Deck 26: Individual Employment

Question 1

Roy has missed 10 days of work this year as a result of a reoccurring viral illness. Although he has never missed more than two days of work in a row, his productivity has definitely been affected. Roy's employer has done the math and figured out that his absence from work has prejudiced its business interests. Which of the following is true?

A) Roy's absenteeism is just cause so long as the employer documents the number of days missed and the lost productivity as a result.
B) In order for absenteeism to be a just cause for dismissal, the employer must demonstrate that the employee was dishonest about his or her absence.
C) The employer has just cause for dismissing Roy.
D) Roy can be dismissed without notice on the basis of his repeated absenteeism.
E) none of the above

Answer 1

E

Question 2

Luminara has been given two weeks' notice by Knight Services Inc, her employer. While she is upset and hurt, she also wants to make sure that she lands on her feet and that she will not be without an income for long, if at all. She therefore has asked you to comment on several potential outcomes that she has predicted. Which of the following statements is TRUE?

A) unless she signed an agreement to the contrary, Luminara will not owe any obligations to Knight Services once she leaves the company
B) as an employee, Luminara is subject to fiduciary obligations that will survive her departure from the company
C) Luminara will be entitled to a settlement package.
D) Luminara cannot take customer lists belonging to Knight Services, but she is entitled to memorize the information on those lists
E) none of the above

Answer 2

D

Question 3

Cece suffers from a disability. She developed that condition while working for Blackheart Inc. The duty to accommodate

A) requires Blackheart to modify the workplace, as long as the cost of those modifications does not exceed a statutorily imposed financial limit.
B) may impose an obligation on Blackheart, but in deciding how to respond to the situation, the company is entitled to rely on its own observations of Cece, and it need not obtain a report from a medical expert.
C) does not apply because Blackheart is responsible only for those conditions that existed when the employment contract was created.
D) is irrelevant to this case unless the employment contract requires Blackheart to provide Cece with housing.
E) arises only if Cece can prove that she would not necessarily face the same problems with a different employer.

Answer 3

B

Question 4

The notion of bad faith is relevant to wrongful dismissal in that a court will use it to

A) award damages to an employee, whether or not the employee has actual proof of mental distress.
B) put the employer out of business.
C) lengthen the period of notice required of an employer.
D) reinstate the employee in his or her former position.
E) none of the above

Question 5

Mr Plumber regularly carries out services for Big Irv's Plumbing supplies. Which of the following factors will the court consider when seeking to determine whether Mr Plumber is an employee or independent contractor of Big Irv's Plumbing?

A) whether Mr Plumber owned the tools used to carry out services
B) how long Mr Plumber has known Big Irv
C) Big Irv's annual profit
D) Mr Plumber's prior work experience
E) all of the above

Question 6

Severance packages are distinguishable from settlement packages

A) in that severance packages are a lump sum payment offered to bring an employment dispute to an end.
B) in that settlement packages contain only that which is owed to the employee under statute.
C) in that settlement packages are a lump sum payment offered to bring an employment dispute to an end.
D) in that severance packages are offered in exchange for a release.
E) none of the above

Question 7

Which of the following criteria will NOT be considered by the court when deciding whether to award damages for wrongful dismissal?

A) whether the employer acted in bad faith during the dismissal.
B) whether the notice period can be appropriately lengthened in order to compensate the employee.
C) whether the way in which the employee was dismissed caused foreseeable mental distress.
D) whether the employee suffered actual psychological damage.
E) all of the above criteria will be considered by the court.

Question 8

In deciding whether or not a non- competition clause is enforceable, a court will

A) be less likely to enforce the clause if the employer could have been sufficiently protected by a non- solicitation clause.
B) enforce the clause only if the former employee received independent legal advice before signing the agreement.
C) not be influenced by the fact that the employer wrongfully terminated the employee's contract of employment.
D) be influenced by the employer's personal interests, but not by its proprietary interests.
E) examine only the terms of the parties' agreement, and not the likely effect of that agreement.

Question 9

Employment policy manuals

A) are merely cosmetic and play no actual role in employee supervision.
B) are a means of expressing the conduct that is expected of employees during the course of their employment.
C) are established under the Employment Standards Act.
D) are not enforceable unless their content has been approved by a workplace advisory group.
E) all of the above

Question 10

Sonya is an independent contractor, working for Diamond Dave's Deliver- All. While delivering mini- donuts, Sonya inadvertently runs into the back of a parked car and smashes the bumper and back windshield. Luckily no one was hurt. Still, the owner of the car has decided to sue Diamond Dave to collect for the damages done to the car. Under which of the following circumstances will the owner succeed?

A) if she is able to prove that Sonya has a string of previous accidents on her record
B) if she is able to prove that Dave told Sonya to drive on that busy street during rush hour
C) if she is able to prove that the accident was sufficiently connected to Sonya's deliveries
D) if she is able to prove that the accident happened while Sonya was working
E) none of the above

Question 11

Which of the following adaptations to the workplace will not be required of an employer in order to comply with a duty to accommodate?

A) outfitting an office with a speaker- phone
B) allowing dogs into the workplace
C) creating wheelchair access
D) installing ergonomic workstations
E) each of the above could be required

Question 12

Claire stretches crusts at a local pizzeria. One day, Claire showed up 10 minutes late with beer on his breath. (He had a couple of beers a few hours before coming to work.) When asked by his supervisor whether he had been drinking, he told the truth and said that he was not drunk but only energized. And he proved it by stretching pizza crusts twice as fast as either of his two co- workers. Concerned that others would think that drinking before work was an acceptable behaviour, his supervisor decided to make an example of Claire. He sent him home about an hour into the shift and told him that he would receive his final cheque in the mail. Which of the following is most likely true?

A) Firing Claire was justified because Claire drank alcohol within 48 hours of a shift.
B) Firing Claire was justified only if he was a known abuser of alcohol.
C) Firing Claire was justified because to do otherwise would have been to condone Claire's behaviour.
D) Firing Claire was not justified because his job performance was unaffected.
E) Firing Claire was justified whether or not he posed a serious threat to the safety of the workplace.

Question 13

Which of the following is the clearest example of sexual harassment?

A) one colleague joking with another for the third time about going on a romantic weekend get- away together
B) the employer paying women a lower rate to do the same work
C) the employer requiring all women sales personnel to attend an evening cocktail party
D) the employer intentionally asking a female colleague rather than a male colleague to attend a business dinner
E) none of the above

Question 14

Daphne has worked for Eddie for two years. Last year, she elected to take her vacation during the winter so that she could fly south with her significant other. This year, she has asked to take a holiday in the summer. Eddie refuses, telling her that she must take her holidays at the same time of year from now on. Which of the following is true?

A) Daphne has the right to take her vacation whenever she likes.
B) Daphne's complaint will be dealt with by her local workplace advisory committee.
C) Eddie's refusal is most certainly a human rights violation.
D) Eddie and Daphne have no choice but to enter binding arbitration to resolve their dispute.
E) Eddie is perfectly within his rights to refuse Daphne's request.

Question 15

Which of the following best highlights the distinction between employees and independent contractors?

A) Employees owe a higher degree of loyalty.
B) Independent contractors can quit whenever they want without consequence.
C) Independent contractors do not need to pay income tax.
D) Employees need not remit some of their pay to workers' compensation.
E) none of the above

Question 16

Assuming that the general rules apply, an employee may be summarily dismissed

A) for missing a day of work without either permission in advance or condonation after the fact.
B) upon receipt of an unfavourable work performance report.
C) for any criminal behaviour, even if that behaviour occurred before the term of employment began.
D) if his or her breath smelled of alcohol and if that fact violated company policy.
E) after a single episode of employee theft.

Question 17

Which of the following best distinguishes constructive dismissal from summary dismissal?

A) In the case of summary dismissal, a unilateral decision to alter an employee's status is said to amount to dismissal.
B) In the case of constructive dismissal, the employee is dismissed without notice.
C) In the case of summary dismissal, the employee is not actually fired.
D) In the case of constructive dismissal, the employee is not actually fired.
E) In the case of constructive dismissal, the employee is offered a settlement package in exchange for a resignation letter.

Question 18

La Batootski Sandwiches Inc is hiring a sandwich maker (due to the enthusiastic response they receive each year from Italian tourists visiting for the summer). In addition to the requirement of being able to make a mean turkey and provolone, which of the following characteristics might be justified as a bona fide occupational requirement?

A) proof of Italian ancestry
B) 20/20 vision
C) proof of an Italian post- secondary education
D) applicant may be single or married but not divorced
E) ability to converse in Italian

Question 19

Employees are entitled to leaves from the workplace under Employment Standards legislation for which of the following circumstances?

A) bereavement
B) pregnancy
C) child- rearing
D) vacation
E) all of the above

Question 20

Percy seems to lack the basic skills necessary to do her job. Which of the following is true?

A) To manage risk, her employer should tell her that her work is substandard, develop a process for improvement and tell her that she will be fired if she is unable to improve.
B) To increase profitability, she should be fired immediately.
C) To prove incompetence, her employer need only show that her job could have been done better.
D) To claim this as the ground for summary dismissal, her employer must demonstrate that she once had the skill.
E) To increase profitability, she should be moved into an easier job-even if that means promoting her.

Question 21

Wrongful dismissal occurs when an employee is

A) dismissed without just cause but with money in lieu.
B) dismissed without just cause but with reasonable notice (or money in lieu).
C) summarily dismissed for wrongful conduct in the course of employment.
D) dismissed with just cause but without reasonable notice or money in lieu.
E) dismissed without just cause and without reasonable notice (or money in lieu).

Question 22

When a safety standard has been breached in the workplace, the employer will be subject to a corresponding fine

A) no matter what.
B) only if it has not put into effect a workplace advisory committee.
C) depending on whether it is able to prove due diligence.
D) only if a worker was hurt as a result.
E) none of the above

Question 23

Which of the following descriptions of workers' compensation schemes is true?

A) Workers' compensation schemes are funded through employer on an opt- in basis.
B) Compensation for partial disability is based on the difference between pre- accident earning capacity and post- accident spending capacity.
C) Workers who suffer a partial, though temporary, incapacity are paid the same as they were prior to the accident during the length of their recovery.
D) If a worker is killed during employment, no money comes out of the accident fund.
E) none of the above

Question 24

Tracy has been on the job for six months now, but is failing to live up to her employer's initial expectations. From the perspective of risk management, what is the prudent course of action?

A) suspend Tracey with pay and ask her to spend the time away from work redefining her job description
B) promote Tracey into a different position
C) commence a program of progressive discipline
D) conduct and document a performance review
E) fire Tracy immediately while she is still in the probationary period

Question 25

Obie has worked for Force Security Systems for ten years. Although the relationship was happy and mutually- advantageous for the first eight years, the situation has been terrible for the past two years. Obie feels neglected and unappreciated, and the company questions his loyalty. As a result, each party is secretly looking for a way to end the relationship in the best way possible. Which of the following statements is TRUE?

A) If Force Security terminates Obie's employment, the duty to mitigate will require the company to ease Obie's return to the work force by doing things like writing reference letters.
B) Depending upon the circumstances, if Obie is summarily dismissed from his position as a senior executive with Force Security, he can expect to receive between 24 and 36 months worth of payment in lieu of notice.
C) While Force Security is required to provide Obie with either notice of termination or payment in lieu of notice, Obie is entitled to leave the company at any time without incurring any obligations or liabilities.
D) If Force Security acts in bad faith when it fires Obie, a court may award damages for bad faith dismissal, in addition to any other remedies Obie might have.
E) Each party must provide notice (or payment in lieu of notice) if it intends to terminate the employment relationship, and that notice period will be the same whether it applies to Obie or to Force Security.

Question 26

Which of the following examples of employee behaviour would most likely be seen as disobedience warranting dismissal?

A) refusing to carry out duties because of illness
B) refusing to do as instructed out of a concern for safety
C) criticizing the ways that the employer does business
D) a repeated failure to follow instructions
E) all of the above

Question 27

Which of the following items may be asked in an employment application without offending human rights legislation concerned with employment standard?

A) please specify martial status
B) Are you legally entitled to work in Canada?
C) What church do you go to?
D) specify an emergency contact and your relationship to that person
E) none of the above

Question 28

Suess was a model employee and future superstar in the corporation. Thinking that he was about to be offered a promotion, Suess was called into his manager's office where he was told that he was about to become the next victim of a projected economic downturn. To keep his job, Suess was told that he would have to take a 50 percent pay cut and move from Vancouver to Winnipeg. Which of the following is true?

A) Suess has been wrongfully dismissed.
B) Suess was constructively dismissed.
C) Suess was entitled to a remedy for summary dismissal.
D) The projected future economic downturn was just cause for dismissal.
E) Suess is obliged to move to Winnipeg or resign.

Question 29

In deciding whether a worker is an employee or an independent contractor, a judge will

A) be substantially influenced by the fact that independent contractors almost always earn more than employees for doing the same work.
B) be most influenced by the fairness of imposing vicarious liability as a result of the worker's tortious conduct.
C) usually resolve the issue on the basis of presumptions.
D) always give effect to the literal terms of the parties' contract.
E) none of the above.

Question 30

Garth was accused by his employer, Redav Inc, of acting in conflict of interest. Garth denies the allegation. Both parties realize, however, that if they take the issue to court, they will both lose precious time and money. The parties have therefore entered into an agreement regarding Garth's departure from the company. Which of the following statements is TRUE?

A) The phrases "severance pay," "severance package," and "settlement package" mean the same thing.
B) By accepting a severance package, Garth gives up the right to sue the company for wrongful dismissal.
C) By merely persuading Garth to sign a release, Redav Inc will eliminate the risk of later being sued by him.
D) If Redav Inc agrees to provide severance pay, Garth will receive payment in lieu of notice, as well as several other payments, including his past contributions to the Canada Pension Plan, vacation and sick pay, and an amount equal in value to the bonus payments that other employees in his position have received in the past fiscal year.
E) Redav Inc is not obligated to provide Garth with a severance package unless the parties agree otherwise.

Question 31

Which of the following entitlements are both employees and independent contractors provided for by statute?

A) reasonable notice of termination
B) vacation pay
C) overtime pay
D) severance pay
E) none of the above

Question 32

Graham has worked for a department of the federal government for seven years. For the past six months, he has repeatedly complained to his supervisor, Cheryl, about sexual harassment in the work place. He claims that several of his colleagues, both female and male, have persistently commented on his physical appearance, asked him for dates even after he rejected their offers, and allowed sexually explicit materials to be seen on work station computers. Cheryl initially responded to Graham's complaints in good nature by telling him to "loosen up," "take a joke," and "be a man, for goodness sake." More recently, however, she has grown impatient, and has simply told him to "get back to work." Which of the following statements is TRUE?

A) Graham's claims of harassment will be successful only if he proves that the accused individuals intended to cause him grief
B) while changes have been proposed, it currently is impossible for a man to succeed in an action for sexual harassment
C) Graham's employer may be held vicariously liable for failing to actively prevent or inhibit sexual harassment
D) sexual harassment requires proof of at least one incident in which the victim was touched in an offensive manner
E) none of the above

Question 33

A written release

A) is the employer's written promise to bring an end to the employment dispute.
B) is a provision in the employment contract that allows an employer to dismiss an employee without notice.
C) is a provision in the employment contract that allows the employee to work for someone else without notice.
D) is part of a severance package.
E) none of the above

Question 34

Which type of dismissal occurs when an employer fundamentally changes the nature of an employee's job?

A) wrongful
B) constructive
C) conflict
D) summary
E) severance

Question 35

Jason is a notoriously lazy individual. Consequently, while he recently returned to the work force after exhausting his eligibility for employment insurance benefits, he is anxious to earn as much as possible while doing no more than is necessary for his new employer, Big Boy Pants and Shoes (BBPS). Which of the following statements is TRUE?

A) Employment standards legislation states that Jason is entitled to an annual vacation, and that he is entitled to take his vacation whenever he wants to do so.
B) Minimum wage rules apply only if Jason is paid on an hourly basis.
C) Employment standards legislation prohibits BBPS from asking Jason to work on a statutory holiday, and must instead ask its employees for volunteers.
D) Jason is entitled to take time off work to vote on election days.
E) Jason is entitled to a fifteen minute rest period every two hours.

Question 36

Summary dismissal

A) means that the employer had just cause.
B) is the same thing as wrongful dismissal.
C) means that the employee is dismissed with notice.
D) means that the employee is dismissed with reasonable notice.
E) means that the employee is dismissed without notice.

Question 37

Which of the following is the best example of a conflict of interest?

A) accepting gifts from competitors
B) teaching a college course based on skills learned at the workplace
C) taking a part- time night job unrelated to your full- time employment
D) not telling your employer that you have been accused of a criminal offence
E) giving common sense advice to a friend who is trying to get a job with your employer

Question 38

Indirect discrimination in the workplace

A) is an acceptable practice in some provinces.
B) can be distinguished from direct discrimination on the basis of the wrongdoers intention.
C) does not involve adopting a rule or practice that treats a person differently.
D) has an adverse effect on at least one employee.
E) occurs when someone outside the employment setting behaves in a discriminatory fashion.

Question 39

From a risk management perspective, the value of a performance review is enhanced if

A) the employer provides the employee with two notarized copies of the review.
B) the employer tailors the review differently for each individual.
C) the employer gives a day off to employees that receive outstanding reviews.
D) the employer posts the review in a public area.
E) the employer conducts the review in accordance with some standard, usually a form that both parties can sign upon completion of the review process.

Question 40

Hermann is a hair products distributor who works out of his second- story walk- up apartment. His business has expanded (making a profit of $136 000 last year). He decided to hire someone to answer the phones on Tuesday and Thursday afternoon while he does deliveries. After interviewing Waldzell, he offers her the position. After one week on the job, Waldzell returns from a ski- weekend with a badly broken hip and foot. It turns out she will need reconstructive surgery and, though mobile, she will be in a body cast for almost a year. She will be able to get around by wheelchair. Unfortunately, the elevator in Hermann's building has been broken for over a year. Herman inquires into the cost of repair and finds out that it will be more than a million dollars. After an inquiry to his telephone provider, Hermann finds out that he is able to forward his calls and offers Waldzell to keep the job and work from home. She becomes indignant and claims a right to the same working conditions as before her accident. Seeking accommodation, she decides to bring a human rights complaint. Which of the following is true?

A) Although Hermann cannot be compelled to fix the elevator, the owner of the walk- up most certainly will.
B) Waldzell will win because in this case it is possible for the employer to make adaptations to the workplace by fixing the elevator.
C) Hermann will claim undue hardship and will likely succeed.
D) Hermann could be forced to close his business if he doesn't comply.
E) Waldzell will not be able to compel Hermann to fix the elevator but she will get compensatory damages in lieu thereof.

Question 41

Tawney had been working as a forest firefighter for two years. Tawney was one of the only women in her unit, but that did not stop her from winning the Firefighter of the Year badge for her region. Two weeks later, Tawney was notified that she had not passed one of the modules on a newly imposed province- wide fitness test and that, as a result, she would be dismissed. This module of the test required firefighters to run a 2.5 km course of uphill terrain in 11 minutes or under. Tawney had taken 11 minutes and 49 seconds. Because of her excellent record of service, she was given a severance package in excess of what was owed to her by law. Does Tawney have grounds for a complaint? Briefly describe the relevant considerations.

Question 42

Employees (as opposed to independent contractors) are always entitled to reasonable notice or money in lieu.

Question 43

The purpose of human rights legislation is remedial rather than punitive in nature.

Question 44

Professor Paine's performance reviews by the faculty in which he works always end on a positive note despite the fact that his work has been subject to serious criticism by both students and faculty alike. Most likely, this is due to the fact that the Professor is emotionally fragile and has previously been traumatized by receiving a negative review. Is it bad practice for the Dean of the Faculty to avoid an honest appraisal in order to save Professor Paine from having hurt feelings? Explain why.

Question 45

Can an employee claim to have been dismissed even if they were not fired? Are there any remedies available in such circumstances?

Question 46

Jerry is a 21- year- old waiter in Ontario. He is entitled to the same minimum wage as he would be if he lived in Quebec.

Question 47

All workers are entitled to certain minimum employment standards.

Question 48

Indira works full- time as a marketing assistant in a large corporation. She is thinking about having a baby. She wonders: Will she lose her job? If not, will she get paid while on leave? What happens if her colleague Diana is given her position and wants to keep it after she comes back? Provide answers to Indira's questions and name the governing legislation that provides the authority for your responses.

Question 49

A job description is a human resources document with no legal implications.

Question 50

A promotion entails new duties and not necessarily an increase in pay.

Question 51

Since positive reviews increase employee morale and are more pleasant to conduct, employers and managers should always give a positive review when appraising an employee's work habits.

Question 52

Statements made by both parties during hiring can have an effect on the employment contract.

Question 53

Tomaj is fired by his employer without reasonable notice. He is likely entitled to a severance package.

Question 54

An employer found by a court to owe an employee money in lieu of notice will never owe more than the amounts set out in employment standards legislation.

Question 55

List several items that may be included in an employee's severance package.

Question 56

Ji has failed to live up to his employer's expectations. The employer tells Ji that she has to learn to perform as well as Shawna. Ji responds by saying that she completes assigned tasks carefully and thoroughly but at her own pace. Nevertheless, since the employer can show that another employee can do a better job, she is justified in dismissing Ji.

Question 57

Big Brother Inc has instituted a new email policy for the workplace. In addition to outlawing the viewing of pornography and the dissemination of defamatory material, the policy also states that all email, both personal and otherwise, will be monitored by the corporation. In some provinces this entire policy would be void since employee monitoring violates the human rights of the employees.

Question 58

Chloe lives in Quebec. Her employer recently asked her to work on Canada Day. If she takes the shift, she is entitled to additional pay.

Question 59

Advertising a job position is risk free because there is no employment relationship at that time.

Question 60

An employee acting in the course of her assigned duties who causes injury to a third party is vicariously liable for damages.

Question 61

Dr. Greenwald, a well- known plastic surgeon, rents a substantial portion of office space in the Americas University Hospital, a for- profit organization. Greenwald generates his own income, which is billed by the hospital after which a percentage is remitted to him on a bi- monthly basis. The amount of revenue generated by Greenwald equals 40 percent of the hospital's total revenue. In addition to his very successful practice, he serves on the hospital's ethics committee and is one of its key fundraisers. Would the good doctor be considered an employee or an independent contractor? Apply the organization test.

Question 62

What is a release? Who signs it? The employer or the employee? Why?

Question 63

Mme Renaud, a university librarian, became concerned about her safety ever since she has heard that many other universities recently instituted asbestos removal projects. Until recently, many of her coworkers regarded her concern as mere paranoia. Yesterday, Mme Renaud substantiated her fear when a piece of ceiling tile labeled, "Danger - Contains Asbestos" fell on her head while she was checking out some books to a student. Briefly outline the steps that are available to her to ensure her safety and the safety of others working in and using the library facilities.

Question 64

Luke owns a lifeguard consulting company, supplying lifeguarding services to public and private schools in Kelowna. Luke has been charged with sexual harassment by one of his employees. The employee alleges that she and the other women lifeguards were forced to wear company bikinis while performing their lifeguarding duties. Those who refused would be given last choice on shifts (which, practically speaking, meant that they would be getting no shifts). The complainant protested to Luke but eventually gave in since it was too late in the summer to find another job. Additionally, the employee claims that, ever since the female staff was forced to wear the bikinis, Luke drops in constantly for site visits. His visits with females are more frequent and longer lasting. In fact, it is alleged that these visits have earned him the nickname of Lurking Luke. Several female employees have expressed that they find his behaviour unwelcome. Luke knows about his nickname but stands behind his policy. According to Luke business has increased and, as a result, there has been more to 'supervise' at each visit. Explain the concept of sexual harassment and apply it to the situation at hand.

Question 65

Legislation and common law precedents suggest that a prudent business manager should provide employers with a reasonable period of notice prior to dismissal. List four or five factors that the manager should consider when deciding on the reasonableness of the notice period to be provided.

Question 66

Stanislov is terminated as a result of an economic downturn. He is given a severance package that includes monies owing for all statutory obligations. He is told that by cashing the cheque, he waives any and all right to sue his employer for further sums. Is this correct?

Question 67

Explain the concept of a "job description." In which phase of the employment relationship is it created? What are the advantages of having a well- drafted job description for an employer?

Question 68

Describe some outcomes that you might expect to emerge from the court's decision on bad faith dismissal in
Honda Canada? Why do you expect these outcomes to arise?

Question 69

Sandy has repeatedly come into work under the influence of drugs and, on several occasions, has been warned that this behaviour cannot continue. List all of the relevant factors that a prudent risk manager will take into account in deciding whether to suspend or dismiss him.

Question 70

Suggest several means by which a manager can minimize the risk of vicarious liability for the actions of workers?