LW1210 - Canadian Labour Law


RESOURCE TEXT: Filsinger, K. (2009). Employment law for business and human resources professionals (2nd ed.).
Toronto ON: Emond Montgomery Publications. ISBN-13: 9781552393536

INTRODUCTION:

This course will examine the ever changing subordinate legislation, statute and common law in Canada that deals with union-management relations and interactions, as well as the relations and interactions between individual (non-unionized) employees and their employers. The course is designed to provide students with a current overview of the Canadian system of labour and employment law. The student will explore employment law; labour law; and statute/subordinate legislation for labour and employment law. Students will have the opportunity to apply and research various employment and labour law legislation and cases.

MAJOR TOPICS:

  1. The Canadian System of Labour and Employment Law
  2. Employment Law
  3. Labour Law
  4. Statute and Subordinate Legislation for Labour and Employment Law

EVALUATION:
  1. Employment Law Discussion Postings 20%
    Research Paper/Presentation || 20% ||
    Mid-term Exam || 30% ||
    Final Exam || 30% ||


Course Information

Unit 1 -
The Canadian System of Labour and Employment Law

Chapter 1 - Overview of Legal Framework
Note Sheet

Video

This next section of the course focuses on the Hiring Stage of the employment process. HR practitioners need to be aware of their legal obligations and rights when seeking qualified individuals.
Chapter 2 - Human Rights issues and the Hiring Process
Two major Human Rights Acts govern hiring in Nl.

  • When making a hiring decision we have to have some basis to decide who to select for the position.
  • We need to make this decision on Bona Fide Occupational Qualifications (BFOQ's) - or 'deemed legitimate' discrimination
  • To be a BFOQ, a job requirement must be related to Knowledge, Suitability, Job Requirements.
  • There is a three part test for BFOQ
    • 1. It must be adopted for a purpose connected to the performance of the job
    • 2. It must be adopted in the honest belief that it is necessary to legitimately do the job
    • 3. it must be reasonable to accomplish the purpose
  • There are key prohibited grounds of discrimination spelled out for each jurisdiction.
  • There are key exemptions, where discrimination is allowed
  • Job interviews should use a structured format to limit the possibility of discrimination
  • Once a conditional offer of employment is made, certain questions that are otherwise prohibited can be asked.

Video

Chapter 3 - Employment Issues found in Common Law
  • Key areas of Common Law liability
    • Misrepresentation of the job to candidates by the potential employer
    • Misrepresentation by the candidate of material issues to the employer
    • Misrepresentation by executive search firms
    • Inducement to come to a job by aggressive recruiting
    • Restrictive covenant placed on the employee during employment and after employment
    • Anticipatory breach of contract
    • Not properly checking references
  • Defining the work relationship
    • Employers must be sure to distinguish between and employee and an independent contractor
      • there is a basic series of tests for determine whether of not a person is an employee
        • Control test
        • Risk Test
        • Organization test
        • Tools test
        • Durability and exclusivity of the relationship test
      • employers must be careful to ensure independent contractors remain as such by putting appropriate actions in place.
    • Employees can be classifies as Permanent Full Time, Permanent part-time, Temporary, Casual or Agency employees
Note Sheet

Video


Unit 2 -Employment Law
Note Sheet

Unit Overview
Video

Chapter 4 - The Employment Contract
  • There are key advantages of written employment contracts:
    • Reduces risk of misunderstandings
    • Addresses contentious issues early
    • Reduces uncertainty
  • The higher the job level, the more formal the employment contract should be.
  • Written employment contacts are much more likely to be enforceable if one can show:
    • There was consideration - make sure employees sign the contract before starting work or consideration may not be there
    • there is equality of bargaining power
    • the contract is not obsolete
    • if all minimum employment standards are met
    • if there is clear, unambiguous language.
  • Employment Contracts should ideally contain the following clauses:
    • A job description
    • A description of the remuneration paid
    • the term of the employment contract (if not continuous)
    • A termination provision
    • The length of the probationary period
    • any need for relocations
    • any benefits offered
    • any restrictive covenants
    • who own intellectual property
    • which jurisdiction is applied
    • any unique corporate policies
    • an "Entire Agreement" clause that states that the contract is the ONLY agreement between the parties.
    • a specification if seniority is carried from a previous job
    • a sever ability clause that allows the rest of the agreement to stand if part of it is removed/invalidated.
    • a golden parachute - what the employee gets in the event of termination of the contract


Chapter 5 - Human Rights through the Course of Employment
The issue of Discrimination in the workplace
Types of discrimination
Direct discrimination
Adverse Impact Discrimination (Constructive Discrimination)
For an employer to successfully defend a discriminatory standard or rule the employer’s decision must pass a three part test:
1. There is a rational connection between the purpose for which the standard was introduced and the objective requirements of the job
2. The standard was adopted because it was honestly considered to be a requirement of the job that is necessary for its performance
3. The standard was reasonable necessary to accomplish the legitimate work-related purpose. The employer must show it was Impossible to accommodate without undue hardship on itself.
Recommended course of action for employers:

Duty to Accommodate
Individualization
Dignity
Inclusion/Integration

Undue Hardship
1. cost
2. outside sources of funding, if any
3. health and safety requirements, if any.

Fulfilling the duty to accommodate
Employer’s duties to Employees with disabilities
Employees’ duties
Employees with drug and alcohol issues
Employee’s Religious beliefs and practices
Employees Pregnancy and Breast feeding needs
Employees Family needs

On the Job Drug & Alcohol Testing
Workplace Harassment
The Human Rights Complaints Process
Step One - Investigation Phase
Step Two - Mediation
Step Three - Report
Step Four - Board of Inquiry Phase
Step Five – Decision
Step Six - Appeal Phase


Chapter 6 - Employment Standards
Quick guide to NL Employment Standards PDF
In NL Employment standards are laid out in the Labour Standards Act
Key Provisions:
  • Minimum Wages
  • Hours of Work
  • Overtime
  • Vacation
  • Public Holidays
  • Statutory Leaves of Absence
    • Parental Leave
    • Emergency Leave
    • Family Medical Leave
    • Employee Rights during Leaves
  • Lie detector Tests
Administration and Enforcement
  • Filing a complaint


Chapter 9 - Equity in the Workplace
Chapter 9 -Pay Equity - Employment Equity
Equal Pay for Equal Work


Chapter 14 - Dismissal with Cause and


Dismissal
What is “reasonable” notice?
Provided that a dismissal does not infringe on a persons rights an employee can be dismissed with notice or pay in lieu
There is no right of reinstatement for wrongful dismissal
Employer has an implied duty to provide reasonable notice

Factors to determine reasonableness
  • Statute
  • Frustration of contract
    • 2 year rule for sick employee
    • Employees age
    • Employees position
    • Employees length of service
    • Employees level of compensation
    • Available similar employment
Better to work or Pay in Lieu
Employer chooses – can combine
Separation Package
Lump sum vs payout
Constructive Dismissal
Wrongful Dismissal

Chapter 15 Dismissal without Cause
These key topics will be covered in the exam:
  • How does one define reasonable notice under Common Law?
  • Pros and Cons of working a notice versus pay in lieu
  • Properly Structuring a separation package
  • Understand the employee’s duty to mitigate damages arising from a dismissal
  • The concept of constructive dismissal – Under what circumstances can it occurs?
  • Strategies for avoiding accusation of Wrongful dismissal & creating effective procedures for dismissal.

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Midterm Exam

The Midterm Exam is Thursday evening at your respective location.
It will be an online invigulated exam the covers Units 1 and 2, that includes material in Chapters 1,2,3,4,5,6,9, 14 & 15
FORMAT: 35 Multiple Choice @ 70%, and a Choice of 3 of 4
Short Answer questions worth 10% each
A reminder that I have posted notes on all of these chapters and video vignettes will be there for all these units before the end of the week. I have a summary of all of these videos and notes in Print Friendly format on my course Wikipage at: http://paultilley.wikispaces.com/ . Look under the LW1210 link
The Key Objectives to be tested are as follows:
  • Discuss the major sources of employment law
  • Discuss how laws are created and interpreted in Canada
  • Describe and discuss the prohibited grounds of discrimination in Canada
  • Discuss the circumstances (exceptions) where discrimination is permitted in Canada
  • Define what is meant by the following Employment Law related terms
Misrepresentation
Charter Rights
Restrictive Covenants
Affirmative action
Negligent Hiring
Conditional Offer of employment
Inducements
Independent Contractor
Bona fide Occupational requirement

  • Assess the key common law issues related to hiring
  • Discuss why employment contracts should be written.
  • Discuss the common issues that can arise in a written employment contract that may make it unenforceable.
  • Discuss the common contractual terms that should appear in all written employment contracts.
  • Be aware of the NL employment standards legislation


Unit 3 of the Course - Labour Law












Unit 3 - In the second half of the course, we will discuss those situations where an employee has appointed a representative, in the form of a trade union, to bargain collectively on his or her behalf and on behalf of all other employees that are members of a bargaining unit. We will be discussing the process for the formation of a union, the collective bargaining process and how a Collective Agreement is administered in the workplace. As well we will look at the differences in collective bargaining in the public sector vs the private sector.











Unit 3 Stage 1 - The History and the Structure of Unionization in Canada











Unit 3 Stage 2 - Organizing a Union in Canada











Unit 3 Stage 3 - Negotiating a Collective Agreement












Unit 3 Stage 4 - Administering a Collective Agreement












Unit 4 of the Course - Labour Legislation
General Material




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NLHR.jpg

Case

Alan M. Slater (“Slater”) is a professional mechanical engineer who was fired from his job with Sandwell Inc. (“Sandwell”) because of a lack of work. He sues for damages for wrongful dismissal.

Slater was hired in October 1989 by Sandwell as a manager in its engineering department, specifically to assume responsibility over its mechanical and electrical engineering divisions. Sandwell is in the business of providing engineering design and management services. At the time he started working for Sandwell, Slater was 56 years old and had a considerable amount of professional experience and a correspondingly impressive reputation in the engineering community. Slater refers to himself as an industrial engineer, having devoted his professional life to designing or renovating factories, designing production processes and materials handling systems and solving other industrial problems. Slater’s work history, together with his demeanour as a witness, makes it clear that he is a serious, talented and hard-working man.

After arriving in Canada from England in 1955, Slater worked as a professional engineer for various companies such as Dupont, Stelco and Domtar. By 1989, at the point when he was hired by Sandwell, Slater had worked for three years for a company known as Giffels. Sometimes in early 1989, Slater decided that he wanted more of a managerial position. He therefore contacted an employment agency that advised him that Sandwell was looking for an engineering manager. Slater pursued this opportunity and twice met with Mr. Weiss (“Weiss”), the then manager of operations at Sandwell. Negotiations ensued over issues primarily relating to remuneration. Ultimately, Sandwell submitted a written offer of employment dated October 2, 1989 and, by executing the letter, Slater accepted the position of operations manager at an annual salary of $80,000.

The letter agreement dealt with various contractual terms between the parties, including probation and termination. There was a three-month probationary period and during the first 24 months of the employment relationship, either party could terminate the contract upon giving two calendar weeks’ written notice to the other. As is demonstrated by Sandwell’s 1990 organization chart, Slater, upon being hired, occupied the position of manager of all mechanical and electrical engineering, and reported directly to Weiss. In this capacity, Slater supervised approximately 25 people and he was involved in a number of high profile projects at Sandwell, particularly involving the aerospace industry.

In 1991, the Toronto office was reorganized. Weiss was replaced as operations manager by Mr. Klicius. A new organization chart was released identifying Slater as head of mechanical engineering only. Slater was not aware of this change until the organization chart was released.

In September 1991, a further revised organization chart was released identifying a Mr. Gruel (“Gruel”) as head of mechanical engineering with Slater reporting to Gruel. This effectively demoted Slater to part of the engineering team with no managerial responsibility. Again, Slater was not forewarned of this change. Shortly thereafter, on November 29, 1991, Slater received a letter advising him of his termination effective January 10, 1992. Sandwell gave Slater six weeks’ notice but with no opportunity for relocation within Sandwell or offer of any further assistance other than the possibility that Sandwell may not have to follow through with the termination if, within the six weeks, the company was able to secure more work.

Slater sues for damages for wrongful dismissal.