skills to standard of said profession etc. ○ Duty to act in best interests of employer Senior executives, employees have a higher duty to the employer than do ordinary employees Page 21
○ Fiduciary positions ○ Termination Legislation Sets out minimum notice period required Length varies depending on length of service of employee Minimum requirement of legislation Common law may require more Common law rule is one of reasonable notice Adequacy of reasonableness determined by several factors Termination Common law - Factors: Nature of contract Method of payment Length of service of employee Age of employee Position of employee Market place Ability to find similar work Method of termination by employer Dismissal and Wrongful Dismissal Dismissal Dismissal can be with notice or without notice Page 22
If without notice dismissal is: with just cause or; without just cause (wrongful dismissal) Just cause The onus on the employer to establish the grounds for termination of an employee without notice Wrongful Dismissal The failure of an employer to give reasonable notice of termination Just Cause Grounds for Dismissal: Incompetence Grossly negligent in performance of duties Commits a crime Absenteeism Substance abuse Dishonesty and disobedience Conflicts of interest Disruption of corporate culture Off job behavior that has a negative impact on employer Wrongful Dismissal When an employee is dismissed without just cause or without proper notice or pay in lieu of notice: Page 23
Employee may sue for wrongful dismissal Employee must mitigate their losses General rule: damages is actual loss between time dismissed and the end of the reasonable notice period Purpose is to place the employee in same position had the employee been given proper notice Employer Liability to Third Parties Vicarious Liability Contracts usually in name of company (employer) not the employee Employers are liable for the actions of their employees ○ Negligence ○ Breach of contract Test: if within the scope of the employee’s job ○ Not include acts outside the employee’s duties Reasons: ○ Employer has deeper pockets ○ Employer Liability for an Employee’s Injuries Historically Employees faced a dilemma Problems existed in employee suing either employer or other employees of the employer ○ Success may lead to dismissal or financial drain on the company Page 24
○ Employer may argue employee voluntarily assumed risk or that it was an injury due to employee’s negligence Workers Compensation Provides compensation to workers injured on the job Eliminates the dilemma No fault system (insurance scheme) ○ Employees covered by act entitled to compensation but waive right to sue employer ○ Employer’s contribute to compensation fund Labour Relations
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- Spring '10
- Common Law