Employment Law Lecture Slides - Midterm 1 - PDF

Employment Law © Jean Pommainville B.A., LL.L., M. FISC| Mana 479 Instructional Methods Instructional method Lectures Assessment Criteria Midterm #1 30% Midterm #2 30% Final Exam 40% Questions? COPYRIGHT The content of these slides is copyright protecte...

Employment Law © Jean Pommainville B.A., LL.L., M. FISC| Mana 479 Instructional Methods Instructional method Lectures Assessment Criteria Midterm #1 30% Midterm #2 30% Final Exam 40% Questions? COPYRIGHT The content of these slides is copyright protected and owned by their author; The slides are provided to individual students exclusively for academic and study purposes; Therefore, they cannot be published or otherwise shared with any other person without the explicit consent of their author; The Copy Right Act provides for damages and penalties for violations Part 1 The Canadian Constitution Constitution Heads of power are divide between the federal government and the provincial governments. Section 91 and 92 of the Constitution describe which of the two of governments have jurisdiction to legislate in a particular area. section 91 and 92 of Constitution Constitution s.91 federal government legislates in matters of criminal law, postal services, military, divorce, Indians and lands reserve for Indians, etc… S.92 provincial governments legislate in matters of property and civil rights, marriage, administration of justice, etc… Constitution The government who has been attributed the head of power has the exclusive right to make laws concerning that head of power. If that government fails to legislate the other government’s laws cannot fill the gap. Federal and provincial legislative powers are mutually exclusive. Constitution So the provincial governments cannot legislate in the area of criminal law. Such a law would be ultra vires or unconstitutional. The constitution clearly divides legislative subject matter between the two levels of governments. Constitution What happens when a legislative subject matter is not included in the heads of power listed in s.91 and s.92 ? For example telecommunications and labour relations. The courts are generally called upon to decide. TORONTO ELECTRIC COM vs Snider AC.docx Snider case Constitution A 1925 court case considering whether a federal law imposing on employers and employees a Board which was required to make inquiries and attempt to effect a settlement before a strike or lock-out could be declared was unconstitutional? The Privy Council declared that this was an interference with the civil rights of the employer and employees under the Head of Power “property and civil rights” 92.(13) Provincial jurisdiction. Constitution The Rule Since this judgment was rendered the courts in Canada have consistently upheld the rule that: In labour relations, provincial jurisdiction is presumed because these issues are more closely related to “property and civil rights” a provincial head of power under 92(13) Constitution The Explicit Exceptions to the Rule (1) Federal Employees The labour relations between the federal government and federal employees, or government employees of the Yukon, Nunavut, Northwest Territories. The province has no power to regulation the working conditions of these employees. Constitution The Explicit Exceptions to the Rule (2) Federal enterprises that are directly related to one of the federal heads of power in s.91. Example railways—the right to regulate the industry necessarily implies the right to regulate to labour relations of that industry. This is the exception under which the precursor to the Canada Labour Code (CLC) was determined to be constitutional by the Supreme Court of Canada (SCC) Constitution The Explicit Exceptions to the Rule Other examples of Federal enterprises Railway Trans border and interprovincial ship lines and shipping by boat Airports, airlines Radio Stations Banks Constitution The Explicit Exceptions (3) POG “…peace, order and good government” (residual powers of the federal government); These are subject matters not expressly mentioned in the Constitution by fall to the Federal government under POG; They also include works and undertakings which are to the general benefit of Canada or more than one province. For example Telecommunications Constitution The Implicit Exceptions to the Rule (1) Criminal Law can implicitly regulate certain areas of labour relations because the law may make certain actions illegal. (interference with freedom of association-picketing-vandalism- sabotage). Constitution The Implicit Exceptions (2) Indians and lands reserved Rule of provincial jurisdiction applies to on reserve enterprises; In order to exclude the rule the enterprises must be federal in nature or regulated directly by the Indian Act. NIL Tu,O 2010scc45.wpd.docx NIL/TU:O Case Constitution The Implicit Exceptions to the Rule (3) State of National Emergency Such war—would allow Federal Government to temporarily suspend the application of normal labour relation rules. Constitution Application (1) Qualification of the Law If the true nature and essence of the law is a labour law it will not apply to the other level of government or their enterprises. Application of the Act respecting occupational health and safety (a provincial law) to Bell Canada employees (federal employees) Preventative leave; right to refuse to work, inspections, etc… these work conditions could not apply to federal employees. Constitution Application (2) Qualification of the enterprise The law under which the company is incorporated is NOT important in determining whether it is a federal of provincial enterprise; The fact that it receive federal subsidies is also NOT important. Constitution Application Look at the nature of the enterprise and its normal and habitual activities. In order to avoid application of the provincial jurisdiction rule, these activities must be integrally related a federal head of power. (direct) Constitution Application An otherwise provincially regulated enterprise can become federally regulated if it becomes an integral part of a federally regulated enterprise; Northern telcom 1 SCR 733.docx Northern Telecom Case Installation services offered by NTC to Bell were an essential, vital and integral part of Bell’s operations and thus were federally regulated (indirect) Constitution Application (3) Indivisibility---once an enterprise is qualified as federal it cannot be divided. Example if transport company does intra-provincial, extra provincial, and international transport all of the labour relations of the enterprise will be governed federally. Exception Victoria Empress Hotel and CP Railway  LABOUR LAW © Jean Pommainville, B.a., LL.L., M.FISC.| Mana 479 1 COPYRIGHT The content of these slides is copyright protected and owned by their author; The slides are provided to individual students exclusively for academic and study purposes; Therefore, they cannot be published or otherwise shared with any other person without the explicit consent of their author; The Copy Right Act provides for damages and penalties for violations 2 Part 2. Individual Employment Contract 1. Parties There are two parties to the employment contract: the Employee (E’EE) and the Employer(E’ER); The E’EE must be a natural person this conclusion is implicit from a reading of the Civil Code of Quebec(CCQ) I.E. E’ER must protect health, safety and dignity of E’EE. Contract ends when E’EE dies. 3 Individual Employment Contract Nature of the Contract The E’ER can be either a natural or a legal person, or a general or limited partnership, or even an association. Identification of the E’ER is generally an easy task but there are exceptions. For example when E’EE’s services are temporarily loaned out to another E’ER Or in tripartite arrangements such as the supply of manpower from one E’ER to another 4 Individual Employment Contract Nature of the Contract Generally, the party who exercises the control over the E’EE’s working conditions will be considered the E’ER. (See discussion on direction and control Slides #8, 9,10) Pointe-Claire (City) v_ Quebec (Labour Court).htm City of Pointe Claire 5 Individual Employment Contract 2. Elements of the Contract (1) THE WORK It can be of any type (manual or intellectual); It can be regular or intermittent; full-time or part-time; Interruptions in the provision of work due illness, work shortage, strike, or other causes do not entail termination of the employment contract. 6 Individual Employment Contract 2. Elements of the Contract (2) REMUNERATION The right to remuneration for work performed is essential to the notion of an E’EE. (no volunteerism) The E’EE can be paid on an hourly, weekly, monthly or yearly basis; on flat rate or by commission; Need not just be with $$$ but could be a good (property) or service. 7 Individual Employment Contract 2. Elements of the Contract (3) SUBORDINATION This is the most significant and defining element of the contract of employment. Without the element of subordination there is no employment agreement. Compare s. 2085 to s. 2099 CCQ 2085 A contract of employment is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer. 8 Comparison between 2085 and 2099 CCQ 2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2099. The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client. What is the difference? 9 Individual Employment Contract 2. Elements of the Contract Historically subordination meant the boss looking over your shoulder watching you working; In the modern context, it means the E’ER’s right to determine what work will be done, how and when the work will be performed and the right to supervise and control its execution. 10 Individual Employment Contract 2. Elements of the Contract Factors denoting subordination include: Mandatory presence at workplace; Regular assignment of work; Rules of conduct and behaviour; Requirement for E’EE to submit activity reports; Quality control over work performed. 11 Individual Employment Contract 3. Formation of the Contract Formed by the simple consent of persons having the capacity to contract; No form is necessary (need not be in writing). 12 Individual Employment Contract 4. Characteristics of the Contract Bilateral; Onerous; Communitive; Successive performance; Intuitu personae (Because of the person). 13 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ (1) WORK The work must be performed personally, but there can be arrangements between E’EE and E’ER; The work must be performed under the direction and control of E’ER. E’ER’s subordination of E’EE to his workplace rules does not include the ability to require the E’EE to act in a manner which contrary to PUBLIC ORDER or illegally. 14 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ Nor can E’ER impose work rules which affect or intrude on the E’EE’s private life (without justification); An E’EE’s insubordination may result in the E’ER exercising his right to impose disciplinary action (warning, reprimand, suspension, and finally termination). The work must be performed prudently and diligently. (P&D) 15 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ The obligation of prudence is generally a “best efforts” obligation, but may, depending on the nature of the work, constitute an obligation of “result”. The obligation of diligence deals with the quality and quantity of the work produced. Not respecting these obligations leads to dismissal for incompetence or incapacity (professional) 16 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ (2) LOYALTY AND DISCRETION The obligation of loyalty arises from the fact that the E’EE works in exchange for salary and therefore the E’EE should be honest and loyal towards the E’ER (element of trust placed in E’EE). The E’EE cannot be dishonest towards his E’ER or tarnish the E’ER’s reputation (except for valid whistleblowing). McKinley v_ BC Tel.htm McKinley vs BC Telecom 17 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ E’EE cannot place himself in conflict with the interest of the E’ER (i.e. favoring competitor-or favouring self-interests to detriment of E’ER’s interests); bank of montreal v_ kuet leong ng.htm Bank of Montreal vs Ng E’EE must protect the E’ER’s confidential information. (CI) 18 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ What is confidential information (CI)? Information the parties declare to be (CI) Limited access to the information Trade secret Financial information about the E’ER Business Strategies Production methods 19 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ The obligation of loyalty may survive termination of the contract for a reasonable period of time; Balance between protection E’ER’s legitimate interests and the E’EE’s right to earn a living. Belisle vs Lyrco (2088CCQ) Post-contractual obligation depends on the facts of each case but will rarely be more than a few months in duration so as not to unduly limit fair competition. 20 Individual Employment Contract 5. Obligations of the E’EE 2089 CCQ Non-Compete Clauses Non-compete clauses are legal (must be in writing) and must contain three components: Type of employment Geographic territory Time period 21 Individual Employment Contract 5. Obligations of the E’EE 2089 CCQ The limits imposed on the E’EE in the three components of the clause must go no further than what is reasonably required to protect the legitimate interests of the E’ER; The E’ER has the burden of proving the validity of the clause (all limitations are reasonable). S. 2095 to the effect that even if the clause is valid it may not in certain cases be invoked or enforced (used) in Court. 22 Individual Employment Contract 5. Obligations of the E’EE 2088 CCQ (3) SECURITY (SAFETY) The E’EE must perform the work prudently in order to avoid injury to himself, his co-workers, the environment and others. The extent of this obligation depends largely on the work being performed. (Office work vs construction work) 23 Individual Employment Contract 6. Obligations of the E’ER 2089 CCQ (1) THE WORK E’ER has to allow the work to be performed; Provide the work place or space; Provide the tools, equipment and other supplies necessary to complete the work (not public order) Provide the work to be complete as agreed upon. (type, quantity, duration) 24 Individual Employment Contract 6. Obligations of the E’ER 2089 CCQ (2) HEALTH, SAFETY, DIGNITY, PRIVATE LIFE The E’ER must “take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee” E’EE shares in this responsibility Act respecting occupational health and safety Act respecting industrial accidents and occupational diseases 25 Individual Employment Contract 6. Obligations of the E’ER 2089 CCQ E’ER must protect the E’EE’s dignity Protect against any form of harassment in the workplace; Psychological, sexual, etc.. Regardless of its source (management, co-workers or E’ER representatives) janzen v_ platy enterprises ltd.htm Janzen vs Platy (sexual harassment) 26 Individual Employment Contract 6. Obligations of the E’ER 2089 CCQ E’ER must safeguard E’EE’s privacy (private life) Could be considered a breach of this obligation, depending on the circumstances: Deliberately intercepting and using private communications; Recording and using a person’s image or voice in a private place; In any way, carrying out surveillance on a person’s private life. Personnel files must be held in confidence (37 to 41 CCQ) they are private documents. 27 Individual Employment Contract 6. Obligations of the E’ER 2089 CCQ (3) REMUNERATION E’ER must pay that which was agreed. Remuneration can be $$$ or any other form of advantage having pecuniary value. Remuneration includes things such as, vacation pay, statutory holidays, pensions, health or other forms of insurance; 28 Individual Employment Contract 7. Duration of the Contract S.2085 CCQ the duration of a work contract cannot be “for life”. S. 2086 CCQ the contract can be for an indeterminate term or for a fixed term Indeterminate term = unknown end date Fixed term = known end date (either by fixing a date[31/12/23] or event the occurrence of which will end the contract [i.e. when employee returns from maternity leave]) 29 Individual Employment Contract 7. Duration of the Contract (1) TERMINATION BY MUTUAL CONSENT Like any other contract the employment contract can be terminated by mutual consent of the E’ER and E’EE. 30 Individual Employment Contract 7. Duration of the Contract (2) TERMINATION BY FORCE MAJEURE These are events that are completely outside of a parties’ control and occurring without any fault of the party invoking force majeure, rendering the performance of their obligations, under the terms of the contract impossible. The party invoking the force majeure must prove it. Once proven the contract ends. (i.e. long-term illness of E’EE or bankruptcy of E’ER) 31 Individual Employment Contract 7. Duration of the Contract (3) TERMINATION BY DEATH When the E’EE dies the contract is terminated When the E’ER dies it might be terminated; See s. 2097 CCQ—alienation of the enterprise 32 Individual Employment Contract 7. Duration of the Contract (4) TERMINATION FOR SERIOUS REASON (WITH CAUSE) Both fixed term and indeterminate term contracts can be unilaterally terminated without notice or indemnity for serious reason, (2094 CCQ) E’EE terminates = resignation E’ER terminates = firing What constitutes a serious reason will generally be based on either a breach of the E’ER’s obligations(s.2087) or of the E’EE’s obligations (s. 2088). 33 Individual Employment Contract 7. Duration of the Contract Resignation can be simple or conditional; Simple resignation can manifest itself by the E’EE simply not showing up at work; It may be a notice to the E’ER in which case it only binds the E’EE when the E’ER learns of the notice. 34 Individual Employment Contract 7. Duration of the Contract The E’EE must freely consent to resign. Resignations forced on the E’EE through subterfuge, threats, harassment, or unilateral changes to a fundamental clause of the employment agreement will be considered Constructive Dismissal. Farber v_ Royal Trust Co.htm Farber vs Royal Trust (constructive dismissal) 35 Individual Employment Contract 7. Duration of the Contract Conditional resignation It may not be a resignation at all but rather an offer to negotiate a termination agreement. The E’ER cannot waive the notice an E’EE has given him—he may however indemnify the E’EE for that period of time instead of having E’EE continue at work. 36 Individual Employment Contract 7. Duration of the Contract Only serious reason terminations allow E’ER to terminate immediately and without indemnity of any kind. Constructive dismissal do not qualify. Constructive dismissal occur when the E’ER , harasses, threatens, humiliates, vexes, the E’EE in order to get the E’EE’s “resignation”. Constructive dismissal is actionable and treated like a wrongful dismissal. 37 Individual Employment Contract 7. Duration of the Contract Serious Reason termination is NOT the same as “good and sufficient cause”terminations—more on this later. For a reason to be considered a “serious reason” fault has to be attributable to either the E’ER or the E’EE Difficult financial situation of the E’ER is not considered a “serious reason” to terminate an E’EE without notice or indemnity; 38 Individual Employment Contract 7. Duration of the Contract Also, “serious reason” do not include those reasons the law specifically excludes: Discriminatory reasons. Whistleblowing. Seizure of salary in hands of E’ER. Jury duty. Exercising a right under Labour Standards Act (LSA) (OHS) etc… 39 Individual Employment Contract 7. Duration of the Contract Serious reason for E’ER = E’EE serious breach of obligations under s. 2088 Serious reason for E’EE = E’ER serious breach of obligations under s. 2087 The fault must be sufficient severe to warrant termination. The penalty must fit the crime (i.e. Being late) 40 Individual Employment Contract 7. Duration of the Contract (5) TERMINATION OF INDETERMINATE CONTRACTS S. 2091 CCQ The parties must be able to terminate indeterminate terms contracts. Each party may end such a contract by giving reasonable notice to the other. In the case of the E’EE giving notice—it is more theoretical than practical as E’ER would have to prove his damages. (Can’t withhold salary owing) 41 Individual Employment Contract 7. Duration of the Contract Two ways of giving “reasonable notice” Working or allowing work for the period of time = to reasonable notice Paying a indemnity in lieu of reasonable notice. 42 Individual Employment Contract 7. Duration of the Contract Reasonable notice is calculated by taking into consideration several factors: Nature of the employment; Particular circumstances of the employment Length of time E’EE has worked for E’ER The age of the E’EE 43 Individual Employment Contract 7. Duration of the Contract A E’EE cannot waive his right to a “reasonable notice” s. 2092 CCQ [Public Order] A pre-established “reasonable notice” clause in the E’EE’s contract may not be binding if it is no longer “reasonable notice”; The circumstances of the parties (E’EE) may have changed over time. 44 Individual Employment Contract 7. Duration of the Contract (6) TERMINATION FIXED TERM CONTRACT Fixed term contract are not presumed they must result from an express understanding of the parties. They terminate upon the occurrence of the event which gives rise to termination (i.e. a date, an event, a result) 45 Individual Employment Contract 7. Duration of the Contract (7) ALIENATION OF ENTERPRISE This rule deviates form the “relativity of contract” rule. Employment contracts follow the enterprise (functional and organic); When the enterprise changes hands (sale, succession, force sale, etc..) employment contracts follow the enterprise. 46 Individual Employment Contract 8. Recourses E’ER’S RECOURSES Generally cannot obtain a Specific Performance order against an E’EE (cannot obtain a court order forcing an E’EE to work when he no longer wishes to work for the E’ER); Executing on a contractual “penal clause” is possible; Injunction for valid non-compete clauses and disloyal or dishonest behaviour; Damages for resignation without reasonable notice (rare). 47 Individual Employment Contract 8. Recourses (2) E’EE’S RECOURSES Irregular termination: Specific Performance –supply work (reintegration) but not generally used because of unilateral right to terminate indeterminate contracts under the provisions of the Civil Code---but is possible under other statutory laws LSA for example; Claim salary equivalent to reasonable notice; Moral damages (anxiety etc..) only in presence of gross fault or negligence or abusive terminations. Absence of serious reason to terminate or insufficient notice does not necessarily mean there was gross fault. 48 Individual Employment Contract 8. Recourses Remuneration Action to claim salary by proving he performed the work or was available to do so. E’EE has the obligation to mitigate his damages (ie. Has to find another employment). 49