lecture 7 - Lecture#7:EmploymentLaw Wednesday,March2,2016...

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Unformatted text preview: Lecture #7: Employment Law Wednesday, March 2, 2016 5:04 PM Employment Employee vs. Independent Contractor Important to know the difference because of Vicarious liability Independence contractor doesn’t work for an employer. Thus, vicarious liability does not apply for independent contractors "control test" or "organiza‫ހ‬on"‐ Does the person working have a risk of loss? Is the person doing the work himself or just a supervisor or working for someone else If the person is told on how to do the work, then that person is most likely an employee The courts will also take into account if the individual gets paid based on a salary or wage In other words, contractors work for themselves whereas employees work for the employer This test is used to spot if a person is an independent contractor or an employee. Because many businesses are star‫ހ‬ng to reorganize their business so everyone are contractors so the employer and employee benefits in taxes Puni‫ހ‬ve damages are o㈥汹en used in employment to employee contract termina‫ހ‬ons Obliga‫ހ‬ons of an employee Competent work Honesty and loyalty Punctuality Ac‫ހ‬on in employer's best interests They also have fiduciary obliga‫ހ‬ons in some cases But note that even if the employee did not follow its obliga‫ހ‬ons, just cause for dismissal is not jus‫ހ‬fied if the punishment is not propor‫ހ‬onate to the employee mistakes Effects of Termina‫ހ‬on Wrongful Dismissal An employee's contract of employment has been termina‫ހ‬on breaches one or more terms of the contract of employment or a statute provision in employment law" Note that an employment rela‫ހ‬onship must occur between the employer and the employee previously between the individuals in order for the employee to sue to employer For example: Employee got fired because of discrimina‫ހ‬on Employee refused to do illegal work and got fired for it 1. Employee quits No compensa‫ހ‬on *An excep‫ހ‬on* The excep‫ހ‬on is construc‫ހ‬ve dismissal: The employee can say that he quit the job because the employer was an asshole and didn't want to fire so he is forced to pay. The courts will pay for the employee But the person has the obliga‫ހ‬on to mi‫ހ‬gate his damages by trying to get another job 2. Employer terminates Just cause: Just means that the employer's decision in firing the person was jus‫ހ‬fied. This means that the employee does not receive compensa‫ހ‬on. Most importantly, this means that the employer doesn’t have to give the employee no‫ހ‬ce when they fire them No‫ހ‬ce: Employee must be no‫ހ‬fied that he/she will be fired. Working No‫ހ‬ce: Person gets no‫ހ‬fied that he will be fired in 8 weeks. However during these 8 weeks, the person can come to work and will get a full paycheck Pay in line of no‫ހ‬ce: Same scenario as in working no‫ހ‬ce but the fired person is not coming to work. However, the person must mi‫ހ‬gate his damages Note: Employer has the right to terminate the employment rela‫ހ‬onship for no specific reason as long sufficient no‫ހ‬ce is given. But employer's rights to terminate is a bit restricted because of federal rights legisla‫ހ‬on and by the Charter of Rights and Freedoms Also, if the Employer promises job security and then decides to fire the person, they have to give an even BIGGER no‫ހ‬ce since they promised security in the first place Employer is also responsible for the behavior at the workplace. Say sexual harassment occurred but it was from another employee and that employee who was harassed resigned. The employer would also be at fault for not crea‫ހ‬ng a safe environment to work in Ques‫ހ‬on, is how to calculate the no‫ހ‬ce en‫ހ‬tlement Statutory Law: Sets minimum standards Employment Standards Act 1 week of no‫ހ‬ce for every year of employment to a maximum of 8 weeks The employee doesn't have to mi‫ހ‬gate his losses Common Law Judges look at the: Length of employment Type of job Qualifica‫ހ‬ons Job market Age of employee Depending on these factors, this will either increase or decrease your en‫ހ‬tlements En‫ހ‬tlements can go up to 2 years Also, these people can get these en‫ހ‬tlements regardless if they were wrongfully dismissed or not It is important for the employer to let the employee get his own lawyer when this happens otherwise the employee could sure the employer for signing the contract under duress Remedies for Wrongful Dismissal Damages are usually based on what the employee would have received if proper no‫ހ‬ce been given For example, if a person is fired and is only given a month's no‫ހ‬ce when he should receive a five month no‫ހ‬ce will be awarded the difference. The employee does however, have the obliga‫ހ‬on to mi‫ހ‬gate their damages. He must try to find another job Fiduciary duty: To act in good faith 3rd Party is like customer Non‐compe‫ހހ‬on Covenants You are en‫ހ‬tled to be protected from "unfair" compe‫ހހ‬on Limits must be reasonable as between: the par‫ހ‬es Public interest It has to reasonable in terms of: Time Geographic limits Ac‫ހ‬vi‫ހ‬es that are proscribed Agency Principal (E.g CARLOT OWNER) Agent (E.g Salesman) An agent screws up. So the ques‫ހ‬on is does the Principal or 3rd party win? First the courts look at the actual authority of the Agent Say it is Apparent Authority. The authority that a reasonable 3rd party expects the agent to possess given the ac‫ހ‬ons of the principal Say it is Actual Authority. Make more notes on this Undisclosed Principals If the existence of the principal was disclosed to the 3rd party, the 3rd party can only sue the principal If the existence was not disclosed, the 3rd party can sue the agent if there was a problem with the contract Duty of Agents 1. Not to delegate 2. Duty to account 3. Duty to act in good faith( bona fides ) You must always put the interest of the principal ahead of yours when you are an agent ...
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  • Winter '09
  • MACCN
  • Wrongful dismissal

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