Check In - Week 2 - Introduction to Employment Law
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George Brown College Canada *
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Law
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Feb 20, 2024
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docx
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Week Two - Check-in – Introduction to Employment Law 1.
Why is it important to understand the laws that govern workplaces? Understanding the laws that govern workplaces is crucial for both employers and employees. It enables them to protect their rights and interests, avoid disputes and conflicts, and foster a fair, safe, and productive work environment. To comply with their legal obligations and responsibilities and avoid penalties, fines, or lawsuits that may result from violating the law, both parties should be aware of the laws that govern their workplace. Some of the laws that regulate workplaces in Canada include:
- Employment standards laws that establish minimum standards for wages, hours of work, overtime, vacations, leaves, termination, and other employment-related aspects. Human rights laws prohibit discrimination and harassment on grounds such as race, sex, disability, religion, and others. - Health and safety laws that require employers and employees to maintain a safe and healthy workplace and report any accidents, injuries, or illnesses.
- Labour relations laws that regulate the relationship between unions and employers and the rights and obligations of both parties in collective bargaining, strikes, and grievances. - Privacy laws that protect the personal information of employees and customers and limit the collection, use, and disclosure of such information by employers.
Apart from these laws, other federal, provincial, or territorial laws may apply, depending on the business's nature and location. Therefore, employers and employees must understand the laws that govern their workplace and seek legal advice if they have any questions or concerns.
2.
Why do employers have more obligations imposed on them than employees? How does this influence the nature of the employment contract? Employers have more obligations than employees as they hold more power and control over the employment relationship, and they are the ones who benefit from the work done by employees. It is the employer's responsibility to provide a safe, fair, and productive work environment and to comply with the relevant laws and regulations that protect the rights and interests of workers. On the other hand, employees have fewer obligations,
such as performing their work duties in a loyal, diligent, and competent manner, and following the employer's instructions and policies.
. This imbalance of obligations affects the nature of the legally binding employment contract between the employer and the employee. The employer usually drafts the employment contract and it may contain clauses that favour the employer’s interests, such as non-compete, non-solicit, or confidentiality clauses. The employee may have limited bargaining power or choice in accepting or rejecting the employment contract, especially if they
are in a vulnerable or precarious situation. Therefore, the employment contract may not reflect the true intentions
or expectations of the parties and may create an unequal or unfair relationship between the employer and the employee.
3.. What is the difference between being an employee vs an independent contractor? The difference between being an employee and an independent contractor is that an employee works for an employer who controls the work of the employee, while an independent contractor works for themselves or their own business and offers their services to different clients.
The difference affects the income tax status, statutory contributions, and legal rights and obligations of both parties
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Some of the main factors that distinguish an employee from an independent contractor are:
The degree of control that the employer or client has over the work of the worker, such as where, when, and how the work is done.
The ownership and provision of the tools and equipment that are needed to perform the work.
The financial risk and opportunity for profit that the worker assumes in relation to
the work.
The degree of integration and exclusivity that the worker has with the employer or client.
The intention of the parties regarding the nature and duration of the work relationship
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It is important to correctly classify the workers as employees or independent contractors, as it has significant implications for both the workers and the employers or clients. For example, employees are entitled to minimum standards of employment, such as wages, benefits, leaves, and termination notice, while independent contractors are not. Employers are responsible for deducting and remitting taxes, CPP contributions,
and EI premiums from the employees’ wages, while independent contractors are responsible for reporting and paying their own taxes and statutory contributions.
Employees and employers are also subject to different rules and procedures for resolving disputes or claims, such as human rights, health and safety, or wrongful dismissal
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4.
What are the sources of employment law? Where can they be found, respectively? Employment law is the branch of law that regulates the rights and obligations of employers and employees in the workplace. The sources of employment law can vary depending on the jurisdiction, but they generally include the following:
Statutes and regulations: These are laws enacted by the federal, provincial, or territorial governments that set out the minimum standards and rules for employment, such as wages, hours, leaves, termination, human rights, health and safety, and labour relations. Statutes and regulations can be found online on the official websites of the governments or their agencies, such as
Canada.ca
or
Ontario.ca
.
Common law or civil law: These are the legal principles and rules developed by judges through their decisions in previous cases. Common law applies in all provinces and territories except Quebec, where civil law applies. Common law or civil law governs issues such as contracts, negligence, fiduciary duty, and wrongful dismissal. Common law or civil law can be found online on the official websites of the courts or their databases, such as [CanLII] or [SOQUIJ].
Employment contracts and agreements: These are the written or verbal agreements between the employer and the employee that outline the terms and conditions of the employment relationship, such as duties, compensation, benefits, and termination. Employment contracts and agreements can be individual or collective (such as collective agreements for unionized employees). Employment contracts and agreements can be found in the possession of the parties or their representatives, or in some cases, filed with the relevant authorities, such as the [Ministry of Labour] or the [Canada Industrial Relations Board].
These are some of the sources of employment law, but there may also be other sources,
such as codes of practice, policies, or international conventions, that may apply depending on the nature and context of the employment relationship. Therefore, it is important for employers and employees to consult a legal professional for specific advice and guidance on their situation.
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5. What are the five obligations that are largely imposed by provincial statutes on employers? The five obligations that are largely imposed by provincial statutes on employers are:
To pay employees at least the minimum wage and overtime pay, and to provide them with pay statements and records
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To provide employees with statutory holidays, vacation, and leaves, such as sick leave, maternity leave, or family responsibility leave
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To ensure a safe and healthy workplace, and to comply with the occupational health and safety regulations and standards
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To respect the human rights and dignity of employees, and to prevent and address any discrimination or harassment in the workplace
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To give employees proper notice or pay in lieu of notice when terminating their employment, unless there is just cause for dismissal
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These are some of the obligations that are largely imposed by provincial statutes on employers, but there may also be other obligations depending on the specific province or territory. Therefore, employers should consult the relevant employment standards legislation or a legal professional for more information and guidance
6. Describe the importance of equity in the workplace. Equity in the workplace is the idea that all employees are provided with fair and equal opportunities based on their individual needs. Equity in the workplace is important for several reasons, such as:
It promotes a culture of diversity, inclusion, and belonging, where employees feel
valued, respected, and supported
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It enhances employee engagement, satisfaction, and retention, as employees are
more motivated, productive, and loyal when they are treated fairly
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It improves organizational performance, innovation, and reputation, as employees can leverage their diverse skills, perspectives, and experiences to achieve better results and outcomes
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Therefore, equity in the workplace is a key factor for creating a positive and successful work environment for both employers and employees.
7. In Queen vs Cognos, the court determined a test for negligent misrepresentation. Describe the test and how it may be applied. The test for negligent misrepresentation in Queen vs Cognos is based on the following five criteria
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There must be a duty of care based on a special relationship between the representor and the representee.
The representation in question must be untrue, inaccurate, or misleading.
The representor must have acted negligently in making the representation.
The representee must have relied, in a reasonable manner, on the representation.
The reliance must have been detrimental to the representee in the sense that damages resulted.
To apply the test, the court must examine the facts and circumstances of each case and
determine whether each criterion is satisfied.
For example, in Queen vs Cognos, the court found that the employer had a duty of care to the employee based on the hiring interview, that the employer made false and misleading representations about the nature and duration of the project and the position, that the employer was negligent in not verifying or disclosing the true status of the project and the position, that the employee relied on the representations in leaving his previous job and accepting the offer, and that the employee suffered damages when the project was cancelled and his position was terminated
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8. What is negligent hiring and how does it relate to the concept of due diligence? Negligent hiring is a legal claim that an employer is liable for the harm caused by an employee to a third party, if the employer knew or should have known of the employee’s risk of causing harm. Due diligence is the process of conducting reasonable investigations, such as background checks, reference checks, and screening tests, to verify the suitability and fitness of a potential employee.
Due diligence can help
employers avoid negligent hiring claims by showing that they exercised care and caution in selecting their employees
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