Study exam Questions and answers for PSYC 290 General Psychology (Athabasca University) 20, Exams of Advanced Education

Download Study exam Questions and answers for PSYC 290 General Psychology (Athabasca University) 20 and more Exams Advanced Education in PDF only on Docsity! lOMoARcPSD|10754654 MANA 479 study guide Notes for Midterm 1 Employment Law (Concordia University) 2024 lOMoARcPSD|10754654 Part 1: Constitution Section 91: Federal jurisdiction ➢ Criminal law ➢ Postal services ➢ Military ➢ Divorce ➢ Indians and land reserve Section 92: Provincial jurisdiction ➢ Property and civil rights ➢ Marriage ➢ Administration of justice ★ Federal and provincial powers are mutually exclusive, which means that they both cannot be applied at the same time. ★ Areas of legislative authority are often referred to as “heads of power” ★ The government who has been attributed the head of power has the exclusive right to make laws concerning that head of power ★ Heads of power are divided between the federal government and the provincial government ★ If that government fails to legislate the other government’s laws, it cannot fill the gap ★ From the above lists, we can see that the provincial governments cannot legislate in the area of criminal law. Such a law would be ultra vires or unconstitutional. Ultra vires simply mean “beyond the powers” ★ The constitution clearly divides legislative subject matter between the two levels of government ★ What happens when a legislative subject matter is not included in the heads of power listed in s.91 & s.92? For example telecommunications and labor relations. The courts are generally called upon to decide Case: Toronto Electric COM vs Snider [1925] aka Snider Case ➢ Determined that Labour Relations are part of Civil and Property Rights (Provincial jurisdiction) ➢ Law s.92 (13) ➢ A 1925 court case considering whether a federal law imposing on employers and employees a Board which was required to make an inquiry and attempt to effect a settlement before a strike or lock-out could be declared was unconstitutional. ○ The Privy Council declared that this was an interference with the civil rights of the employer and employees under the Head of Power lOMoARcPSD|10754654 Case: Northern Telecom vs. Communications Workers Case ➢ Step 1: NT is a manufacturer whose normal or habitual activities are not federal in nature but are of a provincial nature ➢ Step 2: Are the activities integral to a federal undertaking? ○ 1. The general nature of NT operations and the role of the installation department ○ 2. The nature of the corporate relationship between NT and the companies that it serves ○ 3. The importance of the installation work done by NT for Bell Canada compared with other customers ○ 4. The physical and operational connection between the installation department of NT and the overall telephone system (federal undertaking) ➢ Results: The SCC subsequently ruled that NT’s activities were a “federal work, undertaking”: ○ The work of NT installers fell within the Federal Parliament’s jurisdictional competence. Functionally separate from NT’s other operations, this work was performed primarily on Bell Canada’s premises and formed an integral part of Bell Canada’s federally regulated telecommunications network ○ The operations formed a distinct unit within the business of NT which could be treated separately lOMoARcPSD|10754654 Part 2: Individual Employment Contract 1. Parties : ➢ There are 2 parties to the employment contract: Employer and Employee ➢ The employee must be a natural person, this conclusion is implicit from a reading of the Civil Code of Quebec (CCQ) ➢ The employer must protect the health, safety, and dignity of the employee. ➢ The contract ends when the employee dies ➢ Individual Employment Contract- Nature of the Contract: ○ The employer can be either a natural or a legal person, a general or limited partnership, or even an association ○ Identification of the employer is generally an easy task but there are exceptions ○ When an employee’s services are temporarily loaned out to another employer ○ Or in tripartite arrangements such as the supply of manpower from one employer to another ○ Generally, the party exercises control over the employee’s working conditions will be considered the employer 2. Elements of the Contract: 1. The work: ○ It can be of any type (manual or intellectual) ○ It can be regular or intermittent; full-time or part-time ○ Interruptions in the provision of work due to illness, work shortage, strike, or other causes do not entail termination of the employment contract 2. Remuneration: ○ The right to remuneration for work performed is essential to the notion of an employee (no volunteerism) ○ The employee can be paid on an hourly, weekly, monthly, or yearly basis; on a flat rate, or by commission ○ Need not just to be with money, could be goods or services ○ They get paid for the work they do 3. Subordination: ○ This is the most significant and defining element of the contract of employment ○ Without the element of subordination, there is no employment agreement ○ Compare s.2085 to s.2099 CCQ ○ S.2085: A contract of employment is a contract by which a person, the lOMoARcPSD|10754654 employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer. ○ S.2099: The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client. ○ What is the difference? ■ Historically subordination meant the boss looking over your shoulder watching you working ■ In the modern context, it means the employer’s right to determine what work will be done, how and when the work will be performed, and the right to supervise and control its execution. ○ Factors denoting subordination include: ■ Mandatory presence at workplace ■ Regular assignment of work ■ Rules of conduct and behaviour ■ Requirement for employees to submit activity reports ■ Quality control over work performed 3. Formation of the Contract ➢ Formed by the simple consent of persons having the capacity to contract ➢ No form is necessary (need not be in writing) 4. Characteristics of the Contract : ➢ Bilateral: ○ Agreement between 2 parties ➢ Onerous: ○ Each party receives something in return for undertaking an obligation to the other party. For example, I receive a book and pay $10 in return. ➢ Commutative: ○ Both parties know in detail how much each has to pay and what each will receive in return. For example, I say I will buy 100 apples for $4. ➢ Successive performance ○ The obligation is to continue doing something on a regular basis for a specified period of time. For example, a contract to mow the lawn once a week for $25. ➢ Intuitu personae (because of the person) 5. Obligations of the Employees s. 2088 CCQ : 1. Work: ○ The work must be performed personally, but there can be arrangements between employees and the employer ○ The work must be performed under the direction and control of the lOMoARcPSD|10754654 ■ Regardless of its source (management, co-workers, or Employer’s representative) ○ Employers must safeguard the employee’s privacy (private life) ○ Could be considered a breach of this obligation depending on the circumstances: ■ Deliberately intercepting and using private communications ■ Recording and using a person's image or voice in a private place ■ In any way, carrying out surveillance on a person’s private life ■ Personnel files must be held in confidence (37 to 41 CCQ) they are private documents 3. Remuneration: ○ The employer must pay that which was agreed ○ Remuneration can be money or any other form of advantage having pecuniary value ○ Remuneration includes things such as vacation pay, statutory holidays, pensions, health or other forms of insurance 7. Duration of the contract ➢ S.2085 CCQ: the duration of a work contract cannot be “for life” ➢ S.2086 CCQ: the contract can be for an indeterminate term or for a fixed term ➢ Indeterminate term = unknown end date ➢ Fixed term = known end date (either by fixing a date or event the occurrence of which will end the contract). Ex: when the employee returns from maternity leave 1. Termination by mutual consent ■ Like any other contract, the employment contract can be terminated by mutual consent of the employer and employee 2. Termination by Force Majeure ■ These are events that are completely outside of a party’s control and occur without any fault of the party invoking force majeure, rendering the performance of their obligations, under the terms of the contract impossible ■ The party invoking the force majeure must prove it. Once established the contract ends. ■ It is uncontrollable. Ex: long-term illness of employee or bankruptcy of the employer ■ Other examples are natural causes (fire, storms, floods), governmental or societal actions (war, invasion, civil unrest, labor strikes), infrastructure failures (transportation, energy), etc. 3. Termination by Death ■ When the employee dies the contract is terminated ■ When the employer dies it might be terminated. See s.2097 CCQ - the alienation of the enterprise lOMoARcPSD|10754654 ■ S.2097: A contract of employment is not terminated by the alienation of the enterprise or any change in its legal structure by way of amalgamation or otherwise. The contract is binding on the successor of the employer. 4. Termination for a serious reason (with cause) ■ Both fixed-term and indeterminate-term contracts can be unilaterally terminated without notice or indemnity for serious reasons (s.2094 CCQ) ■ Employee terminates = resignation ■ The employer terminates = firing ■ Resignation can be simple or conditional ■ Simple resignation can manifest itself by the employee simply not showing up at work ● It may be a notice to the employer in which case it only binds the employee when the employer learns of the notice ● The employee must freely consent to resign. Resignations forced on the employee through subterfuge, threats, and harassment will be considered Constructive dismissal ■ Conditional resignation may not be a resignation at all but rather an offer to negotiate a termination agreement ● The employer cannot waive the notice an employee has given him - he may however indemnify the employee for that period of time instead of having the employee continue at work ■ Only serious reason terminations allow the employer to terminate immediately and with indemnity (security) of any kind ■ Constructive dismissal does not qualify. Constructive dismissal occurs when the employer harasses, threatens, humiliates, or vexes the employee in order to get the employee’s “resignation” ■ Constructive dismissal is actionable and treated like a wrongful dismissal ■ Serious reason termination is NOT the same as “good and sufficient cause” ■ For a reason to be considered a “serious reason” fault has to be attributable to either the employer or the employee ■ The difficult financial situation of the employer is not considered a “serious reason” to terminate an employee without notice or indemnity ■ Also “serious reason” does not include those reasons the law specifically excludes: ● Discriminatory reasons, whistleblowing, seizure of salary in hands of the employer, jury duty, exercising a right lOMoARcPSD|10754654 under LSA, etc. ■ Serious reasons for the employer is when an employee serious breach of an obligation under s.2088 ■ A serious reason for an employee is when the employer serious breach of an obligation under s.2087 ■ The fault must be sufficiently severe to warrant termination ■ The penalty must fit the crime (ex: being late) 5. Termination of indeterminate contracts s. 2091 CCQ ■ The parties must be able to terminate indeterminate term contracts ■ Each party may end such a contract by giving reasonable notice to the other ■ In the case of the employee giving notice, it is more theoretical than practical as the employer would have to provide his damages. Ex: can't withhold salary owing ■ Two ways of giving “reasonable notice” ● Working or allowing work for the period of time to reasonable notice ● Paying an indemnity in lieu of reasonable notice ■ Reasonable notice is calculated by taking into consideration several factors: ● Nature of the employment ● Particular circumstances of the employment ● Length of time the employee has worked for the employer ● The age of the employee ■ An employee cannot waive his rights to a “reasonable notice”, s.2092 CCQ (Public order) ■ A pre-established “reasonable notice” clause in the employment contract may not be binding if it is no longer “reasonable notice” ■ The circumstances of the parties (employees) may have changed over time. 6. Termination Fixed Term Contract ■ Fixed-term contracts are not presumed, they must result from an express understanding of the parties ■ They terminate upon the occurrence of the event which gives rise to the termination. Ex: a date, an event, a result ■ If terminated sooner, they must pay the full amount due 7. Alienation of enterprise ■ This rule deviates from the “relativity of contract” rule ■ Employment contracts follow the enterprise (functional or organic) ■ When the enterprise changes hands (sale, succession, force sale, etc) employment contracts follow the enterprise