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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
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=== 2. Employment Contract Considerations === | === 2. Employment Contract Considerations === | ||
As discussed earlier, the employer-employee relationship is contractual. Every employee has | As discussed earlier, the employer-employee relationship is contractual. Every employee has an employment contract, even if a written document does not exist. | ||
Most employment contracts are contracts of indefinite hiring. This means that no definite term of employment was set out at the time of the contract, and there is an implied term that either party may terminate the contract upon giving “reasonable notice”. The implied term to give reasonable notice can be overridden by an express notice provision | Most employment contracts are contracts of indefinite hiring. This means that no definite term of employment was set out at the time of the contract, and there is an implied term that either party may terminate the contract upon giving “reasonable notice”. The implied term to give reasonable notice can be overridden by an express notice provision limiting the amount of notice the employer is obligated to give the employee. Accordingly the courts will assume that an employee should receive “reasonable notice” prior to termination unless the contract explicitly says something different. If there is an express notice provision in the employment contract, then that clause is binding, unless there is a reason for it to be invalid (see Section V.C.2(c) and (d) Invalid Contracts, below). | ||
If reasonable notice is not given, then the contract is breached, and courts can award damages in the form of compensation that would have been paid during that reasonable notice period. However, if there is just cause for dismissing an employee, no damages need be paid, and no notice need be given. Note that any wage claims that crystallized before the termination of the contract are not eliminated by just cause for dismissal. Just cause only relieves the employer from notice and severance pay requirements, but not liability for past wages, etc. | If reasonable notice is not given, then the contract is breached, and courts can award damages in the form of compensation that would have been paid during that reasonable notice period. However, if there is just cause for dismissing an employee, no damages need be paid, and no notice need be given. Note that any wage claims that crystallized before the termination of the contract are not eliminated by just cause for dismissal. Just cause only relieves the employer from notice and severance pay requirements, but not liability for past wages, etc. | ||
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==== a) Successive or Expired Fixed Term Contracts ==== | ==== a) Successive or Expired Fixed Term Contracts ==== | ||
If an employee had successive fixed term contracts, the courts may find there is in fact an indefinite term of employment; see ''Ceccol v Ontario Gymnastic Federation'' (2001), 55 OR (3d) 614. If there was a fixed term contract and the employee continued to work after the term’s expiration, the contract then becomes an indefinite contract. If the employee had an indefinite contract, but then signed a fixed-term contract, determine whether the new contract is valid; see | If an employee had successive fixed term contracts, the courts may find there is in fact an indefinite term of employment; see ''Ceccol v Ontario Gymnastic Federation'' (2001), 55 OR (3d) 614. If there was a fixed term contract and the employee continued to work after the term’s expiration, the contract then becomes an indefinite contract. If the employee had an indefinite contract, but then signed a fixed-term contract, determine whether the new contract is valid; see Section V.C.2(c) and (d) Invalid Contracts, below. | ||
==== b) Consideration ==== | ==== b) Consideration ==== | ||
Once a job offer is made and accepted, a contract is in place (though as discussed above, it may be unwritten). In order to change the terms of the contract after it is in place, there must be fresh consideration flowing from each party to the other | Once a job offer is made and accepted, a contract is in place (though as discussed above, it may be unwritten). In order to change the terms of the contract after it is in place, there must be fresh consideration flowing from each party to the other. Consideration in contract law is the benefit one party receives from another as a result of entering into a contract with another party. This means that to change an existing contract, the new contract must contain a new benefit for both the employer and the employee. Because of this, an entire written contract might be invalid if the contract was imposed on the employee after they had already accepted the job offer: the employee would already have a contract, and the written contract would need to have some new benefit, or “fresh consideration”, for the employee. Students should compare the signature dates on the written contract to the actual start dates. | ||
==== c) Invalid Contracts – Vagueness or Ambiguity ==== | ==== c) Invalid Contracts – Vagueness or Ambiguity ==== | ||
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Other general rules regarding contracts may also invalidate the contract, such as duress, undue influence, and unconscionability, but these occur less frequently. | Other general rules regarding contracts may also invalidate the contract, such as duress, undue influence, and unconscionability, but these occur less frequently. | ||
Under certain circumstances, employers and employees cannot use the above rules to invalidate a contract for their own benefit. If a new contract is imposed in which all the benefit is to the employee, the employee cannot have the contract invalidated for lack of fresh consideration to the employer in order to avoid a severance provision or other provision of the contract. Additionally, the employer cannot | Under certain circumstances, employers and employees cannot use the above rules to invalidate a contract for their own benefit. If a new contract is imposed in which all the benefit is to the employee, the employee cannot have the contract invalidated for lack of fresh consideration to the employer in order to avoid a severance provision or other provision of the contract. Additionally, the employer cannot back out of a contract that only gave benefits to the employee, due to lack of fresh consideration to the employer. | ||
=== 3. Without Cause v. Just Cause Dismissal === | === 3. Without Cause v. Just Cause Dismissal === | ||
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Without cause dismissals and just cause dismissal are both express dismissal. An employer tells the employee they are being dismissed, generally by having a meeting and providing the employee with a letter of dismissal. | Without cause dismissals and just cause dismissal are both express dismissal. An employer tells the employee they are being dismissed, generally by having a meeting and providing the employee with a letter of dismissal. | ||
=== 4. Without Cause Dismissal and Reasonable Notice === | === 4. Without Cause Dismissal and Reasonable Notice === | ||
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*16 weeks if 301 or more. | *16 weeks if 301 or more. | ||
If an employee is not covered by a collective agreement, these notice requirements apply in addition to the statutory minimum for individuals. Exceptions to these guidelines (ss 63 and 64), to which minimum notice requirements do not apply, are laid out in section 65 of the Act. No minimum notice or compensation is required of the employer by the ''ESA'' when the employee: | If an employee is not covered by a collective agreement, these notice requirements apply in addition to the statutory minimum for individuals. | ||
Exceptions to these guidelines (ss 63 and 64), to which minimum notice requirements do not apply, are laid out in section 65 of the Act. No minimum notice or compensation is required of the employer by the ''ESA'' when the employee: | |||
*has not worked for a consecutive period of three months; | *has not worked for a consecutive period of three months; | ||
*quits or retires; | *quits or retires; | ||
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However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | ||
Reasonable notice is an entitlement to assist the employee. In Michela v. St. Thomas of Villanova Catholic School 2015 ONCA 801, the Ontario Court of Appeal held that the financial health of a company does not reduced its notice obligations to employees. | |||
==== d) Calculating Reasonable Notice ==== | ==== d) Calculating Reasonable Notice ==== | ||
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Additionally, the UBC Law Library and many other law libraries hold publications with tables of cases sorted by job type, such as the Wrongful Dismissal Practice Manual by Ellen E. Mole (which is also found on Quicklaw). Comparing the Bardal factors of the employee in question with those of previous cases using either of these methods can assist in finding an appropriate range for the reasonable notice period. As a starting point, you can ask the particular employee how much time it would take or has taken to find similar work for similar pay. | Additionally, the UBC Law Library and many other law libraries hold publications with tables of cases sorted by job type, such as the Wrongful Dismissal Practice Manual by Ellen E. Mole (which is also found on Quicklaw). Comparing the Bardal factors of the employee in question with those of previous cases using either of these methods can assist in finding an appropriate range for the reasonable notice period. As a starting point, you can ask the particular employee how much time it would take or has taken to find similar work for similar pay. | ||
==== e) Damages for all | ==== e) Extensions to Notice Period ==== | ||
There is case law that supports the principle that more vulnerable employees, for example due to injury or illness, are entitled to more notice. | |||
For example, the employee’s notice period was increased from 5 to 8 months in Pakozdi v. B & B Heavy Civil Construction Ltd., 2016 BCSC 992 as a result of the “vulnerability” of an employee at the time of dismissal due to a medical condition. | |||
Generally, the maximum reasonable notice period is 24 months. In exceptional circumstances, such as very long services cases, courts can award notice periods beyond 24 months. Markoulakis v Snc-lavalin Inc., 2015 ONSC 1081 http://www.canlii.org/en/on/onsc/doc/2015/2015onsc1081/2015onsc1081.html | |||
==== f) Damages at Common Law- Fixed Term Contracts ==== | |||
Fixed term contracts have a defined end date. In the normal course, fixed term contracts simply end when the term expires, or they are terminated in accordance with termination provisions in the fixed term contract itself. Reasonable notice is not normally required to end a fixed term contract. | |||
If an employee, dependent contractor, or independent contractor has a fixed-term contract, and is dismissed before the end date of the contract, they may be able to claim damages for a breach of the contract. | |||
Determine whether the contract itself specifies the conditions under which the employer can dismiss the worker, and what amount of notice or severance is required. If this is specified, and the contract and termination clause are valid (see Section V.C.2(c) and (d) Invalid Contracts), this will generally be determinative. | |||
If the contract does not specify the conditions of dismissal, or if the contract or is the termination clause is invalid, the worker may be able to claim all the wages that they would have earned for the remainder of the contract. (Canadian Ice Machine v. Sinclair, [1955] SCR 777). | |||
After determining the damages the worker may be entitled to, return to Section IV.D.1: Termination of Employment Checklist. | |||
==== g) Calculating Damages for Wages, Benefits, Pension Plans, and Bonuses ==== | |||
Employers are required to provide employees with a reasonable notice of dismissal. This could be provided by advance notice, in which case the employee would work for the prescribed amount of time, and continue to receive all elements of his compensation, such as wages, benefits, pension, car allowance, etc. | Employers are required to provide employees with a reasonable notice of dismissal. This could be provided by advance notice, in which case the employee would work for the prescribed amount of time, and continue to receive all elements of his compensation, such as wages, benefits, pension, car allowance, etc. | ||
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Courts have a wide discretion to determine the appropriate damages based on the evidence of the plaintiff’s pre-dismissal earnings (''Davidson v Tahtsa Timber Ltd'', 2010 BCCA 528). If an employee’s earnings have varied in the years prior to dismissal, some courts in BC have calculated damages by averaging the employee’s annual wages (see ''Krewenchuk v Lewis Construction Ltd'', [1985] BCJ No 1553 (SC). Where remuneration is based on an annual salary and not an hourly rate, a court may still assess damages on the basis of the average salary paid in the years prior to dismissal (see ''Goodkey v Dynamic Concrete Pumping Inc'', 2004 BCSC 894) | Courts have a wide discretion to determine the appropriate damages based on the evidence of the plaintiff’s pre-dismissal earnings (''Davidson v Tahtsa Timber Ltd'', 2010 BCCA 528). If an employee’s earnings have varied in the years prior to dismissal, some courts in BC have calculated damages by averaging the employee’s annual wages (see ''Krewenchuk v Lewis Construction Ltd'', [1985] BCJ No 1553 (SC). Where remuneration is based on an annual salary and not an hourly rate, a court may still assess damages on the basis of the average salary paid in the years prior to dismissal (see ''Goodkey v Dynamic Concrete Pumping Inc'', 2004 BCSC 894) | ||
=== 5. Just Cause Dismissal === | === 5. Just Cause Dismissal === | ||
