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14 Cards in this Set
- Front
- Back
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Does the existence of a written contract make enforceable? What is an unconscionable term? How will the courts interpret an ambiguous term? |
No -- agreements without consideration are unenforceable A unreasonably one-sided term in a contract (fail to meet statutory standards - may be null and void) Use rule of contra preferentum (favours the party signing the contract) |
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What are some tips for drafting employment contracts? |
- Use clear, straight-forward language - Be fair when negotiating terms - Give other party time to read and seek ILA if necessary - Meet or exceed minimum statutory standards - Highlight critical terms |
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What are the main purposes of an employer policy manual? |
- Covers the day-to-day rights and responsibilities and direct employees to follow policy (ex dress code, disciplinary procedures, etc) - helps ensure consistency and predictability in employee treatment (reduce potential for wrongful dismissal litigation) |
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How can an employer maximize the benefits of an employer policy manual? |
- ensure policy manual is implemented - provide employees with a copy of the manual before they begin work - ensure manual is clearly drafted - apply policies consistently among employees - give notice if there will be significant changes - have employees sign that they have read manual |
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Minor changes to employment terms and conditions? Significant changes to employment terms and conditions? |
- may only require employer to notify employees and distributes amendments to policy manual - may invite legal problems |
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What is constructive dismissal? - how to avoid this In a fixed term contract, if the work continues past the expiry date of the contract? |
Change(s) to terms and conditions of contract that alters the agreement in a fundamental way (ex. changes nature of job) - provide advance notice The Contract becomes indefinite |
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What are some methods of employee performance management? |
Performance appraisals - providing regular feedback which is objective is helpful in laying legal foundation for dismissing a poorly performing employee Progressive discipline -- imposes discipline for less serious infractions in a series of increasing steps (level applied is proportionate to the employer's misconduct Suspension with out pay (careful -- may constitute constructive dismissal) |
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Attendance management should flow from: What is culpable absenteeism? What is innocent absenteeism? |
- attendance policy in an employer policy manual Employee is absent without a valid excuse Absence of employee from work is not employee's fault (ex. traffic, unforseeable accident, etc) |
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When is an employer vicariously liable for actions of employees? |
- when employee performs act with in the scope of their employment and flows from taking reasonable care of employees - unauthorized employee actions invite liability if connected to authorized actions (regardless of employer's actions) ex. serving alcohol at company functions may invite vicarious liability for intoxicated driving - if workplace merely provided the opportunity for the wrongful act, employer may not be liable |
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Resignation: - should be? - may not be binding if? What is voluntary resignation? |
- formally accepted (should send letter to confirm acceptance of a letter of resignation) - if resignation is retracted before employer accepts resignation Voluntary resignation -- employee is given a choice between resigning or being dismissed, maybe found to have not resigned voluntarily |
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Can resignation be inferred? Working during notice period -- Employer's reaction to resignation |
Yes -- action must be intentional, unequivocal, and non-impulsive Employer may not want employee to work during resignation notice period If employer reacts to resignation by dismissing the employee, individual may be entitled to wrongful dismissal damages |
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Is notice to resignation required by statute? What is good practice when employee leaves employment? |
No - but it is a common-law requirement to provide reasonable notice of resignation Exception - special circumstances may trigger require notice -- ex employees who have special qualifications/expertise Exit interviews -- may provide valuable information and allow them to identify issues that could lead to claims |
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Under Ontario law, what is no longer permitted regarding retirement? |
No longer permits employers to institute mandatory retirement policies at a particular age |
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Mandatory retirement policies What might trigger ageism claims? What is not considered discrimination? What should an employer do to avoid age discrimination claims? |
- may constitute ageism - are only permissible if can employer can show that mandatory retirement is a bona-fide occupational requirement - limiting benefits or pensions over a particular age or making an early retirement incentive package - assuming that older employee will retire - should carefully document the reasons for terminating older employees to avoid claims of discrimination |
