0917_Legal regulation_1_webct

0917_Legal regulation_1_webct - Legal Regulation of the...

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Unformatted text preview: Legal Regulation of the Employment Relationship I COMM392: Managing Employment Relationship 103/104 Fall 2009 Yoshio Yanadori Announcement Check all course exam dates and report exam conflict Midterm: October 21st 6:308:00pm Email (yoshio.yanadori@sauder.ubc.ca) by today Your information, please Email me (yoshio.yanadori@sauder.ubc.ca) Subject line: Comm392103 (or 104): [your name] My full name What you'd like to be called My preferred email address An interesting fact about myself Past employment experience (please briefly explain) Past management and/or union experience (please briefly explain) Have you been treated unfairly at work? (please briefly explain) Any expectations? 1. 2. 3. 4. 5. 6. 7. 8. Objective Understand the laws that govern employment relationship between employers and employees in the nonunionized sector* Who is an employee? What "rights" and "obligations" are associated with an employment contract? Under what circumstances can an employee be dismissed? * Relationship in the unionizedsector will be discussed later in this term Legal Framework Commonlaw contracts The individual employment contract employment rights at "common law" "Implied terms" of the employment contract Come from case law not from specific pieces of legislation Protective employment legislation [will discuss on Sept. 22] Laws that address particular issues in the workplace Employment Standards Legislation Human Rights Legislation Health and Safety Legislation Workers Compensation Legislation Scope Who is an employee? How can we distinguish employees from independent contractors? Laws will be applied to those workers who are regarded as employees Relevant factors Who owns the tools, machinery, and equipment? Is there risk of economic gains and losses? Does this person work for one employer only? Who decides when, where, and how the work is performed? To the public, does the worker look like and owner or employee? Is there a formal contract and what does it say? Implied Contractual Obligations of the Employee The obligation to advance the employer's business interests the employee must act in the best interest of the firm in carrying out his/ her assigned duties: Obey the orders of the employer so long as they are lawful, reasonable, and within the scope of the employee's contractual duties Attend the workplace at the appointed time Not to act in a fraudulent, deceitful, or otherwise dishonest manner toward the employer Not to make a secret profit Not to compete with the employer's business Perform work of a quality that meets the standard set by the employer Implied Contractual Obligations of the Employer Pay wages for work actually done Provide a reasonably safe workplace Treat the employee fairly Give reasonable notice of termination Dismissal at Common Law Dismissal at a nonunionized firm* Bottom line: A business has the right to fire any employees With just cause (e.g., serious misconduct) No notice period, no compensation Without just cause Adequate notice or pay in lieu (severance pay) Pay in lieu (severance pay) Pay what the employee is supposed to receive during the notice period * Unionized workers who are unfairly dismissed Follow the grievance procedure spelled out in the collective agreement Remedies include reinstatement Will discuss later (after midterm) Wrongful Dismissal Wrongful dismissal Dismissal without just case but no notice period or severance pay is given Wrongful dismissal case will be handled by the court In wrongful dismissal cases the court will review the following: 1. 2. 3. What is the basis for the dismissal? Was there just cause? If there was no cause, what is the length of reasonable notice that should have been given? Courts will not order the reinstatement of a wrongfully dismissed employee * What is the Basis for Dismissal? Three types of dismissals: Economic dismissals Not constitute just cause Possible only if employees are given notice period or pay in lieu Constructive dismissal Significant changes in a fundamental term of the employment contract (e.g., wage, working hours) Performance related dismissals Misconduct (e.g., theft, disobedience) Incompetence Possibly constitute just cause Constructive Dismissal Occurs when an employer unilaterally and fundamentally changes the terms and conditions of employment The change can be construed as equivalent to dismissal If the employee agrees to the change/implicitly condones it by not objecting, constructive dismissal will not be established Examples At the Burn Foods Company, a foreman was suddenly advised that his position, which he had held nearly 30 years, had become redundant and offered alternative work at lower pay as a beef boner or security guard. The company had never argued his work was unsatisfactory Embassy Cleaners changed the working condition of a presser, resulting in a more physically demanding job, and earlier start time, a change in the work week from five to six days, and a change from hourly wages to piecework Was There Just Cause for Dismissal? Once dismissal has been established, it is up to the employer to establish just cause Economic reasons do not constitute just cause Serious misconduct such as theft, insubordination, incompetence, dishonesty, and conflict of interests may constitute just cause Theft Vandalism Unauthorized release of confidential information Receipt of bribes Endangering the health and safety of self and others Abandoning the job for an extended period What is the Length of Reasonable Notice? Employment Standards Acts (ESA) set only the minimum notice required. Generally much higher "notice" awarded by courts than the minimum set by the ESA Courts in Canada have given award up to 24 months Awards often include pay as well as fringe benefits (e.g., bonuses, medical benefits, etc.) To determine the length of notice, following factors may be considered Length of service Age of employees Type of position Availability of alternative employment Severance Pay in BC Employment Standards Act After three months of consecutive employment an employee may be eligible for compensation, written working notice, or a combination of the two as follows: After three months one week After 12 months two weeks After three years one week for each completed year of employment, to a maximum of eight weeks No compensation is required when an employee quits, retires or is terminated for just cause. It is up to the employer to show the termination was for just cause. Additional notice or pay is required if 50 or more employees are terminated within a twomonth period at a single location. (SRP C3) Trendy's Restaurants Case How does this principle apply to the termination in Trendy's restaurants case? Was Trendy's unionized? No Assume (temporarily) there was no sexual harassment 1. What was the cause for the dismissal? 2. Was there just cause? 3. What is the length of reasonable notice/severance pay that should have been given to Sue? Factors influencing the length of notice period/severance pay? Next Class Legal Regulation of the ER II Textbook Chapter 3 (the remaining part) Bring SRP with you ...
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