CHAPTER 12

EMPLOYMENT
WHAT IS EMPLOYMENT?

WHO IS AN EMPLOYEE?
Employment

Employment involves one person doing work for another

 An employee is said to be in a master–servant relationship, acting under the
direction of the master

BUT - Not all workers are employees

Importance: each relationship imposes different legal rights and obligations on the parties
HOW DO WE KNOW
IF SOMEONE IS AN
EMPLOYEE?
THE CONTROL TEST

 Test for determining whether an employment relationship exists

• Assesses the degree of control exercised by the person paying for the service
- Control is greater over an employee than an independent contractor

Employment: employee agrees to serve the employer, who supervises and directs
Independent contractor: contractor agrees to do a particular job

Employees work for their employer; independent contractors work for themselves
EXAMPLE
If Felix hires Oscar to paint a
house, Oscar could be either an
independent contractor or an
employee. If Felix tells Oscar
which tools to use, when to work,
and how to perform the job, these
factors suggest that Oscar is
probably an employee.
Alternatively, if Oscar does work
for several parties and supplies his
own tools and determines what
time to start work and the best
way to perform the job, then he is
probably an independent
contractor.
THE ORGANIZATION TEST

The Courts supplement the Control test with the Organization Test:
 Organization Test: is the person an integral part of employer’s organization?
 - i.e. A baker is integral to a bakery.

The Courts will also use the risk test:

 Risk Test: examines whether the worker bears any financial risk of loss or stands to
profit is work is completed efficiently

Note: both independent contractors and employees may be agents of the party that
engaged them
THE LAW OF EMPLOYMENT (1 OF 2)

Obligations of EMPLOYER:
 Payment of wages or salary
 Safe working conditions
 Subjective test

Obligations of EMPLOYEE:
 Competent
 Honesty and loyalty
 Punctuality
 Act in Employer’s best interests
 Fiduciary obligations in some cases
THE LAW OF EMPLOYMENT (2 OF 2)

 Employment contracts are often verbal with some implied terms

 All the ingredients necessary for a contract to exist must be present

 Restrictive covenants must be reasonable
 Commitment not to work in a certain industry in a set area for a set time period
 Must be a reasonable area and time
 Otherwise illegal and void for public policy reasons
TERMINATION (1 OF 2)

 Contract may stipulate amount of notice to be given – or fixed term contract

 Employment can be terminated:
1. By either party giving reasonable notice
2. By pay in lieu of notice: the employer giving the compensation that should have been earned in
that notice period
3. Immediately with just cause

An employee may be dismissed with notice for any reason unless it violates human rights
legislation
TERMINATION (2 OF 2)

 No notice required in dismissal for just cause

 Termination entitlements are determined by length of service
 Layoffs may trigger termination pay
 Issue estoppel: if relief is sought for termination under legislation, then a subsequent wrongful dismissal
case may not be possible (if the employment standards tribunal has made a ruling)
JUST CAUSE

Just cause dismissal requires no notice

 Dismissal without notice must be based on employee wrongdoing or a failure to perform the job including:
 Absenteeism and tardiness
 Disobedience and insubordination – use of progressive discipline
 Incompetence – let employees know they are not meeting standards
 Harassing others
 Drunkenness – addiction issues – human rights
 Immoral conduct

Must be series and/or persistent

REASONABLE NOTICE

Required for WITHOUT CAUSE termination

- Statutory and Common Law Notice

1. Statutory Notice
- Legislation sets minimum standard for notice
- Employment contract notice must meet legislated minimum
https://www.alberta.ca/termination-pay
REASONABLE NOTICE

2. Common Law Notice

In setting reasonable notice courts consider the Bardal Factors (Test):
 Length of service
- The longer the length of service, the more notice is required
- As a starting point, the courts will assess one month’s notice for every year worked, up to a maximum of 24 months (this however varies depending on the other
factors)
 Character of Employment
– Senior/management level positions typically require longer notice periods
 Age of employee
– The older the employee, the more notice required (more difficult to get another job)
 Availability of similar employment
– How likely is it for the employee to find a similar job
- If it’s a unique position, notice may be significant
REMEDIES FOR WRONGFUL DISMISSAL

Damages are the appropriate remedy for wrongful dismissal

 Damages awarded based on what the employee would have received had proper notice been
given
 Employees have a duty to mitigate their losses – i.e. a duty to look for other jobs
 Dealing with employees in good faith has benefits
 Damages for defamation or intentional infliction of mental stress are possible
 Reinstatement is rare but possible
BOHNET V REBEL ENERGY SERVICES LTD., 2018 ABPC 131

Facts: The employee had worked at the company for 3.5 years and had a flawless work record at the time
he received an email from his manager stating, "Don’t bother coming in either I’ll look after all this k that
your two weeks. Thanks for your services have good day” [sic]. The employee subsequently alleged
wrongful termination, whereas the employer argued that the employee had quit, or, alternatively, that the
employer had just cause for termination.
Held: The Provincial Court of Alberta rejected the employer’s arguments, finding that the email from the
manager amounted to termination. The court also found that the employer did not have just cause for
dismissal, as the employee hadn’t failed to complete a task assigned to him, namely, adding certain safety
procedures to the employer’s safety manual. Moreover, the court also found that the employee telling his
manager to “f__ off” on a telephone call did not meet the just cause threshold, as there was no scene made
in public or in front of other employees. The employee was ultimately awarded 4 months of pay in lieu of
notice, amounting to approximately $28,000 in damages.
ILLNESS AND DISABILITY

 Illness may constitute frustration of contract

 Human rights and workers’ compensation legislation may require the employee to be
accommodated
 This duty does not apply if resolution of the problem will cause employer undue hardship
 Most businesses offer some form of illness and long-term disability insurance or policy as part of their
benefits package
LAYOFFS

 Running out of work or employer financial problems are not just cause for termination
 Reasonable notice or pay in lieu is required
 Some collective agreements and provincial legislation provides for temporary layoffs

If layoffs are longer than 13 weeks then this constitutes dismissal and termination pay is required – can be
extended to 35 weeks (i.e. if benefit pay is maintained)
CONSTRUCTIVE DISMISSAL

 Employment contract may be breached when nature of job changes without consent or working conditions
become intolerable
 Failure to address harassment or sexual harassment by management or by other employees may enable a
victim to claim constructive dismissal
 The law requires that employees take reasonable steps to mitigate damage

Hilton v Norampac Inc.

Hilton worked for Norampac for 15 years when the conditions of his employment were unilaterally changed
by his employer. He was required to be on call for extensive periods, including weekends, which he wasn’t able
to do since he needed to care for his children. He offered to be demoted or be on call during the week which
was refused. He was terminated for cause based on his refusal to obey instructions. Hilton sued for
constructive dismissal and was successful – CA held that the unilateral changes were material.
 WRONGFUL LEAVING

 Employees must give employer reasonable notice before departing

 Employment contract may set notice

 Following serious breach of the employment contract, an employee may leave without notice

 Employees may be sued for:

 Breach of confidence – most common
 Breach of valid restrictive covenant
 Breach of fiduciary duty (if management or executives)
LIABILITY OF EMPLOYER (1 OF 3)

 Vicarious liability of employer for torts committed by an employee in the course of employment
 Only imposed on the employer for conduct that is closely and materially connected to the risks created or introduced by
the employer
 Operators of motor vehicles of employers may cause vicarious liability to employer
 Employer has right to turn to employee for compensation when found vicariously liable
LIABILITY OF EMPLOYER (2 OF 3)

 Protections:
 Liability insurance
 Separating parts of the business and contracting them out

 Employer responsible for misuse of computers by employees

 Intentional or negligent violations of intellectual property rights, privacy

rights, or even criminal law
LIABILITY OF EMPLOYER (3 OF 3)

 Employers should advise employees that their online activities are being monitored
 Privacy laws require consent when personal employee information is collected, used,
or disclosed
 Personal Information Protection and Electronic Documents Act (PIPEDA)
 Criminal Code
 Employers may be held liable to employees should there be an invasion of privacy
EXAMPLES

Wasaya Airways LP v Air Line Pilots Assn (Wyndels Grievance)

An airplane pilot was terminated as a result of Facebook postings containing racist, derogatory comments about the
company’s owners and customers. The arbitor held that since the airline did business in the North with many
indigenous customers, who were disparaged by the comments, it was found that the company had justifiable
concerns about harm to its reputation. Dismissal was justified.

Alberta Union of Provincial Employees v Alberta (R. Grievance)

The dismissal of a government employee who in her blog made negative comments about her employer and co-
workers was terminated for cause and upheld. The blog contained confidential information and referred to her co-
workers as “aliens” and her workplace as a “lunatic asylum”.
LEGISLATION IMPACTING EMPLOYMENT

 Statutes designed to protect employees by setting minimum standards for:

 Wages
 Hours of work, overtime, and rest periods
 Vacation and holiday entitlements
 Maternity and parental leave
 Termination and severance pay
 Some also provide for bereavement and sick leave
 Expanded protections in Ontario and Alberta for:
 personal, domestic violence, and compassionate care leaves
EMPLOYMENT STANDARDS

In Alberta – Alberta Employment Standards Code

 Legislation provides minimal employment standards or protections

 Notice periods can be less than common law but must be greater than statutory
requirement
 Void if shorter than the statutory minimum and the employer will have to comply with
the longer “reasonable notice”
 Agreements that waive the protections or remedies available under the legislation
will be declared void
HUMAN RIGHTS LEGISLATION (1 OF 3)

Alberta Human Rights Act

Employees have a right to:
1. Work in a respectful, inclusive environment, free of discrimination.
2. Be accommodated for their needs based on protected grounds to the point of
undue hardship
3. Make a complaint to the Human Rights Commission if they believe they have
experienced discrimination.
PROTECTED GROUNDS

Protected Grounds: 8. Mental disability

1. Race 9. Age
2. Religious beliefs 10. Ancestry
3. Colour 11. Place of origin
4. Gender 12. Source of income
5. Gender identity 13. Family status
6. Gender expression 14. Sexual orientation
7. Physical disability

Tribunals hear complaints, investigate, levy fines and reinstate employees

HUMAN RIGHTS LEGISLATION (2 OF 3)

 Prevents discrimination in hiring and employment practices

- Restrictions on questions asked on applications and at interviews – i.e. family status, gender etc.
 Workplace rules need to be reviewed in light of human rights
 Discriminatory rules may be saved if the employer establishes them to be bona fide (genuine)
occupational requirements
- I.e. Hard hat rule may prevail even if it violates a religious right to wear a turban, if safety concerns
justify its use.
 Employers have an duty to accommodate employees with disabilities and special needs
- As long as the request does not cause the employer undue hardship
HUMAN RIGHTS LEGISLATION (3 OF 3)

 Other issues relate to:

 Pay equity – statutory right to receive equal pay for equal work.
- Public Service Alliance of Canada [1999] Case – Federal Government required to pay $3.3 billion to 230,000 former and
current employees for failing to comply with the charter and allowing a wage gap between men and women doing clerical work.
 Employment equity – take steps to correct situations where there has been racial or gender imbalances i.e. nursing –
preferential treatment to male job applicants.
 Aboriginal Employment Preferences
 Reverse discrimination
 Affirmative action
 Mandatory retirement – mandatory retirement laws have been set aside
 Harassment – unwanted verbal or physical conduct.
CANADA (ATTORNEY GENERAL) V JOHNSTONE

Family needs must be accommodate d

The complainant and her husband were both employed by the Canada Border Services Agency. She filed a complaint with
the Canadian Human Rights Commission following the denial of her request to alter her shift schedule to coincide with
available childcare arrangements. The Federal Court agreed that accommodating “family status” included childcare
obligations:
Need to show:
1. That a child is under his/her care
2. That the childcare obligation at issue engages the individual’s legal responsibility for the child, not just a personal choice
3. That he/she has made reasonable efforts to meet the obligations/alternative solutions
4. The impugned workplace rule interfered in a manner that is more than trivial or insubstantial with the fulfillment of the
childcare obligation
HEALTH AND SAFETY

Legislation focuses on prevention of injury in the workplace:

1. Provides safer working conditions
2. Ensures safe employment practices
3. Establishes programs to educate both the employer and the employee
 Safety boards ensure regulations are adhered to
 Can order the problem corrected or, in serious cases, they can shut the job site down
 Some can issue tickets
WORKERS’ COMPENSATION

 Legislation establishes compulsory insurance programs providing coverage for workplace injuries
 Deals with compensating employees injured on the job, even through their own carelessness
 Worker usually gives up right other compensation and cannot sue
 Compensation is limited to injury or disease that arises in the course of employment
EMPLOYMENT INSURANCE

 Under federal jurisdiction

 Laid-off employees are entitled to receive EI payments for a specific period of time
 Eligible:
 Those who are unable to work because of illness, disability, pregnancy, or adoption or
those caring for critically ill or injured children or adult family members
 Not eligible:
 Workers who voluntarily leave their employment, are involved in a strike or lockout
COLLECTIVE BARGAINING
COLLECTIVE BARGAINING

Industrial revolution saw workers join together to negotiate wages and working
conditions
 Legislation reduced conflict by recognizing an employee’s right to be a member of a
union
 Eliminated the employer’s power to interfere in any way with the organizational
process
 Employer obligated to negotiate with union in good faith
LEGISLATION

 Legislation is designed to reduce conflict in interest disputes and rights

disputes
 Collective bargaining is regulated by federal and provincial legislation
 Labour tribunals regulate the dispute process
 Employers need to engage in good-faith bargaining and negotiate terms
in a meaningful way
 Charter cases clarified the right to bargain collectively
ORGANIZATION OF EMPLOYEES

Certification process: employees’ application to labour relations board to be

recognized as a bargaining unit
 Majority of workers must be members of the union
 To obtain certification over 35 percent of the workforce must participate in vote
and a majority must support certification
BARGAINING AGENT

Once certified, the trade union has exclusive bargaining authority for the
employees it represents
 A unionized employee loses the right to negotiate personally with the employer
 Bargaining Agent
 Given exclusive authority to negotiate with employer
 Any contract negotiated is binding on all employees within the unit
UNFAIR LABOUR PRACTICES

 Prohibited unfair labour practices include threats or coercion of employees by either

the union or management
 Employer cannot threaten dismissal for joining a trade union or require refraining
from trade union as employment condition
 In some provinces, unfair labour practices can result in certification without a vote
 Employer retains right of free speech
BARGAINING

Either party can give notice to commence bargaining

 Parties must bargain “in good faith”
 Make reasonable effort to reach an agreement
 Once agreement is reached it must be ratified by both employees and
employers
MEDIATION AND ARBITRATION

Mediation: third party intervention in the negotiation process to facilitate agreement

 Used when negotiations break down
 May be mandated by legislation
 Parties are prohibited from taking more drastic forms of action, such as a strike or
lockout when mediating
Arbitration: a method for settling disputes and grievances arising out of the
agreement
 Decisions of arbitrators are binding on parties
TERMS OF COLLECTIVE AGREEMENTS

 Minimum length of one year

 May have an automatic renewal clause
 Retroactivity is generally a matter to be negotiated by the parties
 Settlement of disputes:
 Grievance process
 Collective agreements must contain provisions for the settlement of disputes
arising under the agreement
 Arbitration
 Can be appeal to Labour Relations Board or courts
STRIKES AND LOCKOUTS

 Job Action
 Lockout: action by employer to prevent employees from working
 Strike: withdrawal of services by employees
 Work to rule: employees do no more than minimally required by agreement
 It is unlawful for a strike or lockout to occur while an agreement is in
force
 Otherwise, disputes are resolved through grievance and arbitration process
 Must bargain in good faith before strike and give sufficient strike notice
PICKETING

 Occurs once a strike or lockout is underway

 Strikers gather at a place of business providing information that
dissuades people from doing business with employer
 Peaceful
 Courts or labour relations boards may restrict picketing when regulations
violated
 Solidarity and confrontation
 Secondary picketing
PUBLIC SECTOR AND ESSENTIAL SERVICES

People involved in essential services may have their right to strike limited by special
legislation
 Still may collectively bargain
 Affects police, firefighters, hospital workers, some educators
 Substitute compulsory arbitration
UNION ORGANIZATION

 Trade unions are democratic organizations in which policy is established by vote

 Elections of officers
 Expulsion or discipline for misbehaviour
 Subject to Human Rights legislation
 Trade unions are overseen by labour relations boards and courts
 Obligation to represent all members fairly
NEXT CLASS - INTELLECTUAL PROPERTY

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