Ashwini Employment and labour laws also doAshwini Employment and labour laws also do

Ashwini
Thevar

PLAR Questions

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1.         A
business may pay the independent contractor and the employee the same for
similar work but both has a huge legal differences as an employee the company
is entitled for keeping some essential record of the employee which consists of
withholding income tax, Medicare from wage paid, social security but
for the independent contractor the company does not withhold
taxes. Employment and labour laws also do not apply to independent
contractors. Due to legal issues it is really important to distinguish between
independent contractor and an employee

2.         The
standard Common Law test indicates a worker is likely an employee if the
employer has control over what work is to be done and how to get it done. When
employers can only direct or control the result of the work done, the following
tests evolved under common law to distinguish between the employee and the
employer

(i) control test: Does
the organisation control the individual’s work including where, when and how it
is performed?

(ii) risk test: Does
the individual bear any financial risk of profit and loss?

(iii) Organization
test: Are the service rendered by the individual an integral part of the
business?

(iv) Tools test: Does
the individual provide his own tools?

(v) Durability and
exclusivity of relationship test: courts consider the permanence and
exclusivity of the parties relationship

3.         BFOQ
is
the acronym  BONA FIDE OCCUPATIONAL
QUALIFICATION. The concept BFOQ allows employers
Under section 24(1)(b) to hire individuals based on their age, sex, race,
national origin, or religion, if these specific qualifications are considered
essential to the job, or considered vital to the business operation.

4.         If the employer considers the following then
it may reduce the potential for a wrongful dismissal actions.

1.     
The employee’s age

2.     
The employee’s position

3.     
The employees length of service

4.     
The employee’s level of compensation

5.     
The availability of similar employment,
given employee’s experience ,training and qualifications.

 

5.         The essence of accommodation
lies in tailoring the workplace to meet the needs of the individual employee. According to the Ontario human rights
commission’s policy and guidelines on disability and the duty to accommodate,
the principle of accommodation involves three factors:

(i). Individualization: There is no
formula to determine when the duty to accommodate has been satisfied. Each
person’s needs are unique, a solution that meets one person’s requirements may
not meet another’s.

(ii). Dignity: People must be
accommodated in a manner that most respects their dignity, including their
privacy, confidentiality, comfort and autonomy. For example, a wheelchair
entrance over the loading dock or garbage room is unacceptable.

(iii). Inclusion: Job requirements
and workplaces must be designed with everyone in mind. And employer cannot base
systems or requirements on “normal employees” and then make
exceptions as people or groups and request them.

 

6.         ESA
sets minimum standards of the work which include covering the minimum wage,
hours of work and overtime, vacation entitlement, public holidays, statutory
leaves of absence, and termination and severance pay.

 

7.  .Workers’ rights
under OHSA include:

1.     
The “right to participate” to
be part of the process of identifying and resolving health and safety concerns.
This right is expressed mainly in the requirements for Joint
Health and Safety Committees and representatives.

2.     
The “right to know”
about any hazards to which they may be exposed. The requirements of the Workplace
Hazardous Materials Information System (WHMIS) are an
important example.

3.     
The “right to refuse work”
that they believe is dangerous and, under certain circumstances, certified
Joint Health and Safety Committee members can stop work that is dangerous.

The Act prohibits
reprisals being taken against workers who exercise these rights.

8.         (i)Blameworthy, or culpable,
absenteeism occurs when an employee fails to attend work without a
reasonable explanation.  For example takes a sick day when she is not
sick, is engaged in culpable absenteeism.

(ii)Innocent, or
non-culpable, absenteeism occurs when an employee is, for reasons outside
her control not able to work.  For example, an employee who cannot perform
her duties at work due to illness or injury is absent for non-culpable reasons.

9.         The
benefits under WSIA are

(i)Lost earnings on the day of injury:
Under section 24 of the WSIE provides that if a worker is unable to complete
his scheduled hours of work because of a work related injury or Illness the
employer must pay the worker the wages and the benefits that he would have on
for the day or shift on which the injury occurred.

(ii)Healthcare costs: Healthcare costs associated with the work related
injury or disease-such as chiropractic care, dental, prescription drugs, and
artificial limbs-are covered by the WSIB . Also covered are modifications to a
workers home or vehicle.

(iii) Lots of earnings benefits: Loss
of earnings benefits are calculated at 85 percentage of an injured workers net
earnings-that is earnings after income tax, Canada pension plan premiums, and
employment insurance deduction are factored out.

 

10.       Substance abuse is considered to be a disability and thus a prohibited
ground of discrimination. And employer therefore cannot discriminate an
employee for substance abuse, instead, it must accommodate the employee to the
point of undue hardship. In reality, accommodating an employee with a
substance-abuse problem means rehabilitation service or allowing time off work
to attend the services. There is no rule of thumb concerning how long an employee
must be given to overcome his disability every case depends on its facts. At a
certain point, however, in rehabilitation  efforts are not successful and
the employees continue dependency adversely affects the workplace and employer
can dismiss and employee on the basis of just cause or frustration of contract.

 

11.       Constructive
dismissal is a type of dismissal without cause. In this situation an employer
does not explicitly dismiss and employee. Rather, constructive dismissal occurs
under the common-law when an employer unilaterally makes a fundamental change
to the employment agreement without a reasonable notice, this fundamental
breach of contract by the employer entitles the employee, generally speaking, to
resign in response and claim damages from the employer for pay in Lieu of
reasonable notice. what constitutes constructive dismissal are changes to
compensation package, changes in duties, geographic locations, change to the
other terms, and  untenable work
environment.

 

12.       Yes the employees have to serve notice
when they leave and the employment should be more than 3 months. Individual notice period range from 1
to 8 weeks depending on an employee’s length of service. And employer may
provide an employee with a combination of written notice and termination pay as
long as together they equal the required number of weeks notice. Alternatively
the employer may provide employer employee with payment in Lieu of notice for
the entire period.

 

 

 

Case Study

1.a. The alleged grounds of discrimination on Monique  was off “body appearance” because
she wore a nose ring and was rejected by the employer as the desire the
employer wanted the employees to avoid displaying body piercing or tattoos.
b. I have two approaches for this case and in
both the approach the employer has contravene the code.
(i) If the nose ring which Monique wears is for
a religious purpose, then as per Ontario’s human rights code  the employer has the responsibility to
accommodate the special needs of the protected individual unless doing so would
create undue hardship for employer.

(ii) if the nose ring is not for a religious
purpose then working in a food and beverage work place it’s really hazardous to
the employee because it may hook to some other employee or in some edges or
pointed material which might lead to an work place injury and as per employers
protocol the employees must be neatly groomed in appearance and to avoid
displaying body piercing or tattoos. All these conditions the employer could
have explained in details to Monique and could have come down to a settlement
about removing the nose ring at work should have been done instead of not
hiring an individual due to wearing a nose ring is not right because hiring an
individual should be done on the bases of the 
skills, knowledge and abilities but not on body appearances.

 

2.This case has a limited information because am not sure
whether the inaccurate information is about what whether his previous health
records or his previous employment record or any other purpose considering the
facts given for the case in concluded my opinion in 2 different ways.

(i)The employer would have considered whether the misconduct
was planned and deliberate or a momentary error in judgment by Tom. Then he
would have assess toms position, length of service, performance record and
pervious conduct. and at the last consider his response to allegation such as
his admission or denial on inaccurate information. If admitted  then the employer can give him a chance to
continue work as his work performance is satisfactory or if he is denying there
would be a less chance that his behaviour is going to change and company could
ask him to serve the notice as per the required time to be served and leave.
(ii)If tom would have violated an essential
condition in the employment contract or breached the bonds between the employer
and him then he could be terminated without a notice

3.Accessing the confidential and sensitive  information without the permission of the
employer is considered as unprofessionalism , considering the fact that Sasha
is been employed for so long in the company the employer would have given Sasha
the benefit of doubt and would have given warning for her mistake but
dismissing her for just cause should not be done because Sasha did not do any
material financial loss or any loss that had jeopardise the company’s
credibility neither Sasha did an activity of insubordination or insolence and
also it did not involve any money transaction it was out of curiosity she did
the mistake of accessing the information, so in my view the employer cannot
dismiss Sasha for just cause.

Legislation

            As a result of a federal system of government with a
division of legislative powers, human rights statutes have been enacted in
Canada at the federal, provincial and territorial levels. As well the human
rights guarantees were entrenched in the Constitution of Canada by means of
the Canadian Charter of Rights and Freedoms.

            The human rights legislation is not
the most powerful code under the constitution there are some other laws to
which would levels of the government can legislate and take a decision on the
cases like “civil and property rights” or “peace and order”
code. Both federal and provincial legislatures have enacted anti-discrimination
laws the federal has the Canadian human rights act which applies to
federal government departments and agencies, Crown corporations, federal
regulated business such as banking, transportation, broadcast although there is
some difference  among the jurisdictions, the principal and the
enforcement mechanism of these human rights law are essentially the same the statute
prohibits discrimination on unspecified grounds such as race, sex, age and
religion in the context of employment. human rights legislation is totally  complain based, he or she can file a
complaint if they feel that they have been discriminated and the case decision
is been taken by the human rights commission.

 

            The Canadian charter of rights and
freedoms  is the part of the constitution of Canada the constitution of
Canada is the supreme law of Canada which is from a powerful legislation. The
Canadian charter of rights and freedom states equality to every individual in
the community.

Section
15(1) provides “Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability”. Hence The Canadian Charter
of Rights and Freedoms applies to any federal, provincial or municipal law
or regulation, as well as to any governmental activity. Human rights legislation,
on the other hand, prohibits discriminatory practices in both the private and
public sectors, but only with respect to certain economic activities, such as
employment and publicly available services and accommodation. Therefore, an
overlap between human rights Acts and the Charter will exist where it can be
shown that the practice at issue is an act of government that took place in the
context of employment or the provision of services, facilities or
accommodation.

            Every
individual should know the rights for which they are been entitled and should
follow in every aspect of their life, whether it be employment relationship or
a formal relationship the legislation states the laws which should  be followed as an employer or an employee it
gives you hope to fight back the wrong aspect against you. Both the legislation
states no discrimination and right to sue anybody who is discriminating you it
also provides equality and respect which is a crucial protocol of employer and
employee relationship.