By Shafik Bhalloo
EMPLOYMEN
T LAW
Compare employee
and independent
contractor
The employer's power
of selection of the
Control test- Degree employee
of Control exercised
over an employee is
greater than over an
independent
contractor Whether the
WHAT IS employer paid wages
EMPLOYMENT Four aspects of
control were
? considered:
The employer's right
to control the method
of doing the work
The employer's right
to suspend or dismiss
the worker
WHAT IS EMPLOYMENT ? …
CONT.
Control test inadequate when involving highly trained workers;
where employer did not control the professional/ highly skilled
worker in how they did the task.
New test developed in courts called the "entrepreneur test"
or the "fourfold test".
Under the "four-fold"/"entrepreneur" test the courts considered
the question of "whose business is it" by examining the following
factors:
• Control (as in the "control test");
• Ownership of tools
• Does the individual have a chance of profit?
• Who bears the risk of loss?
The "organization test", or
as it is variously known, the
"integration test" or the
"economic dependency
test":
Looks at the integration of
the worker into the
WHAT IS employer's business and
EMPLOYMENT asks: “Is the person an
essential part of
? …CONT. employer’s
organization?”
"If the answer is "yes", then
the worker will likely be
considered an employee.
Example: Photocopy
machine repairman vs.
secretary at the law firm
• Obligations of employer
• Pay
LAW OF • Safe workplace
MASTER • Physical safety
AND • Harassment free
SERVANT • Discuss case re
manufacturing client
and harassment in the
workplace
L AW OF MASTER AND
SERVANT, … CONT.
• Obligations of employee
• Competent
• Honesty and loyalty (ex: of employee
misrep. graduated with degree)
• Punctuality (e.g. former secretary)
• Act in employer’s best interests
• Fiduciary obligations (in some cases)
(see next slide)
A fiduciary obligation is an implied
term of employment contracts and
arises when either party has
enough power or discretion to
use information in a way that
could negatively affect the
other party’s interests.
Fiduciary obligations aim to
protect the vulnerable party in
EMPLOYEE work relationships involving a
high level of trust and
confidentiality.
MAY BE A Where the employee is a fiduciary,
FIDUCIARY
s/he has added obligations during
and after the employment
relationship:
(i) to refrain from taking
advantage of maturing business
opportunities for which the
employer has been negotiating;
and
(ii) to refrain from soliciting
former customers or clients for
a reasonable period of time
after the termination of
employment.
Where no just cause,
reasonable notice of
termination is required of both
employer and employee (unless
written contract provides
specifically)
TERMINATIO
N OF
EMPLOYMENT
Employer is required to give
reasonable notice or pay in lieu
of notice
May dismiss an employee with
notice for any reason unless it
violates human rights
legislation
Reasonable notice versus
statutory minimum notice (See BC ESA
S. 63)
In setting reasonable notice, courts
Length of
Type of job
consider:
Age of Qualificati
Availability
of similar Bad-faith
service employee ons employme conduct
nt
REASONABL
E NOTICE An employee discharged without
adequate notice can sue for wrongful
dismissal
An employee can leave without notice
when required to work in dangerous
conditions or when work involves
immoral or illegal activities
Just cause dismissal requires no notice
JUST
CAUSE
Dismissal without notice must be based
on employee wrongdoing or a failure to
perform: (i) summary dismissal or (ii)
performance related Ex:dismissal
tardiness,
quality of work,
Ex: theft, assault,
failure to take
gross negligence;
direction and the
theft and the like
like (ex: former
secretary)
Employment contract may be
breached when:
• The employer, unilaterally, without
proper notice, changes a significant term
of the employee's employment (e.g.
significant reduction in wages related to
CONSTRUCTIVE Covid-19) or
• Mistreats employee making the
DISMISSAL employee's working conditions
Compensation based on
intolerable.
reasonable notice, lost benefits
and pension rights
Employee must mitigate losses
• Can an employer can be
held liable for the tort
(wrong) of employee
during the course of
employment?
QUESTION • The availability of
FOR vicarious liability has been
DISCUSSIO broadened by the
expanded definition of
N employment.
• Is this a reasonable
approach? Should the
employee be held liable as
well?
Statutes (ESA) designed to
protect employees by setting
minimum
Hours of
work,
standards
Vacation
and
for:
Maternity
and Terminatio
Wages overtime, holiday
parental n pay
and rest entitlemen
leave
periods ts
EMPLOYMEN
T
STANDARDS
ESA does not apply to certain
professions (See s. 31 of ESA
Regs.- lawyers, physicians,
architects, chiropractors,
accountants)
