Understanding Employment Law: Regimes, Contracts, and Torts

Posted on May 17, 2024 in Law & Jurisprudence

Chapter 1: Common Law of Employment

Common Law Regime

Judge-made rules of contract and tort law

Regulatory Standards Regime

Employment standards, human rights, health safety

Pay equity, compensation

Stare Decisis (Stand by previous decision)

1) Common Law Regime

a) Law of Employment Contracts (Rules of contract law applied to contracts between employer and individual employees)

b) Law of Torts: Judge-made legal wrongs not based in contract (nuisance, negligence, battery, defamation)

The Law of Torts

Torts are legal wrongs harmed by actions of others to obtain legal relief in the form of damages (money) and injunctions (stop their harmful behavior). Lots of torts can have application to the employment relationship, including negligence, defamation, nuisance, deceit, and conspiracy.

2) Regulatory Regime

The regulatory regime is a response to inequality of bargaining.

• Wages too low – Minimum Wage
• Hours too long – Max hours of work
• Discriminatory practices – Human rights/pay equity
• Dangerous working conditions – OHS

Human rights, employment standards

3) Collective Bargaining Regime

Addresses inequality of bargaining; join together instead of individual employees, unions, employee associations, employer and employer associations.

Tort (haksiz fii)-made laws regulating unions and the unionization process, collective bargaining, strikes/lockouts, found in labor relations legislation which is enforced by labor relations boards.

• Rules bargained by unions & employers found in collective agreements which are enforced by labor arbitrators.
• Common law torts applied to collective worker activities (picketing) and enforced by courts.

Chapter 4: Ontario Employment Standards Act

Employee: who performs for employer

• A person who supplies a service to an employer for wages
• A person who receives training from an employer
• A person who is a homeworker

Independent Contractor

• Business people capable of protecting their interests
• Distinguish employee vs. independent contractor

Tests to Determine Employment Status

1) Control Test:

Considered the degree to which the business had control over the performance of the work.

2) Fourfold Test:

1. Control
2. Ownership of tools
3. Chance of profit
4. Risk of loss

3) Organization Test:

Considered whether the work performed was integral to the core undertakings of the business.

Employee vs. Independent Contractor