Questions Common Law

1
Questions- Common Law

• Describe and differentiate the three legal
  regimes
• Define and discuss the three questions associated
  with dismissal
• Define Just Cause
• When is an employer required to give notice?

2
The Legal Regimes

• Common Law (non-union)
• Collective Bargaining (union)
• Statutory (union non-union)

3
Samantha

• hired by Teleconnection Inc. June 1992
• terms of employment negotiated between her and
  Telecom
• 30,000 and 3 weeks vacation
• June 1993 - Sandy is fired without notice for
  failure to follow work rules
• Samantha sues for wrongful dismissal
• Court rules that she should have been given 4
  weeks notice
• orders payment in lieu of notice

4
Common Law - Samantha

• similar to contract law
• employment relationship individual contract for
  labour
• both parties are free and equal contracting
  parties in the sale/purchase of labour
• enforced/adjudicated by the courts

5
Juanita

• hired by Data Inc. (unionized) June 1992
• terms of employment outlined in CLA
• June 1993 - Juanita fired for failure to follow
  work rules
• June 1993 - Juanita files grievance
• Jan 1994 - arbitrator rules reinstatement without
  pay

6
Collective Bargaining Regime - Juanita

• based on inferior bargaining economic power of
  employee vs. employer
• substitutes individual employment contract with
  collective employment contract (union - employer)
• enforced/adjudicated by administrative tribunals
• Labour Relations Board
• Arbitration

7
John

• John
• works as a Nurse at Central Hospital
• not a union member
• worked Labour Day Monday and not paid overtime
• files a complaint with labour standards officer

8
Statutory Regime (John)

• minimum terms and conditions for employment for
  all employees (union and non-union)
• usually enforced/adjudicated by administrative
  boards
• Labour Standards Officers/ Tribunals
• Human Rights Commissions

9
Common Law

• Employer
• Employee
• Employment Contract/Agreement

10
Employee

• Per Montreal Locomotive Works Ltd (1947)
• control of the work
• ownership of the tools
• chance of profit
• risk of loss
• Employees are required to
• work
• serve honestly and faithfully
• obey lawful and safe orders
• be present
• provide notice (intention to quit)

11
Employer

• An employer is required to
• pay employee (at or above minimum wage)
• give reasonable notice of dismissal without cause
• can give payment in lieu of notice
• notice is not required when
• not an employee
• contract of specific duration
• resignation
• frustration of contract
• temporary layoff
• just cause

12
The Contract

• Express terms
• offer letters
• oral agreements
• employee handbooks
• Implied by past practice

13
Dismissal Question 1

• - Was there expressed/constructive dismissal
• expressed - writing/verbal
• constructive - fundamental change in contract
• pay level, job title/status, hours of work,
  benefits

14
Dismissal Question 2

• - Was there Just Cause
• Cause - Port Arthur Shipping Co. (1967)
• serious misconduct
• habitual neglect of duty
• (gross) incompetence
• conduct prejudicial to employers business
• willful disobedience to the employers orders
• No Cause
• economic conditions
• reorganizations

15
Dismissal Question 3

• 3- No Cause - What is the appropriate remedy?
• Reinstatement is not deemed reasonable
• Reasonable notice/pay in lieu of notice
  calculated based on
• statutory minimum
• unemployment/length of time to obtain a similar
  position
• age and service
• level of responsibility
• education/training
• approx 1 month per year of service (max 24 months)

16
Questions

• What elements are included in the
  Employment/Labour Standards Laws?
• Discuss the race to the top and the race to
  the bottom as it applies to employment/labour
  standards
• Define BFOQ/BFOR, Duty to Accommodate,
  Discrimination, Systemic Discrimination
• What are the goals of Health and Safety
  Legislation?

17
Employment/Labour Standards

• floor of rights - the minimums for all
• vacation
• public holidays
• hours of work
• minimum wage
• wage protection
• maternity leave
• employment of children
• notice of termination

18
Emp. Stds Harmonization

• Race to the bottom (Downward harmonization -
  lowest protection)
• increased global competition
• competes based on low-cost
• elimination of subsidies as part of trade
  agreements
• inter-jurisdictional competition for investments
  and jobs
• practices of multi-nationals

19
Race to Top-Upward Harmonization

• political pressures
• NAFTAs labour side accord
• social charter - EEC
• harmonization thru enhanced growth and
  development
• supply and demand
• practices of multi-nationals
• social and consumer pressure
• union pressure
• emulation of best practices

20
Conditions for downward harmonization (Gunderson,
1997)

• Labour law in question must be implemented and
  enforced
• Laws must lead to real/perceived increase in
  labour costs to employers
• Higher labour costs must deter investment and
  influence location decisions
• Jurisdictions must compete for investment and
  jobs on basis of reducing costly labour laws

21
Human Rights Legislation

• Charter of Rights and Freedoms (1984)
• Canadian Human Rights Act (1985)
• Employment Equity (1986)

22
Human Rights Legislation

• Largely influenced by Civil Rights Act of 1964,
  title VII
• rectify past employment discrimination
• cannot discriminate based on prohibited factors
• gender
• age
• race/ethnicity
• disability.

23
Discrimination Defined

• Unlawful distinction based on prohibited
  grounds
• Systemic discrimination
• Impact of practice is discriminatory
• intent not considered
• Result, Impact, Effect are the KEY!

24
Solutions / Remedies

• Duty to Accommodate
• reasonable steps to correct the situation unless
  undue hardship
• onus on employer to prove undue hardship
• BFOQ/R - Bona Fide Occupational
  Qualification/Requirement
• discrimination is permitted if requirement of
  the job
• must be apply to all employees

25
Bhinder vs. CNR

• required to wear a safety hat
• safety issues
• Sikh religion
• can only wear a turban

26
HR Tribunal ruling

• CNR
• applied to all employees
• onus to prove accommodation is undue hardship
• Tribunal ruled
• not a BFOQ/R in this case
• no undue hardship
• no danger to others
• small increase in Workers Compensation Costs

27
Court of Appeal

• Hard hat rule applied equally to all employees
• no discrimination
• applied to all employees
• BFOQ/R cannot be applied to an individual must be
  applied to the whole occupation

28
Employment Equity

• goals
• workforce representation mirrors available labour
  market
• remove systemic discrimination in employment
  practices
• not just hiring!
• goals not quotas
• target groups (women, visible minorities, persons
  with disabilities, aboriginals)
• federal contractors and government employees

29
Occupational Health Safety

• Provincial goals
• the prevention of workplace accidents and illness
• recognition that all workers have a fundamental
  right to a workplace that neither impairs their
  health nor imperils their safely
• works with stakeholders to establish, promote and
  enforce workplace health and safety
• Joint committees (employee/union employer)

Source http//www.gov.nf.ca/env/Labour)