Employment Law

1
Employment Law

• What is employment?
• Employment contract
• Employer duties, employee duties
• Employment conditions
• Common law v statute law
• Termination
• Unions and collective agreements
• Health and safety

2
What is employment?

• Employee v independent contractor
• Employment relationship stronger
• Control test
• Organization test

3
Employee or independent contractor?
4
Employee or independent contractor?
5
Mario Zupan v City of Vancouver

• Zupan Trucking Ltd., wholly owned by Mario Zupan,
  - long-term contract to provide trucking services
  to Engineering Dept.
• Only one truck and Mario personally drove the
  truck except on rare occasions
• On a day he hired a driver, the driver was found
  smoking marijuana. The City refused to engage
  Zupan Trucking Ltd.
• Mario Zupan sued for wrongful dismissal.
• Is this a case of employment termination or
  repudiation of a contract?

6
Mario Zupan v City of Vancouver

• As fanmwe

7
Common law

• Law of Master and Servant
• Largely replaced by
• Contract, e.g., employment contract or Collective
  Agreement (union contract)
• statute law, e.g., Employment Standards Act,
  Worker Compensation Act, Human Rights Code etc
• Provides implied terms to a contract

8
Common law Employers Duties

• Safety, wages
• Defined work, - job description
• duties, standards, compensation, term etc
• Clear expectations, supervision
• Vicariously liable for employees performance and
  tort actions
• Vicarious performance v personal performance
• Reasonable notice at termination

9
Common law Employees Duty

• Skills claimed,
• Reasonable competence,
• Honesty, good faith, loyalty,
• Punctual,
• Confidentiality (see Trade Secrets below)
• Non-competition
• Reasonable notice

10
Human Rights

• Human Rights Code
• B.F.O.R.s
• Positive discrimination affirmative action
  programs Sec. 15(2) of Charter
• Employment equity (see below)
• Pay equity (see below)

11
Employment contract

• Written or verbal
• Indefinite term v set term
• Terms
• compensation, (benefits, bonuses, severance)
• job description, reporting, responsibility,
  authority, job evaluation,
• Protection of company, trade secrets,
  confidentiality,
• Probation, overtime, sick and vacation leave,
  benefits, bonus

12
B.C. Employment Standards Act (federal Canada
Labour Code)

• www.labour.gov.bc.ca/esb/igm/welcome.htm)
• Hours of work - 40 averaged over a 4 week
  schedule
• Overtime OT after 8 hours (double time after 12
  hours) or after scheduled hours of day in
  schedule over an averaging period of 1, 2, 3 or 4
  weeks.
• Statutory holidays OT but must work 15 of 30
  days previous
• Minimum daily pay 2 hours if up to 8 hour
  shift, 4 hours if 8 hour shift

13
B.C. Employment Standards Act

• Records and wage stubs 2 years
• Minimum wages - 8.00 /hr except 6.00 for 1st
  500 hours
• Unpaid leaves pregnancy (17 weeks), jury,
  parental, family (5 days), bereavement
• Child labour if under 15 - permission of ES
  director, parents, school
• Vacation 1 to 5 years 2 weeks or 4
• After 5 years 3 weeks or 6

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B.C. Employment Standards Act

• Termination and severance
• 3 months to 1 year 1 week
• 1 year to less than 3 years 2 weeks
• 3 years and more 1 week per year to a maximum
  of 8 weeks
• Uniforms (reimbursed) v. safety equipment (no
  reimbursement)
• Full or part exemption - professionals, oil and
  gas, logging, silviculture, film, taxis,
  agriculture, high tech, long haul truckers,
  managers

15
B.C. Employment Standards Act

• Collective agreements override if greater
• Dispute resolution
• use Self-help kit before calling the Employment
  Standards Branch.

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B.C. Employment Standards Act Just Cause
burden of proof on the employer

• MORE EASILY DETERMINED -
• assault,
• conflict of interest,
• theft or fraud,
• dishonesty,
• breach of company rules,

• MORE DIFFICULT TO DETERMINE -
• Misconduct,
• harassment,
• breach of duty,
• chronic absenteeism or tardiness,
• serious undermining of the corporate culture,
• unsatisfactory performance

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B.C. Employment Standards Act Canada Labour Code

• Employer
• penalties old new
• 1st offense 0 150
• 2nd offense 150 2,500
• 3rd offense 250 10,000
• 4th offense 500 10,000

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Sexual Harassment

• Offender liable
• Employer may be liable if ignored problem or had
  no policy
• Be proactive and preventive
• Create a policy
• Notify and educate
• Encourage communication
• Ease of complaint procedure
• Discipline written warning, suspension,
  dismissal

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Termination

• Rightful dismissal -
• just cause - fundamental breach by employee
• without cause an employer may terminate any
  employee.
• only question is length of notice or severance
  pay
• Employers in stronger position
• To protect employees
• Common law,
• statute law,
• contract law and
• collective agreements

20
Termination

• Wrongful dismissal
• Unable to defend just cause
• Insufficient notice or severance if termination
  without cause
• constructive dismissal
• Downgrading a persons job
• Case Ager v. Motorola (1989) older employee
  had guaranteed base salary reduced loss of
  company car but sales commission increased. Is
  this constructive dismissal?

21
Defendable just cause

• Incompetence
• ensure probation period, written warnings,
  behaviour not approved (or ignored) by employer
• Misconduct
• dishonesty, cheating, disrespect, uncooperative
  attitude, failure to obey reasonable orders
• Give notice, give chance to change,
• If proven dishonesty immediate dismissal
• Case Dooley v C.N. Webber (1994) manager has
  an affair with a subordinate, against clear order
  from senior management. Is this just cause?

22
Defendable just cause

• Misconduct contd
• Case Laird v. Sask. RR Football Club P
  (equipment manager) insolent to referees and
  coach, terminated. Is this just cause?
• Conflict of interest moonlighting
• Sexual harassment investigate carefully
• Personality conflict NO!
• Retaliation whistle blower protection
• Case Pollinger v Bergman Graphics worker
  terminated when he told employer of complaint to
  Ministry of Labour for workplace smoking. Is
  this misconduct? Appropriate remedy?

23
Termination without cause

• Notice or severance pay in lieu of notice
• How determine?
• Common law precedents of recent settlements
• Statute law Employment Standards
• Contract
• Union collective agreement
• Factors -
• Type of employment, length of service, age, job
  market, health, deteriorating performance?
  Out-placement service offered?

24
Termination without cause

• Case Bardall v Globe and Mail P. (advertising
  manager) terminated without cause, found work
  immediately (P. mitigated) but at lower pay
  appropriate remedy?
• Layoff permanent or temporary economic
  conditions how much severance?
• E.I. Only after severance?

25
Wrongful dismissal cases

• Bohemier v. Storwal International
• older worker laid off, downsizing, letter sent by
  taxi to his home.
• In addition to severance, are there other
  remedies?
• Pilato v. Hamilton Place Convention Centre
• CEO lied to protect politicians on his board from
  embarrassment, became a political scandal, fired
  while on holiday
• What is an appropriate remedy?

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Equal pay and pay equity

• To prevent gender pay inequities
• Four principles
• Equal pay for equal work
• Equal pay for substantially similar work
• Equal pay for work of equal value
• Pay equity
• Case Union v Quebec City jail
• Female jail guards paid less than male guards all
  of whom were former police officers.

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Employment equity

• Despite Charter and H.R. codes
• some jobs, professions job ghettos or poorly
  represented by genders, ethnicity etc
• Employers must remove historic or systemic
  barriers, e.g., police forces

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Unions and collective bargaining

• Federal Canada Labour Code
• Provincial B.C. Labour Relations Code
• Terminology
• Bargaining unit (BU)
• Bargaining agent (BA)
• Collective bargaining collective agreement (CA)
• Unfair labour practices

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Phases of activity

• Organizing
• union trying to become bargaining agent (BA)
• Certification
• Formal recognition of BA usually a vote
• Bargaining union negotiates a new contract
• Establishes or re-negotiates collective agreement
  (CA)
• Job action possible - strike or lockout
• Contract administration
• day to day implementation of the CA - grievances

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Collective agreements

• Pertains to ALL employees in the BU
• No individual deals except in sports,
• Clauses
• Define the BU, BA, management rights, jobs
• Wages, benefits, pension, vacation
• Seniority, promotion, layoff, termination,
  severance,
• Grievance procedure, discipline
• Performance appraisal, personnel records,
• Length of contract, commencing of new round of
  bargaining

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Types of union recognition

• Closed shop union chooses members, employer
  hires from list Construction hiring hall
• Union shop employer hires, then all must join
  the union
• Rand formula popular compromise, dues are
  mandatory but membership in union is optional
• Open shop mix of unionized and non union
  workers usually voluntary dues normally weak
  unions

32
Contract administration

• Grievance procedure in the CA
• 1st - shop floor level, front-line supervisor and
  unions shop steward
• 2nd , next - refer to middle management, H. R.
  Department union local executive
• 3rd, next, refer to senior management and union
  executive
• Lastly, if still unresolved, take to arbitration
  expensive!

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Types of disputes

• Interest dispute during bargaining for a CA
  job action permitted
• Rights dispute during contract administration,
  about interpretation of the CA no job action,
  use grievance procedure
• Jurisdiction dispute between unions bitter!
• Recognition dispute during organizing campaign

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Case Aylwards (cob as Hotel Mortier) v. Retail,
Wholesale, Dept. Store Union of Nfld

• Union attempted to negotiate but management cited
  many reasons for delay
• Union went on strike
• Management sought a court order declaring the
  strike illegal as the union had not gone through
  all the processes leading to a strike (e.g.,
  mandatory conciliation) as mandated by the Labour
  Code
• Is this an illegal strike?

35
Job Actions

• Strike (full or partial) or work-to-rule
  (slowdown) by union
• Lockout by management
• Procedure
• Complete minimum bargaining period
• Hold strike vote give notice
• Mandatory conciliation (government)
• Cooling off period
• Strike or lock-out
• Picketing information only, no intimidation
• Primary v secondary
• Replacement workers, scabs

36
Health and Safety

• Common law employer duty to provide safe
  environment
• But strong defenses by employer -
• Employee contributory negligent
• Employee voluntary assumption of risk
• Fellow employee negligent (not employer)
• Need for statute law!

37
Health and Safety

• B.C. Workers Compensation Act
• Safety issues
• Conditions, identify hazards, protections
• Education, inspection, hear complaints,
  investigate, enforcement
• WCB premiums vary with risk
• Insurance program mandatory, no fault
• No right of employees to sue
• Pre-determined benefits based on need of injured
  employee

38
Trade secrets confidentiality

• Trade secrets a competitive advantage
• Confidential
• is objective, specific, e.g., customer list
• Not subjective such as know how or job
  skills,e g., selling skills
• Restrictive covenant non competition or
  confidentiality clause
• Must be reasonable
• Case Seaward Kayaks Ltd. V Rees
• Defendant (plaintiffs father) began own
  manufacturing business making smartrudders
  designed by Plaintiff. D. contacted Ps customer
  list. P. sought interim injunction