 'undue hardship' in the context of the Alberta Human Rights Code?
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Which of the following is true regarding sexual harassment under the Alberta Human Rights Act?
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What is the duty of employers regarding accommodation for employees?
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What is the best practice for advertising job positions?
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Which of the following is prohibited during the recruitment process?
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When can employers request information that may disclose a protected class?
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What should employers do if a candidate tests positive for substances?
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What type of tests are acceptable during the recruitment process?
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What are employment agencies required to comply with during recruitment?
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Which type of questions can be included in interviews regarding prohibited grounds?
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Statute law refers to laws passed by the federal or provincial government.
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A bill becomes a statute after it receives Cabinet approval.
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Most employee rights in statutes apply only to non-unionized employees.
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Regulations are rules made under the authority of a statute.
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An individual can be classified as an independent contractor for tax purposes and as an employee for wrongful dismissal.
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Every jurisdiction in Canada has enacted human rights legislation that prohibits discrimination.
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Administrative agencies are only allowed to investigate complaints related to financial fraud.
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The Meiorin three-part test applies to assess whether a rule is a bona fide occupational requirement or qualification.
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Employers have an obligation to accommodate employees, in a protected ground, up to the point of undue hardship.
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Job advertisements should include qualifications that discourage members of protected groups.
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Employment agencies must comply with human rights requirements during recruitment.
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Pre-employment medical exams should be conducted before a conditional offer of employment.
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Substance dependencies can be classified as disabilities under employment law.
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Employers are allowed to automatically disqualify overqualified candidates during the hiring process.
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Employers can include questions related to prohibited grounds during interviews without restrictions.
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Advertisements should be spread widely to prevent perpetuating the status quo.
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Requests for information about protected class membership can be made at any stage of the hiring process.
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Tests that measure job-related skills are generally acceptable during recruitment.
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Study Notes
Sources of Employment Law
- Federal employment law is governed by the Constitution Act, 1867; applies to industries of national importance.
- Key federal statutes include:
- Canada Labour Code
- Canadian Human Rights Act
- Employment Equity Act
- Personal Information Protection and Electronic Documents Act (PIPEDA)
- The Canadian Charter of Rights and Freedoms, established in 1982, affects the workplace by guaranteeing rights, particularly through section 15.
- Section 33 of the Charter introduces the notwithstanding clause, allowing legislation to operate despite Charter rights.
Common Law and Employment
- Common law evolves from court decisions, relying on precedent (stare decisis).
- Higher court rulings are binding on lower courts in similar cases, although higher courts can redefine legal interpretations.
- Influential common law branches in employment law include:
- Contract law: Governs non-union employment terms.
- Tort law: Addresses civil wrongs, which may be intentional or negligent.
Judicial Framework
- Administrative tribunals handle specialized matters like employment standards and discrimination, making significant rulings and overseeing investigations.
Defining the Employment Relationship
- Individuals may be classified as independent contractors for taxes but as employees for wrongful dismissal cases.
- The Digital Platform Workers’ Rights Act, 2022, will provide protections for gig workers in digital platforms.
Human Rights Legislation
- Provincial and territorial human rights statutes apply broadly, ensuring protections against discrimination across various social areas.
- The Meiorin three-part test assesses bona fide occupational requirements (BFOR) and bona fide occupational qualifications (BFOQ) for employment decisions.
Alberta’s Human Rights Code
- Applies to both public and private sectors, protecting against discrimination in employment based on 16 grounds and prohibits sexual harassment.
- Intent to discriminate is not necessary; the impact of actions is prioritized.
- Employers cannot contract out of the Code, which prevails over conflicting legislation unless specified.
Exceptions in Discrimination
- Exemptions where discrimination is permissible include:
- Special service organizations
- Bona fide occupational qualifications
- Situations deemed reasonable and justifiable
- Cases of undue hardship for employers
- Special affirmative action programs
Recruitment, Selection, and Hiring
- Employment decisions should not be influenced by discrimination even if other reasons are present.
- Employers must clearly define essential job duties and accommodate candidates to the point of undue hardship.
- Employment agencies must comply with human rights regulations.
- Job advertisements and interview questions must not discourage applicants from protected groups.
- Requests for sensitive information about protected statuses should be deferred until after conditional offers.
Areas of Common Law Liability
- Inducement in hiring can lead to larger awards for wrongful dismissal.
- Employers must maintain honesty about job details and future prospects.
- Restrictive covenants restrict an employee's ability to compete; non-competition clauses are largely prohibited unless specific conditions are met.
- Anticipatory breach of contract occurs when an employment offer is revoked before commencement.
- Employers may face liability for negligent hiring if candidate information is not verified.
Sources of Employment Law
- Statute law consists of laws (legislation, acts, statutes) enacted by federal or provincial/territorial governments.
- Employee rights in statutes apply to both unionized and non-unionized employees, establishing minimum working conditions.
- Statutes affect the employment relationship, including anti-discrimination laws.
- A bill in Ontario or federally requires three readings in the legislature to become a statute; public bills are introduced by Cabinet ministers, while private members' bills are introduced by individual members.
- A statute is formalized once it receives Royal Assent.
- Regulations are rules created under a statute (e.g., minimum wage stipulations in the Employment Standards Act, 2000).
Key Ontario Employment Statutes
- Employment Standards Act, 2000
- Human Rights Code
- Labour Relations Act, 1995
- Occupational Health and Safety Act
- Workplace Safety and Insurance Act, 1997
- Pay Equity Act
- Accessibility for Ontarians with Disabilities Act, 2005
Judicial Framework and Administrative System
- Administrative tribunals handle specialized decisions in employment standards and discrimination.
- Administrative agencies or commissions can investigate complaints and make rulings.
Defining the Employment Relationship
- An independent contractor may be classified as an employee in wrongful dismissal cases.
- The Digital Platform Workers’ Rights Act, 2022 provides protections for gig workers.
- An agent represents another party in negotiations.
Human Rights Legislation in Canada
- Provincial and territorial human rights statutes apply to individual and corporate actions, prohibiting discrimination across social areas.
- Definitions of discrimination have evolved from intentional acts to broader impacts.
Meiorin Test for BFOR/BFOQ
- Validates if a job requirement serves a legitimate business purpose, is necessary for job performance, and cannot be accommodated without undue hardship.
Recruitment, Selection, and Hiring
- Employment agencies must comply with human rights laws; advertisements should not discourage protected groups.
- Prohibited questions based on grounds like sex and race are not allowed on applications; certain exemptions exist.
- Conditional job offers should precede requests for identifying information or pre-employment medical exams.
- Pre-employment drug testing may be discriminatory, requiring employers to accommodate positive results if disabilities are involved.
Areas of Common Law Liability
- Misrepresentation by job candidates can justify dismissal for cause; minor misstatements typically do not warrant non-notice dismissal.
- Employers misleading prospective employees can be liable for negligent misrepresentation, as defined in landmark cases.
- Employers should ensure pre-employment information is accurate, job descriptions are clear, and notes are kept during interviews.
Written Employment Contracts
- Essential elements include offer, acceptance, and consideration; oral agreements can be binding if these elements are present.
- Written contracts minimize misunderstandings, clarify contentious issues, and reduce uncertainty.
Common Contractual Terms
- Contracts should be customized per employee; standard contracts may suffice for lesser-skilled roles.
- Key terms include job description, remuneration, termination conditions, notice of resignation, probationary period, and relocation.
- Additional terms may cover remote work, benefits, restrictive covenants, intellectual property ownership, and legal advice.
Important Clauses in Contracts
- Entire Agreement, Severability, Inducement, and Temporary Layoff/Suspension clauses are also essential in employment contracts.
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Description
These questions relate to the first fours modules covered in the course.
