Legal, Social, Political Environment

ABC Test

• used to determine worker status

• The worker is an employee unless the business can prove:

  • worker is free from control

  • worker performs work outside the usual course of the business

  • the worker is customarily engaged in an independently established trade

• California law

Bill 148

• 2017 Ontario legislation

• Amended the Employment Standards Act

• Addressed precarious employment

• increased minimum wage, equal pay for part time, new scheduling rules, increased vacation entitlement, paid personal emergency leave days

Bona Fide Occupational Requirement

• Qualification that may appear discriminatory but is reasonably necessary for the performance of the job

• Must pass the three point test established in the Meiorin (firefighter) case to be considered legitimate

BNA Act

• divided responsibilities between federal and provincial governments

• Sections 91 & 92 gave provinces authority over ‘poverty and civil rights’ which later was interpreted to include most employment law

California Prop 22

• Classified app-based drivers as independent contractors, overriding the ABC test for workers but providing access to certain benefits

Canada pension plan

A compulsory federal pension plan financed by equal employer and employee contributions on earnings up to a specified annual ceiling

Collective Bargaining Legislation

• one of the three legal regimes governing employment

• applied specifically to unionized employees

• example: ontario labour relations act (OLRA)

Common Law of Employment

• one of the three legal regimes governing employment

• applicable to individual employment contracts in the absence of specific legislation

• establishes principles such as the requirement for reasonable notice upon termination

Constructive dismissal

• When an employer makes substantial changes to the terms and conditions of employment without the employee’s consent —> forcing resignation

• employee can resign and sue for wrongful dismissal

Duty to accommodate

• Legal obligation of an employer to make reasonable efforts to alter the workplace to suit an employee’s needs related to prohibited grounds of discrimination

• extends to the point of ‘undue hardship’ for the employer

• disability, creed, sex, etc

duty to mitigate

• legal obligation of a wrongfully dismissed employee to take active steps to find new, comparable employment to minimize their losses

• if they don’t, employer can argue against them

Dynamex case

• established the ABC test to determine whether workers are employees or independent contractors

• 2018 California Supreme Court case 

Employment equity

Policies that address occupational segregation by setting hiring targets for designated under-represented groups 

• women, visible minorities, aboriginal peoples, persons with disabilities 

Employment insurance

• A compulsory federal insurance program financed by employee and employer contributions (like a tax)

• Provides temporary income support benefits to workers who lose their jobs

Employment Standards act

• Sets out the minimum rights and responsibilities for most employers and employees

• Covering areas like minimum wage, hours of work, vacation, statutory holidays, leaves,and  termination notice 

• Statutory law in Ontario

• ESA

Equal Pay for Equal Work

• Under the Employment Standards Act (ESA)

• Addresses pure wage discrimination

• Prohibits an employer from paying male and female employees different wages for performing substantially the same work 

Federal jurisdiction

• Legislative authority over approximately 10% of Canadian employees:

  • federal government, industries of national significance, interprovincial nature (banking, communications, interprovincial transportation)

Foodora Delivery Case

• Ruled that couriers were dependent contractors, not independent, and were eligible to unionize

• 2019-2020 Ontario Labour Relations Board case

Guaranteed Minimum Income

Citizens receive a basic income from the government

Human rights code

• Ontario Statutory law designed to prevent discrimination harassment in area of employment based on prohibited grounds such as race, sex, sexual orientation, age, disability

Independent Contractor

• A self employed individual who sells services to an organization

• Not considered employees

• Responsible for their own taxes

• can deduct business expenses

Internal Responsibility System

• Promotes a preventative system where workers have the right to participate in, know about, refuse unsafe work

• Philosophy of the Occupational Health & Safety Act (OHSA)

• IRS

Keays vs Honda

• To receive extra damages for bad-faith termination, plaintiff must prove they suffered a financial loss as a result of the employer’s conduct

• Overturned the principle of wallace damages

• 2008 Supreme Court of Canada

Meiorin Case

• Female firefighter failed a fitness test, the Supreme Court of Canada rule it wasn’t a Bona Fide Occupational Requirement

• discriminated against women because it wasn’t needed for firefighters

• established the three-point test to determine if it was a legitimate standard

Occupational Health & Safety act

Ontario statutory law designed to protect workers against health and safety hazards on the job through a preventative system

• OHSA

Pay equity

• Addresses occupational segregation by using a job evaluation system to ensure male dominated and female dominated jobs of equal value are paid equally

• based on points for skill, responsibility, effort, etc 

Provincial jurisdiction

Legislative authority over approximated 90% of canadian employees

• established by the Snider Case

• Established that ‘property and civil rights’ under BNA to include employment legislation

Punitive damages

• Monetary awards are intended to punish employers for bad behavior

• was not awarded in wrongful dismissal cases before the Wallace Decision

Statutory law

• One of the three legal regimes

• Consists of legislation (statutes) that applies to all employees

• ESA and HRC

Snider Case

• Declared the Federal Labor Act unconstitutional

• Established that labor relations and employment law fall under provincial jurisdiction

• 1925

• Landmark legal decision by the British Privy Council

Systemic discrimination

Employment criteria/standards that are not intentionally discriminatory but have disproportionately negative or adverse impact on members of designated groups

Termination provisions

• Clauses in employment contracts that attempt to limit an employer’s financial obligation upon termination by contracting out of common law reasonable notice periods

• Unenforceable if they do not clearly comply with minimums set by the Employment Standards Act

Three pillars of the Ontario human rights system

1. Human rights commission (policy + education)

2. Human Rights legal support center (legal assistance for applicants)

3. Human Rights Tribunal of Ontario (where applications are filed and adjudicated)

Wallace Case

• The amount of reasonable notice in a wrongful dismissial could be increased if the employer did not treat the dismissed employee ‘fairly, reasonably, and decently’

• 1997 Supreme Court of Canada Case

Workplace Safety and Insurance Act

• Ontario statutory law that compensates employees for injuries and diseases arising from their employment

• Operates as a ‘quid pro quo’ where employees give up the right to sue their employer in exchange for benefits from a no fault insurance system funded by an employer contributions

• WSIA

Wrongful Dismissal

• A dismissal of an employee by an employer without just cause or reasonable notice (or pay in lieu of notice)

• a breach of the common law employment contract