Review Questions - Week 2 - Introduction to Employment Law
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Feb 20, 2024
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Review Questions – Week 2 – Introduction to Employment Law 1.
What is the main distinction between employment and labour law?
Employment law and labour law are two distinct areas of law that regulate the workplace in Canada. Although they are related, they have different scopes, sources, and subjects of regulation.
The scope of employment law is the legal relationship between an individual employee and their employer, while the scope of labour law is the legal relationship between groups of employees, such as unions, and their employers. Employment law applies to non-unionized workplaces, while labour law applies to unionized ones.
The sources of employment law are mainly statutes, regulations, and common law, while the sources of labour law are mainly statutes, regulations, and collective agreements. Statutes and regulations are laws enacted by the federal or provincial governments, such as the Employment Standards Act or the Canada Labour Code. Common law refers to the body of law developed by judges through their decisions in previous cases. Collective agreements are contracts negotiated between unions and employers that set out the terms and conditions of employment for union members. Employment law mainly deals with individual rights and obligations, such as contracts, wages, discrimination, and termination. On the other hand, labour law mainly deals with collective rights and obligations, such as collective bargaining, strikes, and union disputes. Employment law focuses on issues that affect individual employees and their employers, while labour law focuses on issues that affect groups of employees or labour unions and their employers. In summary, employment and labour law are two related yet distinct areas of law that govern the workplace in Canada. Their main goal is to protect the rights and interests of workers and
employers and promote a fair and productive work environment.
2.
What sets employment contracts apart from other contracts?
Employment contracts are a type of contract that outlines the relationship between an employer and an employee. There are several ways in which employment contracts are different from other contracts.
Firstly,
employment contracts are subject to statutory and common law rules that protect the rights and interests of workers. These rules include minimum wage, overtime pay, vacation pay, human rights, and health and safety. Other contracts may not have these legal obligations and protections.
Secondly
, employment contracts often involve an imbalance of power and information between the parties. The employer usually has greater control and knowledge over the terms and conditions of the employment relationship. Other contracts may be more equal and transparent between the parties. Thirdly,
employment contracts are typically ongoing and dynamic, as they can change over time because of promotions, transfers, performance reviews, or other factors. Other contracts may be more fixed and static, as they are based on a specific transaction or project.
Finally
, employment contracts may contain clauses that limit the rights and freedoms of the employee, such as non-competition, non-solicitation, or confidentiality clauses.
Other contracts may not have such limitations or consequences for the parties.
3.
How do the obligations of an employer and employee differ? Why do you think that is? Employment law is a legal branch that governs the rights and responsibilities of employers and
employees in the workplace. Employers and employees have distinct roles and obligations in the employment relationship, which are regulated by the law.
Employers are required to provide a safe, fair and productive work environment for their employees. This means that they must comply with statutory and common law regulations that
protect the rights and interests of workers, such as minimum wage, overtime pay, vacation pay, human rights, and health and safety. Employers must also pay employees for their work performed and reimburse them for any reasonable and necessary expenses incurred on behalf of the business. Additionally, employers must respect the contractual terms and conditions of employment, and provide proper notice of termination or pay in lieu to employees who are terminated without cause.
On the other hand, employees are obligated to perform their work duties diligently, loyally, and
competently for their employers. This entails following their employer's instructions and policies, cooperating and obeying their employer, and acting in good faith and the best interests of their employer. Employees must not disclose or misuse any confidential information or trade secrets of their employers. They must also respect the contractual terms and conditions of employment and provide reasonable notice of resignation to their employers.
The reason why these obligations differ is because they reflect the mutual expectations and benefits that each party derives from the employment contract. The employer expects the employee to contribute to the success of the business and to respect the employer's interests and policies. The employee expects the employer to compensate them for their work and to respect their rights and interests as a worker. Additionally, these obligations are influenced by the statutory and common law regulations that protect the rights and interests of both parties.
4.
Explain the concept of “accommodation” in relation to an employers obligations
pertaining to human rights. The employer's obligation to human rights includes accommodation of the employee's needs to participate fully and equally, without discrimination. Accommodation applies to an employee's needs related to the grounds of discrimination such as disability, creed, family status, sex, or gender identity.
Accommodation is based on the principles of dignity, individualization, and inclusion. This means that the employer must respect the employee's dignity and privacy, tailor the accommodation to the employee's specific circumstances and preferences and ensure that the employee is not excluded or
isolated from the work environment.
Accommodation is a shared responsibility between the employer and the employee. The employer must accommodate the employee to the point of undue hardship, which is the reasonable limit to how far the employer has to go to accommodate the employee. The employee must cooperate in the
accommodation process, which means that the employee must request accommodation, provide relevant information, and accept reasonable solutions.
Accommodation is a means of preventing and removing barriers that impede the employee's full participation in the workplace, and of promoting a fair and productive work environment.
5.
What must a plaintiff prove to establish a negligent tort? Provide an example of one in the employment law context. To establish a claim for a negligent tort, the plaintiff must provide evidence for four elements, namely duty, breach, causation, and damages. This means that the plaintiff has to demonstrate the following: - The defendant had a legal obligation to act with reasonable care to avoid causing foreseeable harm to the plaintiff, known as the duty of care. - The defendant breached the duty of care by failing to perform or performing an act that a sensible person in the same situation would not have done.
- The defendant's failure to meet the duty of care caused the plaintiff's loss or injury, which implies that the damage would not have occurred but for the defendant's negligence, and that the injury or loss was a foreseeable outcome of the defendant's negligence.
- The plaintiff suffered actual damages as a result of the defendant's negligence, which can include physical, emotional, or financial harm.
For instance, in an employment law context, an employer may be liable for a negligent tort if they fail to provide proper training or supervision to an employee, who then causes harm to a
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third party while performing their job duties. For example, if an employer hires a delivery driver without checking their driving record or providing them with adequate instructions on how to operate the vehicle, and the driver causes a car accident that injures another driver, the injured driver may sue both the driver and the employer for negligence. The injured driver would need to prove the four elements of negligence against both the driver and the employer to recover damages, claiming that the employer was negligent in hiring, training, and supervising the driver and that this negligence caused the accident and resulting injuries.
6.
What are three steps that an employer could take to avoid common law liability? Common law liability refers to the responsibility imposed on a party by law based on custom, as opposed to liability imposed by statute. It can arise from various sources such as negligence, breach of contract, or fiduciary duty. To prevent common law liability, an employer could take the following steps: 1.
Ensure all statutory premiums are paid on time:
The employer should remit the required premiums for the Canada Pension Plan, Employment Insurance, and Workers’
Compensation to the appropriate authorities, and deduct the employee's share from their wages. This will prevent any penalties, interest, or claims for unpaid premiums. 2. Clearly define employment terms and conditions:
The employer should have a written employment contract or policy that outlines the terms and conditions of employment such as wages, hours of work, vacation, overtime, and termination. This will prevent any disputes, misunderstandings, or breaches of contract between the employer and the employee.
3. Implement a comprehensive system to manage and track all financial transactions related to employee compensation, taxes, and other statutory requirements:
The employer should use a reliable payroll system or service that can calculate, record, and report all the financial transactions related to employee compensation, taxes, and other statutory requirements. This will ensure accuracy, compliance, and transparency, and prevent any errors, omissions, or fraud. These are some steps that an employer could take to avoid common law liability. However, they are not exhaustive or guaranteed. An employer should always consult a legal professional for specific advice and guidance on their situation.