LW1210+-+Canadian+Labour+Law

=**LW1210 - Canadian Labour Law**=

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


 * 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

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


 * **Course Information [[file:Labour Law Outline.docx]]** || media type="youtube" key="2e3D47q6Vlg" height="65" width="120" ||
 * **Unit 1 -**
 * The Canadian** **System of Labour and Employment Law**

|| Video media type="youtube" key="MQJpDgWjBdE" height="65" width="120" || Two major Human Rights Acts govern hiring in Nl.
 * Chapter 1 - Overview of Legal Framework **
 * __ What is a Statute? __
 * [|Canadian Statutes]database
 * How are Statutes made in Canada?
 * Federal Jusrisdiction Labour Statutes
 * Canada Labour Code
 * Canadian Human Rights Commission/Act
 * NL Provincial Government Labour Statutes
 * NL Labour Relations Act
 * NL Human Rights Commission/Act
 * The Canadian Charter of Rights and [|Freedoms]
 * Interpreting Section 15 of the Charter of Rights & Freedoms
 * The Canadian Court System
 * Administrative Tribunals
 * Significant Common Law Cases in Canada
 * Contract Law
 * Tort Law || Note Sheet
 * **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**
 * Canadian Human Rights Commission/Act- covers federal regulated businesses and employees
 * NL Human Rights Commission/Act- covers provincially regulated businesses and employees

media type="youtube" key="0FS6A_dRlDg" height="65" width="120" || || Video media type="youtube" key="H9W53VOC9Sg" height="65" width="120" ||
 * 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. || [[file:Labour Law Unit 1 pt 2of3 Chapter 2 HUMAN RIGHTS ISSUES IN HIRING.docx]] || 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


 * **Unit 2 -Employment Law** || Note Sheet

Unit Overview || Video media type="youtube" key="yQB_b6g_sFs" height="65" width="120" || 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:
 * **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 || [[file:Labour Law Unit 2 pt 1 The Employment Contract.docx]] || media type="youtube" key="xdRYjGHAdhc" height="65" width="120" ||
 * **Chapter 5 - Human Rights through the Course of Employment**

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 || || media type="youtube" key="_T99eR5Gr4A" height="65" width="120" || Quick guide to NL Employment Standards PDF In NL Employment standards are laid out in the Labour Standards Act Key Provisions: Administration and Enforcement
 * **Chapter 6 - Employment Standards**
 * 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
 * Filing a complaint || [[file:Labour Law Unit 2 pt 3 Employment Standards.docx]] || media type="youtube" key="E93k2aAgtNs" height="65" width="120" ||
 * **Chapter 9 - Equity in the Workplace**
 * Chapter 9 -Pay Equity - Employment Equity**
 * Define Pay Equity and Discuss how it is achived
 * __ NL Employment Standards __
 * NL Pay Equity
 * Pay Equity in NL - Court Case
 * Equal Pay for Equal Work** || [[file:Labour Law Unit 2 pt 4 Equal Pay for Equal Work.docx]] || media type="youtube" key="mz1B1w--jxM" height="65" width="120" ||
 * **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 Better to work or Pay in Lieu Employer chooses – can combine Separation Package Lump sum vs payout Constructive Dismissal Wrongful Dismissal
 * 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

These key topics will be covered in the exam:
 * Chapter 15 Dismissal without Cause**
 * 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.


 * || [[file:Labour Law Unit 2 pt 5 Termination of the employment contract.docx]] || media type="youtube" key="YEzlxSh5C38" height="65" width="120" ||


 * 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:** General Material
 * 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.
 * <span style="background-color: #fafafa; color: #353535; font-family: verdana,sans-serif;">Discuss the common contractual terms that should appear in all written employment contracts.
 * <span style="background-color: #fafafa; color: #353535; font-family: verdana,sans-serif;">Be aware of the NL employment standards legislation
 * **Unit 3 of the Course - Labour Law** ||  ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 * <span style="color: #444444; font-family: Arial,Helvetica,sans-serif; font-size: 12.8000001907349px;">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 || [[file:Stage 1 - Organized Labour In Canada.pptx]] ||  ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 * Unit 3 Stage 2 - Organizing a Union in Canada || [[file:Stage 2 - Organizing a Union in Canada + Terminology.pptx]] ||  ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 * Unit 3 Stage 3 - Negotiating a Collective Agreement || [[file:Labour Law Unit 3 Stage 3 m - The Negotiation Process.pptx]] ||  ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 * Unit 3 Stage 4 - Administering a Collective Agreement || [[file:Labour Law Unit 3 Stage 4 - Administering a CA In Canada.pptx]] ||  ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 * **Unit 4 of the Course - Labour Legislation**
 * **Unit 4 of the Course - Labour Legislation**
 * Canada Labour Standards (Federal)
 * Newfoundland and Labrador Labour Legislation || [[file:Labour Law Unit 4.pptx]] ||  ||


 * **<span style="font-family: Calibri,sans-serif; font-size: 14pt;">L ** ||  ||   ||




 * 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.