Mount Saint Vincent CH20 Independent Worker and The Candaian Legal System HW

Question Description

2. What are the implications for an employer in relation to the different characterizations of a person as either an Independent worker or an Employee? Please provide an example.

200-300 words

Use examples to explain

Base on Candaian legal system

Please read the ppts carefully below .

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PowerPoint Slides to accompany Presentation prepared by John Ebbs Algonquin College Copyright © 2011 by Nelson Education Ltd. 20-1 Chapter 20 The Employment Relationship Copyright © 2011 by Nelson Education Ltd. 20-2 The Employment Relationship OBJECTIVES: ▪ The basic elements of the employment relationship ▪ The ways in which the law affects recruitment practices ▪ The content of a typical employment contract ▪ The legal issues relating to the terms and conditions of employment Copyright © 2011 by Nelson Education Ltd. 20-3 The Employment Relationship THE EMPLOYMENT RELATIONSHIP ▪ A contractual relationship whereby an employer provides remuneration to an employee in exchange for work or services ▪ Independent contractor – a person who is in a working relationship that does not meet the criteria of employment ▪ Usually doctors and lawyers provide services in the capacity of independent contractor Copyright © 2011 by Nelson Education Ltd. 20-4 Employee Versus Independent Contractor BASED ON VARIOUS TESTS, INCLUDING ▪ The degree of control exercised over the individual by the employer- more direction and supervision provided by employer, more likely the relationship is employment ▪ The ownership of tools, chance of profit, and the risk of loss from performance of the requested service ▪ The degree of integration of the work into the company’s activities Copyright © 2011 by Nelson Education Ltd. 20-5 Implications of an Employment Relationship IMPLICATIONS ▪ Employee has certain statutory rights and benefits such as paid holidays and overtime ▪ Employee may sue for wrongful dismissal, but this avenue is not available to an independent contractor ▪ Employer is responsible for the torts of an employee in the course of employment, but not for those of an independent contractor in the course of carrying out the contract Copyright © 2011 by Nelson Education Ltd. 20-6 Risk in Hiring RISKS IN HIRING – critical to business success or failure ▪ Vicarious liability – employer is liable when an employee commits a wrong while carrying out assigned duties or authorized tasks. ▪ Negligent hiring – if the employer is careless in hiring, training, or supervising there may be an action against the employer in negligence due to the actions of employee Copyright © 2011 by Nelson Education Ltd. 20-7 The Hiring Process STEPS IN THE HIRING PROCESS ▪ Develop job descriptions ▪ Advertise the positions ▪ Have candidates complete an application form or submit a résumé ▪ Short-list candidates ▪ Check backgrounds or references ▪ Interview selected applicants Copyright © 2011 by Nelson Education Ltd. 20-8 The Hiring Process EFFECT OF HUMAN RIGHTS REQUIREMENTS ON HIRING ▪ Human rights legislation prohibits discrimination in hiring on certain grounds ▪ Marital status ▪ Race ▪ Colour ▪ Physical or mental disability ▪ Religion or creed ▪ Sex ▪ Age Copyright © 2011 by Nelson Education Ltd. 20-9 Discrimination DEFINED ▪ Treating someone differently on the basis of a prohibited ground ▪ Adverse effects discrimination – discrimination that occurs as a result of a rule that appears neutral but in its effects is discriminatory ▪ Systemic discrimination – discrimination that results from the combined effects of many rules, practices, and policies Copyright © 2011 by Nelson Education Ltd. 20-10 Discrimination DEFENSES TO DISCRIMINATION Bona fide occupational requirement (BFOR) ▪ a defense that excuses discrimination on a prohibited ground when it is done in good faith and for a legitimate business reason Duty to accommodate ▪ the duty of an employer to modify work rules, practices, and requirements to meet the needs of individuals who would otherwise be subjected to unlawful discrimination Copyright © 2011 by Nelson Education Ltd. 20-11 Discrimination PENALTIES ▪ Failure to avoid or eliminate discriminatory practices can result in a complaint to the Human Rights Commission ▪ Board of inquiry investigates the complaint ▪ If complaint is valid, it can order the employer to stop its practices, hire a particular individual, pay monetary compensation, write a letter or apology, reinstate employee or institute an affirmative action plan Copyright © 2011 by Nelson Education Ltd. 20-12 Discrimination AVOIDING DISCRIMINATION IN HIRING ▪ Job description ▪ Advertisements ▪ Application forms ▪ Interviews Copyright © 2011 by Nelson Education Ltd. 20-13 Employment Equity EMPLOYMENT EQUITY LEGISLATION ▪ Laws designed to improve the status of certain designated groups ▪ requires employers to take positive steps to make the workplace more equitable ▪ Employment Equity Act targets the underrepresentation of women, Aboriginal peoples, people with disabilities, and visible minorities in the workforce Copyright © 2011 by Nelson Education Ltd. 20-14 Formation of the Employment Contract OFFER OF EMPLOYMENT ▪ Must be reasonably certain to constitute an ‘offer’ in law ▪ Need not be in a particular form or in writing ▪ Once made, the offer is capable of acceptance until it is terminated Copyright © 2011 by Nelson Education Ltd. 20-15 The Employment Contract CONSIDERATIONS PRIOR TO MAKING AN OFFER Prior to making an offer, the employer should determine whether the candidate has any obligations to his/her most recent employer Could result in legal action against the new employer for: ▪ Inducing breach of contract ▪ Restrictive covenants ▪ Fiduciary obligations Copyright © 2011 by Nelson Education Ltd. 20-16 The Employment Contract FIXED OR DEFINITE TERM CONTRACT ▪ A contract for a specified period of time, which automatically ends on the expiry date INDEFINITE-TERM CONTRACT ▪ A contract for no fixed period which, can end on giving reasonable notice EXPRESS AND IMPLIED TERMS ▪ Express terms have been agreed upon by the parties ▪ Implied terms are what the courts believe the parties would have agreed to Copyright © 2011 by Nelson Education Ltd. 20-17 The Employment Contract CONTENT OF AN EMPLOYMENT CONTRACT ▪ Names of the parties ▪ Date on which contract begins ▪ Position and description of the work to be performed ▪ Compensation (i.e., salary, wages, bonuses) ▪ Benefits (i.e., vacation, vacation pay etc.) ▪ Probation period, if any ▪ Duration of the contract, if any ▪ Evaluation and discipline procedures Copyright © 2011 by Nelson Education Ltd. 20-18 The Employment Contract CONTENT OF AN EMPLOYMENT CONTRACT ▪ Company policies or reference to employee policy manual ▪ Termination provisions ▪ Recital of management rights (i.e., employer has a right to make changes to job duties and responsibilities) ▪ Confidentiality clause, if appropriate ▪ Ownership of intellectual property, if appropriate ▪ Restrictive covenant, if any ▪ “Entire agreement” clause (i.e., the written contract contains the whole agreement) Copyright © 2011 by Nelson Education Ltd. 20-19 The Employment Contract EMPLOYMENT STANDARDS LEGISLATION Laws that specify minimum standards in the workplace including: ▪ Hours of work and overtime ▪ Minimum wage ▪ Vacations and vacation pay ▪ Termination and severance ▪ Statutory (paid) holidays ▪ Maternity and parental leave Copyright © 2011 by Nelson Education Ltd. 20-20 The Employment Contract SAFETY AND COMPENSATION ▪ Workers’ compensation legislation is designed to address accidents and injuries in the workplace ▪ Provides for a type of no-fault insurance ▪ Employers are required to pay into a fund ▪ Workers who have job related injuries, accidents or illnesses are compensated ▪ Economic safety schemes -Employment Insurance Act and Canada (and Quebec) pension plan Copyright © 2011 by Nelson Education Ltd. 20-21 Workplace Discrimination WORKPLACE HARASSMENT ▪ Any unwanted physical or verbal conduct that offends or humiliates the victim and detrimentally affects the work environment or leads to adverse job-related consequences for the victim including: ▪ Threats ▪ intimidation verbal abuse ▪ unwelcome remarks ▪jokes about race, religion, sex, disability, age ▪ displaying sexist, racist, or offensive pictures ▪ sexually suggestive remarks or gestures ▪ unnecessary physical contact physical assault including sexual assault Copyright © 2011 by Nelson Education Ltd. 20-22 Pay Equity PAY EQUITY ▪ Provisions designed to ensure that female and male employees receive the same compensation for performing similar or substantially similar work ▪ Designed to redress systemic discrimination in compensation for work performed Copyright © 2011 by Nelson Education Ltd. 20-23 Drug and Alcohol Testing TESTING POLICIES – generally accepted that, in most cases, an employer test an employee for alcohol and drug use where there is a reasonable suspicion ▪ A company needs to show that the policy is a bona fide occupational requirement ▪ policy must have been developed honestly and in good faith and be “reasonably necessary” to ensure the safe, economical, and efficient performance of the job Copyright © 2011 by Nelson Education Ltd. 20-24 Workplace Privacy COLLECTION AND DISSEMINATION OF INFORMATION ▪ legislation gives individuals the right to control the collection and use of personal information ▪ Privacy Act- regulates the collection and use of personal information held by the federal government ▪ Surveillance and searches- surveillance of employees with video cameras or closed-circuit television is sometimes used to prevent, detect, or investigate fraud, theft and harassment Copyright © 2011 by Nelson Education Ltd. 20-25 Technology and the Law MONITORING E-MAIL IN THE WORKPLACE ▪ monitoring the use ▪ monitoring the content ▪ Personal Information Protection and Electronic Documents Act (PIPEDA) ▪ Personal information should not be collected, used, or disclosed without the prior knowledge and consent of the individual concerned. Copyright © 2011 by Nelson Education Ltd. 20-26 The Union Context LEGISLATION ▪ Both federal and provincial governments have legislation that guarantees the right of most employees to join trade unions ▪ Certification – the process by which a union is recognized as a bargaining agent for a group of employees Copyright © 2011 by Nelson Education Ltd. 20-27 The Union Relationship LABOUR RELATIONS ▪ Labour Relations Board – a body that administers labour relations legislation ▪ Collective bargaining – a mechanism by which parties enter a collective agreement or contract ▪ Collective agreement – the employment agreement reached between the union and employer setting out the bargaining unit employees’ terms and conditions of employment Copyright © 2011 by Nelson Education Ltd. 20-28 …

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