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CBL - CH9 - Workplace Law - Coggle Diagram

- - - - it is assessed through the substance of the relationship, including whether the business controls where, when and how the work is performed and whether the individual is free to have other clients.
- - - - business owners and employees should interact with honesty with one another, misrepresentations such as deliberate lies, can result in legal consecuences
        
        misrepresentation can make the employee be dismissed if he or she stated a different work experience or degree than the one she actually has, even if she's doing great work
        
        misrepresentation from the employer can also affect and make the business liable for damages under the tort of negligent misrepresentation. The employer has the obligation to ensure that all material statements made during the recruitment process are accurate.
        
        employers can be liable if they induce breach of contract if they knowingly induce the breach of an existing contract between two other parties.
    - - Restrictive covenants
        
        a clause in an employment contract that restricts the legal right of employees
        
        to engage in certain types of activities during employment and after it ends
        
        competing with the ex-employer
        
        soliciting customers from the ex-employer
        
        disclosing confidential information about the ex-employer
        
        Best practices
        
        include a clause in contracts in which a candidate verifies that they have no existing contractual obligations that prevent them from accepting a job at your business.
        
        ensure written employment contracts designate which party will be legally responsible if a former employer successfully enforces the restrictive covenant.
      - Checking references
        
        although the law imposes no general obligation to check references, an employer may nevertheless be liable for "negligent hiring" if it fails to verify the references of applicants for jobs that could expose others to harm.
        
        such as security guards of daycare workers, which are required to exercise a high standard of care in checking references.
        
        the employer can be liable for the employees wrongful actions, under vicarious liability.
  - - - an employee contract usually contains the following
        
        salary
        
        benefits
        
        starting date
        
        title
        
        job duties
        
        termination provisions
      - the policy manual
        
        provide a copy before the worker starts the job
        
        it contains policies according to discipline, probationary periods, absence, safety, and harassment
    - - just cause, justification for dismissal without notice based on an employee's conduct
      - pay in lieu of notice, payment as a substitute for receiving adequate notice where an employee is dismissed without just cause
      - reasonable notice, period of time an employee should be given between notification of dismissal and end of employment
      - It can be customized to serve the business, if the business controls the termination clause and tailors it to its needs.
    - - employees can be hired either permanently or for a fixed period of time both part-time and fixed-time
      - fixed term employees are called contract workers
      - if the contract is for 12 months or more, a statutory notice should be given.
      - Temps or temporary workers, are employees of an agency, and thus is the agency's responsibility to provide for the employees benefits and entitlements, and its also liable.
      - this can also include a termination clause if the employer wants to end the contract early.
    - - commonly last from 3 to 6 months, depending on the nature of the job
      - although statutory notice is required to be given after three months of service, so if the probationary period is six months, the employer should give the employee the statutory notice.
      - unless the dismissal occurs for reasons exempted from the statutory notice requirement, (wilful neglect of duty)
    - - non competition clauses
        
        limited to work in competing businesses, for a certain period of time, and within a geographic area. (its very difficult for a court to find enforceable).
      - non-solicitation clause,
        
        restrict and ex-employee's ability to solicit employees or customers of a former employer, (difficult to convince a court to find enforceable).
      - non-disclosure clauses,
        
        restrict and ex-employee's ability to use a former employer's confidential information (often enforced)
      - These must be proven by the employer that it makes sense to enforce them, they are normally not enforceable.
    - - Lack of consideration (and changing terms mid-contract)
        
        on every change to the contract there must be consideration involved and continuous work is not considered a valid consideration.
        
        Employment policies change will also require a consideration.
        
        how to achieve it?
        
        offer a one-time bonus signing, a raise in salary or a promotion that depends on the signature of the contract with the modifications
        
        provide the employee reasonable notice for change (similar to the notice of termination), explain the consequences of rejection, and if there's no acceptance, then the employer must give notice to the employee for termination, and once terminated offer the new contract.
      - Failure to meet minimum statutory standards
        
        the contract must be at least as favourable to employees as the minimum standards set by legislation, if a contracts fails to have the minimum standards in relation to wages or notice of termination provisions, then the clauses are void and unenforceable.
        
        if the contract contains an inadequate termination notice provision, the employer must compensate an employee by providing reasonable notice of termination or pay in lieu of notice, which is usually significantly more than the statutory entitlements.
  - - - employees have an obligation to provide notice of resignation
      - legal issues with resignation
        
        did the employee quit or was he fired?
        
        if the employee is dismissed without cause, without a reason based on the employee's conduct that is justifiable in law, they must provide notice or pay in lieu of notice.
        
        if the employee was given a choice between resigning or being dismissed, the court will probably find the resignation was not voluntary.
        
        an employee who resigns froma job because an employer changes a fundamental term of the employment contract may be able to raise a successful argument thatt they were constrictively dismissing him.
        
        an emplyee's resignation must be intentional and voluntary.
        
        the words "I quit" are not considered to be a voluntary resignation if an employee is provoked or distressed.
      - Best practices
        
        two to 4 weeks of written notice of resignation
        
        implement a consistent performance review program, with relevant documentation, for all workers
        
        if the employee is resigning, don't fire them, accept the resignation and request them to wait the resignation period not attending work, and that they will be paid throughout the period.
    - - employers are prohibited of having a mandatory retirement policy at age 65
    - - employers might normally be able to terminate employees as long as they provide advance notice or pay in lieu of notice, but if they have a case for dismissal, no notice is necessary.
      - Termination for (just) cause
        
        just cause to dismiss an employee when the employee's conduct is so serious that it fundamentally breaches the employment contract (whether written or oral) and thereby justifies dismissal without notice.
        
        common grounds such as dishonesty, insubordination, disobedience, sexual harassment, intoxication at work.
        
        misconduct such as premeditated theft, serious incidents of assault or sexual harassment, can constitute just cause even if it happens once.
        
        performance related conducts must usually occur more than once to support dismissal for cause
        
        progressive discipline is required before dismissal for just cause
        
        involves gradually increasing leves of discipline, from verbal warning to a written warning, a final written warning, and finally a dismissal.
        
        In unionized workplaces, progressive discipline steps are codified in the collective agreement and usually include an unpaid suspension after a written warning. In non-unionized workplaces, the unpaid suspension is not possible, it will lead to constructive dismissal.
        
        incompetence is a common reason for dismissal, but it needs to be proven. An employer must show that the employee fell below an objectively determined level of performance, that the standard was reasonable, and that the problem lies with the employee, not with other factors, such as a lack of adequate training. Generally, it must show that the employee is given sufficient time to improve their performance.
        
        Employers must have a consistent and objective performance appraisal process and to involve employees in the process.
        
        performance reviews must be fair, never vindictive, and they should be accurate; they should neither ignore nor exaggerate problems.
        
        performance reviews must be documented, including the employee's response to the review, if alleging just cause for dismissal, you should be prepared to prove that you took all reasonable steps to facilitate the employee's improvement and to help the employee meet your expectations.
        
        All disciplinary actions must be meticulously documented, so there is reliable written evidence of what has occurred, employers should also give employees the opportunity to respond to any allegations that you make before taking disciplinary action.
        
        Condonation, of misconduct occurs when an employer overlooks misconduct or takes no action against it; it gives employees the impression that their employer will tolerate the misconduct in the future. If you condone certain misconduct, you may be unable to rely on that incident in imposing discipline for future incidents.
      - Termination without (just) cause
        
        if you want to dismiss an employee, you need to give advance notice or a comparable severance package so that they have time to look for a new job while still on your payroll, if not, wrongful dismissal can be on the door.
        
        Employees are entitled to working notice or a severance package based on three possible sources
        
        employment contract that includes enforceable termination provision that governs notice of dismissal
        
        employment standards act 2000, which provides fairly short notice based solely on length of service
        
        absence of an enforceable termination provision, the common law, which requires the usually significantly longer "reasonable notice".
        
        how much notice time is reasonable? Bardal factors: length of service, their age, their job, their salary, the availability of similar employment
        
        reasonable notice can be a lengthy period under the common law, amounting to up to 24 months or more.
        
        a rule of thumb is 1 month per year, but this is only one factor.
        
        courts consider also whether an employee has fulfilled the common law duty to mitigate damages, meaning, employees are required to take all reasonable steps to find comparable alternative employment during the reasonable period
        
        wrongful dismissal damages
        
        when an employer fails to meet its contractual duty to provide adequate advance notice of termination.
        
        normally is seeking award of wages and benefits that the employer would have owed during the period of notice.
        
        employees can also ask for aggravated or moral damages, for additional damages of they have suffered actual losses as a result of the manner in which they were terminated
        
        Employees can also ask for punitive damages, mostly when the employer is reprehensible and deserving of punishment
        
        Constructive dimissal
        
        when the employer's treatment of the employee (or its tolerance of offensive conduct) makes continued employment intolerable and the employee is justified in leaving and claiming constructive dismissal.
        
        when the employer makes a fundamental change to an employment agreement without the employee's consent or without providing the employee with reasonable notice of the change.
        
        changes in job responsibilities
        
        changes in working conditions
        
        examples
        
        significant changes to benefit packages
        
        relocation of employees
        
        alteration of duties and responsibilities of employees
        
        changes in employees reporting structure
        
        imposition of new obligations, such as restrictive covenants on employees.
        
        if there's a 5% decrease of pay, across the board, then it could not be constructive dismissal.
      - Right to reinstatement
        
        employees right to return to their job, only available through collective agreement or statute. Unionized emplyees may be entitled to reinstatement if their emplyer dismisses them in contravention of the governning collective agreement.
        
        non-unionized employees might be reinstated if the employer dismisses them for exercising their rights under the ESA or various other statutes.
      - providing references
        
        as long as the information is truthful, you as an employer are not liable for defamation when providing references.
        
        moreover, employers providing a negative reference are further protected by the defense of "qualified privilege". This means that an employer providing a reference will not be liable if the views expressed are honestly held, based on reasonable grounds, and provided without malicious intent.
        
        providing a too positive a reference, can make you liable for negligent misrepresentation from a new employer who relies on your reference and suffers harm as a result.
- - - - if the business makes an employment decision in which a discrimination based on prohibited ground plays any part, unless one of the exeptions described below applies, you've infringed the code.
        
        it is irrelevant whether
        
        the prohibited ground was the only, or the primary favtor that you took into account
        
        it is irrelevant if you didn't knew you where discriminating
        
        it is irrelevant that the motives were not malicious.
        
        the crucial factor is the effect on the employee
      - narrow exemptions
        
        faith-based organization can stipulate that counsellors must be of that faith
        
        recreational club may hire only male attendants to work in the mens locker room
        
        Nepotism policy, allows an employer to discriminate in favour of, or against, their close relative or the close relative of employees.
      - the Duty to accommodate
        
        adverse impact discrimination, (constructive discrimination) a workplace policy that unintentionally affects certain groups in a detrimental, or negative way.
        
        the duty to accommodate, is based on the belief that it is unfair to exclude people from the workplace in a discriminatory fashion because their needs are different from those of the majority of workers.
        
        procedural and substantive dimensions
        
        procedural dimension requires an employer to explore accommodation options
        
        substantive dimension requires the employer to then show it fulfilled its duty to accommodate to the point of undue hardship
        
        situations commonly requiring accommodation
        
        disabilities
        
        physical and mental
        
        employers are not entitled to an employees diagnosis, but they are entitled to know the limitations that are placed on the employee's ability to do their job.
        
        a functional abilities form can be filled out by the employee's doctor to indicate what the person can and cannot do.
        
        Accessibility for Ontarians with Disabilities Act 2005
        
        establish and implement employment policies, procedures, and training related to accessibility in recruiting, hiring, retaining, and accommodating people with disabilities.
        
        Religious beliefs and practices
        
        includes dresscodes, break policies, work schedules, and religious leave.
        
        Pregnancy
        
        duty to accommodate a pregnant employee might require to move the employee to a safer place, a flexible work schedule, increase break times, a private and comfortable place to breastfeed her child or pump breast milk
        
        family caregiving obligations
        
        childcare and eldercare are included here
        
        the four part test to determine whether an employer has a duty to accommodate an employee's request based on family status and childcare
        
        child is under the employee's care and supervision
        
        the obligation at issue engages the individual's legal responsibility for that child, as opposed to personal choice. (attending to basic needs vs attending to a school concert)
        
        employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no solution is reasonable available.
        
        the impugned workplace rule interferes with fulfilling that obligation in a way that is not trivial.
      - BFOR Bona fide occupational Requirement
        
        rationally connected to job performance
        
        adopted in good faith
        
        reasonable necessary to accomplish a legitimate work-related purpose.
        
        the business will necessarily prove that it cannot accommodate a person without experiencing undue hardship.
        
        the point at which the cost of accommodating an employee substantially affects the economic health of the business or produces a substantial health and safety risk that outweighs the benefit of accommodation
      - Recruitment and Selection
        
        Job advertisements and application forms
        
        prevents employers from advertising or requesting information in a discriminatory fashion, they can ask only for applicant's name, address, education, and previous employment history.
        
        Job interviews
      - the same anti-discrimination and accommodation principles that apply during the recruitment and hiring process continue throughout your workplace relationship with your employees, you must make all decisions concerning promotions, training opportunities, rewards, job assignments, discipline, layoffs, and terminations on a non-discriminatory basis.
    - - Race
      - Ancestry
      - place of origin
      - colour
      - ethnic origin
      - citizenship
      - creed (religion)
      - sex (including the right to equal treatment without discrimination because of pregnancy)
      - sexual orientation
      - age (where the person is at least 1q8 years old)
      - record of offences (provincial offences or pardoned federal offences)
      - marital status
      - family status (covers parent and child relationships and includes biological parents, adoptive parents, and legal guardians)
      - gender identity
      - gender expression (how a person publicly presents or expresses their gender)
      - disability (this ground includes physical, mental, and psychiatric disabilities; drug or alcohol addiction; perceived disabilities; and disabilities for which workers' compensation benefits were claimed or received; it excludes minor, temporary illness to which the general public is susceptible, such as the flu or common cold)
    - - political convictions
      - social status
    - - verbal threats, intimidation, jokes, unwelcome remarks, and offensive pictures and posters
      - sexual harassment
        
        unwelcome expressions of sexual or romantic interest or physical contact, offensive remarks, ostensibly flattering remarks about physical appearance, inappropriate starting, offensive jokes, displays of offensive pictures or other materials, questions or discussions about sexual activities, and paternalistic comments that undermine the recipient's authority.
      - poisoned work environment, a workplace plagued with insulting or degrading commentary or actions related to a prohibited ground of discrimination under the HRC
    - - all applications alleging discrimination or harassment are filed directly with the Ontario HR tribunal, unless the application arises in a unionized workplace.
      - remedies for HR violations may include orders such as the following against an employer
        
        Pay compensation to the employee for actual lost earnings
        
        pay compensation to the employee for injury to dignity, feelings, and self respect (there's no upper limite)
        
        pay emplyees legal costs
        
        hire or reinstate the employee
        
        undertake staff training, such as in cross-cultural communications or sexual harassment
        
        implement anti-harassment policy
      - Ontario Human Rights code specifically prohibits reprisals, or actions taken against anyone who asserts their rights under the code.
- - - - work for 5 years
      - have an Ontario payroll of 2.5 million
      - 1 weeks pay for each year's service, for a maximum of 26 weeks.
- - - - right to participate in the joint health and safety committee, equal number of worker and management representatives, to meet and discuss health and safety concerns, review progress, and make recommendations to the employer on health and safety issues.
    - - only members of a joint health and safety committee who have undergone health and safety training and certification can initiate a stop-work order.
    - - the right to know to which hazards the worker is going to be exposed to, including training about safe use of machinery, equipment, and processes, as well as the right to know about hazardous substances at the workplace.
      - they also have to comply with the requirements of the WHMIS (workplace hazardous materials information system)