Employment Law: Week 10
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What are the 7 primary ways in which an employment relationship can come to an end?
- 1) Agreement of the Parties
- 2) Employer may terminate ther relationship by giving employees the requisite notice, or wages in lieu thereof
- 3) Summary Dissmisal
- 4) Employee Resignation
- 5) Breach of Unjust Discharge Legislation
- 6) Wrongful Dismissal
- 7) Frustration of Contract
1) Agreement of the Parties
Explain in more detail the general termination of employment contract through agreement of the parties?
The agreement made between the two parties must be made with express consent, and in accordance with general contract law principals.
1) Agreement of the Parties
Explain the significance of fixed term contracts?
The term of employment must be expressly stated and included in the contract itself
What happens if an employee finishes the performance of the contract early, and gets dismissed, then tries to sue for wrongful dissmisal?
This does not constitute wrongful dismissal or wrongful resignation
What if the employer terminates the employee before the work is finished in a fixed term employment agreement?
The employee could sue for breach of contract and would be entitled to damages
What must an employer do even in a seasonal work agreement before the termination of employment?
Give reasonable notice of termination
If a negotiated age requirment is agreed upon in the employment contract, can an employer suddenly terminate an employee ounce they have reached that age?
No they cannot, an employee is still entitled to reasonable notice of termination and wages in lieu thereof
What happens if the age passes and the employee and the employer agree that work can continue?
then they can no longer rely on the mandatory age retirement in contract. They waived their right to the term in the contract, and termination based on age would be a violation of the Ontario Hr Code for discrimination based on age.
What are the two sources of rules governing termination by due notice or wages in lieu thereof?
1) Notice Requirments under the ESA legislation
2) The common law requirments regarding notice to terminate
What is the primary factor effecting the amount of notice for termination that must be given under the ESA?
Seniority. The longer you have worked somewhere, the more notice you are entitled to
What are the individual notice requirments that must be given to an employee under the ESA for termination of employment or wages in lieu thereof?
note: ON EXAM
- 1 week = more then 3 months, but less then a year
- 2 weeks = more then a 1, but less then 3yrs
- 3 weeks = more then 3 less then 4yrs
- 4 weeks = more then 4 less then 5yrs
- 5 weeks = more then 5 less then 6yrs
- 6 weeks = more then 6 less then 7yrs
- 7 weeks = more then 7 less then 8yrs
- 8 weeks = 8 yrs or more
In lieu of Notice, how much must the employer pay the employee?
A lump sum equal to the employees regular wages
What can a employee do if an employer has breached the notice requirements?
Sue for statutory minimums, and damages.
What happens if you filed a claim for breach of reasonable notice, and your employer has already given you some notice (not adequate), and some wages compensation?
If you went to court for a breach of these requirments, and the employer has already payed out some of notice/wages, then that will be deducted from total damages.
What is the purpose of The Ontario Termination and Severance of Employment Regulations?
They list the circumstances in which an employer is excused from notice obligations.
What are 3 examples of circumstances in which notice of termination is excused?
1) employee whose employment is terminated after refusing an offer of reasonable alternative employment with the employer.
2)A construction employee
3)An employee on a temporary lay-off
In the situation where an employee takes a built-in-time off, such as a Sabbatical (paid leave for a colledge proffessional) for a professor, do they loose seniority upon return?
No, this is because there is still a functional contract, and you are still considered employed. Sabbatical is part of the contract.
What happens if your employment is terminated due to the discontinuance of all or part of the employers business or operations?
In the situation where an employee is dismissed due to the employer's company permanently discontinuing, and where 50 or more employees have been laid off within th 6 months of the collapse of the company, and the employee has been working for the company for 5 years or more, then that employee is entitled to 1 week of severence pay for every year they worked up to a maximum of 26 weeks.
If a company permenantly discontinues, and there is not a mass termination, can an individual still get severence pay? Explain.
Yes, can still be entitled to severence pay if the employer has a payroll of 2.5 million or more
What do the provisions in the ESA that discuss mass termination and reasonable notice say?
- 50 to 200 employees terminated = 8 weeks notice
- 200 to 500 employees terminated = 12 weeks notice
- 500 or more employees terminated = 16 weeks notice
What is the exception to the mass termination notice provision in the ESA
The number of terminated employees must be more then 10% of the employees employed over the last three months. If not, then the mass termination notice provisions do not apply. Also if not related to the permanent discontinuance of all/part of the business.
What are the two common law requirements that the courts look at when dealing with notice of termination?
- 1. Express notice of Termination Clauses
- 2. Implied Terms Reflecting the Parties Factual Excpectations about the Notice Period.
What do the courts do when interpeting express notice of termination clauses? Explain why?
They often interpret the terms contra preferentum. They do this especially when the terms are ambiguous. Because the courts recognize the employers superiority in bargaining power, they will attempt to circumvent the harsh terms.
In what case does the Reasonable Notice of Termination test come from at common law?
Bardal v. The Globe and Mail Ltd. (Ont. high Court 1960)
What are the five factors that the court considers at common law when deciding on a reaonable notice period for termination of employment, and comes out of Bardel?
- 1) Type of employment
- 2) Length of Service
- 3) Age
- 4) Availability of similar employment given persons experience level
- 5) Training and qualification
why did the courts rule the way they did in Bardel?
They did so to discourage employers from dismissing long term employees
What are 6 Factors the Court considers? Discuss each one.
What are 6 factors that the courts will consider in determining reasonableness of notice?
1) Availability of replacement work: Cushion rationa. (Looking at the general state of the labor market for the need of the specific skills. Then determine likelyhood of employment.) Notice goes up if not likely, notice goes down, if likely.
2) Status of Job: If the stigma of a high status employee being unemployed is negative and makes it harder to find work, then may go up.
3) Length of service: notice period goes up for every 10 months of employment
4) Employees Age
5) Quality of an employees work record: They will look at employee's blameworthiness. The courts now use an all or nothing approach with regards to this factor
6) The Wallace Doctrine and other residual factors: This is not an exaustive list.
What is the Wallace Doctrine?
In Wallace (1997 SCC), the court held that the period of reasonable notice can be extended ift he employer handles the dissmisal in a callous or insensitive manner or in bad faith.
What is the purpose of the wallace doctrine?
It is intended to punish the employer for acting in bad faith
How much could the wallace doctrine extend the reasonable notice period for termination?
Average increase is 33% of the total potential of notice period.
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