Employment & Labour Law

Common implied terms in employment contracts (3)

'- Employee's obligation of fidelity/loyalty

- Employee's duty of competence

- Employer's duty to give adequate notice of termination or to pay severance

Duty of fidelity

Employee required not to disclose or make use of confidential information (e.g. trade secrets)

Trade secret

Information contained in a document/product/formula that is used and not widely known in a particular industry (has value by being not widely known) and the company tries to maintain its secrecy through reasonable efforts

Examples of trade secrets (2)

Profit margins, client lists

Restrictive covenants within duty of fidelity

Non-compete clause in employment agreement for a specified period of time during employment and after termination

Duty of competence

Employee is expected to be competent in the area of work for which they have been hired; If employee makes a mistake causing the employer to suffer, the employer has the right to recover the loss amount from the employee

Components of termination (3)

'- Just cause (employee committed breach of employment; requires prior warning unless there is serious dishonesty/disloyalty)

- Not for cause (such as performance problems; contract employees are not entitled to notice or severance pay; FT employees must receive notice or severance)

- Notice and severance provided by employer

Constructive dismissal

If the employer unilaterally substantially negativel changes the terms of employment (e.g. demotion, reduced compensation, reduced responsibilities, sometimes relocation)

Independent contractor

No tax deducted from payment (unlike employees who have tax, EI, CP deducted); can be challenged by CRA and employment standards; provides services for more than one client/employer

Dependent contractor

Works for one client and subject to the control of the client for how services are provided; not permitted to work for a competitor; may not be bound by a contract of employment; entitled to a notice of termination (like an employee)

Employment Standards Act does not apply to…

An architect, engineer, trainee, or independent contractor

Human Rights Tribunal

Separate from the courts and only deals with human rights complaints

T/F Employers are permitted to discriminate based on level of education/experience

True

Can employers discriminate based on disability?

Only if the physical ability is a job requirement and cannot be dealt with through reasonable accommodation

Labour Law

'- Governs union-management relationships and employee-union relationships

- Union is authorized to enter into employment contract on behalf of employees who are members of the union

- Employer cannot negotiate directly with employee once union representation is established

Strikes and lockouts are illegal unless…

A collective agreement is in force (e.g. In BC, Labour Relations Code prevents employers from hiring replacement workers during a work stoppage)