Deck 18: The Contract of Employment

Question 1

Elaine is employed by a large multinational company in a top management position where she oversees a staff of 100 employees.There is no formal written employment contract between Elaine and the company,but she is paid an annual salary of $150 000.00 and given a company car; an expense account; and,at the end of each year,a bonus.One day,Elaine,who is an avid supporter of the Conservative Party,has an argument with the president of the company,who is an avid supporter of the Liberal Party.A couple of weeks later,Elaine receives a memo from the company's head office advising her that she is being transferred to the company's shipping department and that her company car,expense account,and bonus have been terminated.Elaine comes to you,her lawyer,for advice.In this case you,will tell Elaine

A)that the company is in breach of its employment contract with Elaine.
B)that she has been wrongfully dismissed by the company.
C)that the company has the right to do what it has done and that Elaine has not been wrongfully dismissed.
D)that Elaine has been constructively dismissed by the company.
E)none of the above

Answer 1

D

Question 2

Albert is employed by a large construction company and is in charge of purchasing the company's building supplies.When Albert enters into contracts for the company with its suppliers,Albert is

A)both an agent and an employee of the company.
B)an independent contractor.
C)an employee of the company.
D)an agent of the company.
E)all of the above

Answer 2

A

Question 3

Damages for wrongful dismissal

A)is the amount of money that is equivalent to two months' salary.
B)is the amount of money that is equivalent to six months' salary.
C)is the amount of money that will compensate the employee for pain and suffering.
D)is calculated in the same way as damages for the commission of a tort.
E)is the amount of money that will compensate the employee for failure to receive the required notice of termination.

Answer 3

E

Question 4

Martin is employed by a delivery company and uses one of the company's trucks to make his deliveries.One day after work,Martin borrows the truck,and while he is driving home,he loses control of the truck and collides with Alice's car,causing damage to the car and injuries to Alice.In this case,Alice will

A)sue both Martin as the principal tortfeasor and the delivery company,which is vicariously liable.
B)sue both Martin as the principal and the delivery company under the principle of vicarious performance.
C)sue Martin only because he alone is the tortfeasor.
D)sue the delivery company only because it is Martin's employer.
E)not be able to sue either the delivery company or Martin because the accident was Alice's fault.

Question 5

When an employer has hired an employee for a specified period and the time has elapsed

A)the employee is required to provide the employer with two months' notice.
B)the employee is required to provide the employer with reasonable notice.
C)no notice is required before the termination of the employee's employment.
D)the employer is required to provide the employee with two months' notice.
E)the employee is required to apply to a court to terminate the agreement.

Question 6

Gerald,who is 59 years old,has been employed by a large telephone company for 14 years in one of the company's top management positions,although there is no formal written contract of employment between them.The company is not doing well financially and wants to let Gerald go,but does not know what kind of notice to give Gerald.If the company comes to you,its lawyer,for advice,you will tell it that the length of the notice period will depend on

A)the availability of similar employment given Gerald's experience and education.
B)Gerald's age.
C)the fact that Gerald is in a top management position.
D)the length of Gerald's employment with the company.
E)all of the above

Question 7

John works for a large plumbing company on a job-by-job basis.While the company finds John each of his jobs,he has his own tools and uses a company truck with the name of the company on it.John's work is always subject to supervision by the company.In this case,John can be said to be

A)an independent contractor.
B)both an agent of the company and an independent contractor.
C)an employee of the company.
D)both an agent and an employee of the company.
E)an agent of the company.

Question 8

In early September,John is employed by a technology company for an indefinite term as its quality control supervisor.John was hired on the basis of his resumé,which stated that he had extensive experience in quality control supervision,which was not true.A month later,although the company had not found out about John's misrepresentation,the company summarily dismissed John,because his actions as quality control supervisor made no sense and had jeopardized the safety of the 10 employees under his control.In this case

A)the company has the right to dismiss John for misrepresentation.
B)the company has wrongfully dismissed John.
C)the company has the right to dismiss John for just cause.
D)the company has the right to dismiss John under the terms of his employment contract.
E)the company has constructively dismissed John.

Question 9

Notice is not required

A)when the period of employment is only two months.
B)when the period of employment is three months.
C)when the period of employment is two weeks.
D)when the employee is dismissed for cause.
E)when the period of employment is only one month.

Question 10

Incompetence,disobedience,and misconduct justify an ending of the contract of employment for breach,but illness justifies an ending of the contract of employment for

A)duress.
B)misrepresentation.
C)frustration.
D)mistake.
E)breach.

Question 11

Where the employment of an employee is NOT ended for just cause

A)the employee may demand to be reinstated.
B)the contract is deemed to have been frustrated.
C)the termination is voidable.
D)the employee may commence an action for wrongful dismissal.
E)the conduct of the employer is an anticipatory breach.

Question 12

George works for a large national corporation as its vice-president of sales.He earns $100 000.00 a year and has a company car and gas expense account,both of which are valued at total of $8000.00 a year.Five years into his employment with the company,the company wrongfully dismisses him and refuses to give him a letter of reference.Also,when George applies for other jobs and the companies to which George has applied for other jobs contact his company,it lies about his performance.In a wrongful dismissal lawsuit against the company,one of the heads of damages that John will seek for the actions of the company after it dismissed him will be

A)damages for loss of income based on a reasonable notice period.
B)general damages for pain and suffering.
C)damages pursuant to the Wallace decision.
D)economic damages.
E)special damages for out-of-pocket expenses.

Question 13

Which of the following is NOT relevant in determining how much notice is reasonable in case of wrongful dismissal?

A)the age of the employee
B)the economic situation of the employer
C)the length of service of the employee
D)the employee's special expertise and training
E)the possibilities the employee has for re-employment

Question 14

Allen,a research technician,has a contract of employment with a research company under which the term of Allen's employment is three years and Allen agrees to a confidentiality clause respecting anything related to the business of the company.Two years into his contract,Allen decides to make some extra money by selling some of the company's new designs to a competitor for $200 000.00.A month later,the company finds out what Allen has done and fires him.In this case

A)the company has properly dismissed Allen for breach of the confidentiality clause in his employment contract.
B)the company has wrongfully dismissed Allen.
C)the company has properly dismissed Allen because the three-year period of employment is at an end.
D)the company has constructively dismissed Allen.
E)the company has properly dismissed Allen for just cause.

Question 15

Dismissal for cause is

A)dismissal for unjustified causes.
B)dismissal for justified reasons.
C)dismissal without notice and further obligation by the employer when the employee's conduct amounts to a breach of contract.
D)dismissal for causes not specified in the contract of employment.
E)dismissal for causes specified in the contract of employment.

Question 16

The usual minimum notice requirement for a week hiring is

A)two clear weeks' notice.
B)two days' notice.
C)one clear week's notice.
D)one day's notice.
E)no notice.

Question 17

Henry is a carpenter by trade who has his own tools and his own truck.Henry works for a construction company,and after each job,he provides the company with an invoice for the work he has performed.In this case,Henry is

A)both an agent of the company and an independent contractor.
B)an employee of the company.
C)an independent contractor.
D)an agent of the company.
E)both an agent and an employee of the company.

Question 18

The usual minimum reasonable notice for a monthly hiring is

A)one month's notice.
B)no notice.
C)two weeks' notice.
D)one week's notice.
E)one day's notice.

Question 19

John Jones is in the roofing business and enters into a contact with George Hopkins to put a new roof on George's house.John,who is extremely busy,decides to contract out the work to Albert.When Albert arrives,George refuses to let him do the work.In this case,under the contract

A)George can refuse to let Albert do the work.
B)Albert is merely John's agent.
C)either John or Albert can do the work.
D)George must permit Albert to do the work.
E)Albert is merely John's employee.

Question 20

Which of the following is NOT true?

A)The relationship of employer and employee is one of contract in which one party,the employer,enters into a contract with an independent party,the employee,to do a specified task.
B)The relationship of employer and employee is one of contract.
C)An employer is not liable for the torts committed by a person to whom an employee has delegated work without the consent of the employer.
D)The distinction between an agent and employee is one of function only.
E)An employer is not vicariously liable for all torts committed by his or her employees.

Question 21

An employee's liability does NOT fall within the scope of employment if

A)the employee's actions are not related to performance of his or her duties.
B)the employee carries out his or her duties in an unauthorized manner.
C)the employee is not at the employer's premises.
D)the employer is not present.
E)the employee acts in a manner contrary to the employer's instructions.

Question 22

The following are all major types of disputes affecting trade unions EXCEPT

A)a jurisdictional dispute.
B)a recognition dispute.
C)a legislative dispute.
D)an interest dispute.
E)a rights dispute.

Question 23

In Ontario,labour unions have the status to commence and defend an action at law.

Question 24

Systemic discrimination is

A)discrimination that is pervasive throughout an employer's work force.
B)discrimination on the basis of race.
C)discrimination on the basis of sex.
D)discrimination that is harmful.
E)discrimination on the basis of gender.

Question 25

Pay equity legislation is intended to

A)eliminate gender discrimination in remuneration.
B)ensure that persons under a disability are accommodated in the workplace.
C)ensure that employers provide equal working conditions for all employees.
D)ensure that employers establish reasonable hours of work.
E)ensure that general working conditions are safe.

Question 26

The legislation of most provinces regarding minimum standards applicable to employment provides no protection for employees who have employment contracts that exclude their operation.

Question 27

Reinstatement is more common as a remedy for wrongful dismissal of unorganized employees as opposed to those under collective agreements.

Question 28

Pay equity legislation focuses on either equal pay for equal work or equal pay for work of equal value.

Question 29

If an employee commits a serious act of misconduct,such as theft,an employer can terminate the employment relationship immediately without notice.When the misconduct is unacceptable but does NOT allow the employer to terminate the employment on the basis of a single incident,the employer must

A)wait for the offending conduct to occur again.
B)reduce the employee's pay.
C)tell the employee to keep up the good work.
D)warn the employee that the offending conduct is unacceptable and that further occurrences will result in termination.
E)condone the offending conduct.

Question 30

A bargaining agent is

A)an employee who acts as a mediator between the employees and the employer.
B)an independent person retained by the employees to enter into negotiations with the employer.
C)an employee who is nominated by the employees to negotiate with the employer.
D)a person or persons appointed by the employees and employer to mediate a dispute between the employees and employer.
E)a union that has been certified by the labour relations board and has the exclusive right to bargain with the employer on behalf of the bargaining unit.

Question 31

A party injured by breach of contract is expected to act reasonably in order to mitigate her loss.This requires a terminated employee to look for another job.

Question 32

An employer can dismiss an employee who has done nothing wrong.

Question 33

A trade union is an organization of employees formed for purposes that include

A)suing the employer for wrongful dismissal in courts of law.
B)the regulation of relations between employees and employers.
C)commencing class actions.
D)dues check off.
E)regulation of pay equity.

Question 34

A closed shop agreement is

A)an agreement between two employees.
B)a collective agreement that requires all employees to be members of the union.
C)an agreement between employees and employers regarding the nature of working conditions.
D)an agreement between various departments or groups of employees.
E)an agreement respecting the time when shops may be open and closed.

Question 35

Today,mandatory retirement has been abolished throughout Canada.

Question 36

Today it is unlawful for a company to monitor its employees for the purpose of ensuring that they perform their employment duties.

Question 37

Collective bargaining is

A)establishing conditions of employment by negotiation between an employer and the bargaining agent for its employees.
B)bargaining between employees.
C)bargaining between employers.
D)bargaining between employers and employees.
E)bargaining between certain employees and the employer.

Question 38

Bontel Systems is a computer company.The company is going through a financial crisis,as a result of which the management decides to reduce costs by laying off some workers.The financial crisis excuses the company from providing the employees concerned with notice of termination.

Question 39

James employs several workers in his window washing company.One of these persons is Robert.James does not trust Robert.He believes Robert is disobedient and incompetent.He says Robert is trouble waiting to happen.James dismisses Robert because of this concern.He does not have any concrete evidence regarding his fears.A few days after his dismissal,Robert commences an action for wrongful dismissal.Just before James files his defence to the claim,he receives new information,which supports and confirm his fears about Robert.On the basis of this new information,he knows that his termination was not wrongful.James cannot use this new information to justify conduct that was carried out prior to the finding of the new information.

Question 40

Jack Machinery Limited is a clothing company.Jake is an employee of the company.Part of Jake's work includes attending at the home of purchasers to repair machines purchased directly from Jack Machinery and still under warranty.Jake is due to attend at the home of Mary to repair a machine purchased by Mary.He cannot make it,and so he asks a friend,Mike,to attend for him.Mike is not an employee of Jack Machinery Limited.While at the home of Mary,Mike gets into an argument with Mary and during the course of the argument slaps Mary.Mary can now sue Jack Machinery Limited for assault and battery.

Question 41

Jack Machinery Limited is a clothing company.Jake is an employee of the company.Part of the work of Jake includes attending at the home of purchasers to repair machines purchased directly from Jack Machinery and still under warranty.Jake is due to attend at the home of Mary to repair a machine purchased by Mary.He cannot make it,and so he asks a friend,Mike,to attend for him.Mike is not an employee of Jack Machinery Limited.While at the home of Mary,Mike gets into an argument with Mary and during the course of the argument slaps Mary.Can Mary sue Jack Machinery Limited for assault and battery? Explain your answer.

Question 42

What is a closed shop agreement?

Question 43

Jack Machinery Limited is a clothing company.Jake is an employee of the company.Part of the work of Jake includes attending at the home of purchasers to repair machines purchased directly from Jack Machinery and still under warranty.Jake is due to attend at the home of Mary to repair a machine purchased by Mary.He cannot make it,and so he asks a friend,Mike,to attend for him.Mike is not an employee of Jack Machinery Limited.While at the home of Mary,Mike gets into an argument with Mary and during the course of the argument slaps Mary.Can Mary sue Jack Machinery Limited for assault and battery? Explain your answer.

Question 44

Tom has been employed as a sales manager for Vanessa's Used Cars for more than twenty years.Economic conditions in the car business have worsened,and Vanessa believes she needs to terminate Tom's employment.She receives legal advice that based on Tom's age,length of employment,and character of employment and on the availability of similar employment given his education,training,and experience,Tom should receive eighteen months' notice of termination.Vanessa believes that once she provides Tom with notice of termination he will not be an effective sales manager and that she will lose more business during the year and a half in which Tom remains as her sales manager.What options does she have as far as the manner in which she provides this notice?

Question 45

How does an independent contractor differ from an employee?

Question 46

On what grounds is a business justified in dismissing its employees without notice?

Question 47

Jillian is 54 years old.She has worked for D & C Printing Company for 21 years.Her job description includes the supervision of seven employees,scheduling and generally dealing with the administrative issues in the office.As a result of a downturn in the economy her employment is terminated along with a number of other employees.What factors will the court consider in determining how much reasonable notice her employer should provide to Jillian (compared to the younger employees who were supervised by her)given that her termination is without cause?

Question 48

Briefly identify the type of misconduct an employee is required to commit to provide the employer with the opportunity to dismiss for cause and how the employer benefits financially from a just cause dismissal?

Question 49

Explain the types of disputes that can affect trade unions.

Question 50

Explain the implications of collective agreements for employees.

Question 51

A rights dispute is one that arises between a union and an employer regarding the right of the union to act as the bargaining agent for the employees.

Question 52

Pay equity legislation aims to eliminate gender discrimination in employment remuneration.What is the difference between the concept of "equal pay for equal work" and the concept of "equal pay for work of equal value"?

Question 53

In addition to the normal damages awarded in wrongful dismissal lawsuits,another type of damages is often awarded specifically where the employer's conduct after dismissal is unconscionable.Explain these damages,providing examples of the conduct that gives rise to them.

Question 54

Given the developments in new technology,including computers and computer software,it can be said that monitoring of employees will become commonplace in the next few years.Discuss.

Question 55

Reinstatement of an employee who has been wrongfully dismissed should be considered a remedy in itself in wrongful dismissal actions.Explain.

Question 56

What is reasonable notice? Why must employers in non-union settings provide reasonable notice to terminated employees when the employer does not have just cause to terminate?

Question 57

An employer that dismisses an employee can give the employee reasonable notice of termination and avoid paying damages for wrongful dismissal.

Question 58

Collective bargaining is bargaining between employers and employees.

Question 59

George works for a large national company as its vice-president of sales.He earns $120 000.00 a year and is given a company car and gas expense allowance,the total value of which on a yearly basis is $10 000.00.He also receives a yearly bonus of $50 000.00 where the company's sales exceed 1 million dollars a year.John,who is 55 years of age,has just been summarily dismissed by the company.Although John has tried to find alternative employment,he has been unable to do so partly because the company refused to give him a letter of reference and has been telling companies to whom John has applied that John is incompetent,when this is not true at all.Assuming that a reasonable notice period is 14 months,that John received $30 000.00 in Employment Insurance benefits,and that damages under the Wallace decision of $25 000.00 were awarded in another case similar to John's,explain how John's damages would be calculated.