Common Law Issues in
Hiring
What we covered:
We made it through Chapter 3 (Common Law Issues, Hiring), but not
Chapter 2 (Human Rights Issues, Hiring).
1. What is an Employee?
Only an ‘employee’ is covered by common law of employment and by
Employment Regulation. So important to know if relationship is one based
on employment, or whether the worker is an ‘independent contractor’ in business
for him/herself.
We considered the case of a Taxi Driver: employee or
self-employed? [Additional Reading considers this: Deek v. Blue Line Taxi]. And my example of
a deck-builder retained to build you a back deck: is that person your
employee, or not? How do we know?
We considered reasons why an Er may prefer to have ‘independent contractors’ over ees (discussed in
text)
There is a continuum:
Clearly an employee
--------------------------------------------------------- clearly
self-employed (independent operator)
Between
extremes, there are lots of difficult cases where not clear which one we are
dealing with
Test for
“employment’
Various tests appear in cases, but several factors are most important:
Control (does the organization have daily control over the way the work
is performed?); Who Bears Risk of loss and chance of profit?;
”Organizational Test” (is the worker ‘integral’ to the operation?);
Ownership of tools; Exclusivity of relationship (does the worker have
other customers? Does the relationship look like a
permanent one? )
Court of Appeal considers these issues in Belton v. Liberty
Insurance
(p. 62): pay attention to the factors that influence the Court’s decision
about whether the sales reps are ‘employees’ or not. Worker found to be an employee, even though
contract said he was an independent contractor. Courts look beyond the language in contract and apply the
tests identified in the text.
What about ‘temp’ employees? Is the employer the ‘temp’ agency, or
the organization that the temp is sent to work for? Again, court would apply the tests, and not feel bound by
how parties have characterized the relationship
2.
Hiring: Common Law Issues
We began by asking how employers chose their employees, provided there were no statutes that regulated this decision.
I suggested that answer may depend on your perspective: if critical race or feminist theorist, you may argue that decisions ‘tainted’ by prejudices about gender roles and racial stereotypes.... i.e. white men will tend to prefer white men, or to assume there is ‘women’s work’ and ‘men’s work, etc. Therefore, might argue that ‘law’ must intervene to prevent these biases from dominating labour market
If classical economist, would argue that ers chose most productive workers they can get for price offered – supply and demand. And that a discriminating ER will ultimately be put out of business if discriminating is inefficient. Therefore, may argue that law needn’t regulate hiring, since markets will ensure more efficient outcomes/
A. Discrimination
in Hiring Under the Common Law
We considered Christie v. York (p. 26, text), noting that Supreme Court ruled that there is no common law rule against discrimination in contracts. We then jumped ahead 40 years to Bhadauria where the SCC again ruled that Seneca College did not infringe any common law rule if in fact it had refused to hire Ms Bhadauria because of her ethnic origin. The Court said that discrimination in employment is dealt with by human rights statutes, not common law.
So, common law courts play a limited role in the recruitment stage. They have created some rules about representations during recruitment stage. We considered several:
B. Misrepresentation by Employees
An employee who lies during interview stage may give employer grounds to dismiss her later 'with cause' (meaning without notice) because this is treated as dishonesty.
C. Misrepresentations by Employers
We discussed 3 areas of concern courts have in regards to employer conduct during recruitment process:
a. Negligent Misrepresentation:
Er lies, makes a false claim (even if not intentional) or fails to disclose key information to employee that might have influenced employee's decision whether to accept employment. Employees later suffers harm as a result.
We discussed Queen v. Cognos (p. 55): Er found to have a duty beyond simply being honest. It cannot withhold information that would have been important to EE’s decision whether to accept job. Er negligently misrepresented job to Queen by not disclosing that job needed external funding. Er must pay damages to Queen to compensate him for losses
b. Inducement: Er aggressively recruits ee from another job, and then things go bad once ee gets there. Court may order longer notice period when this happens.
c. Anticipatory breach of contract: Er offers jobs, but then renegs before the job starts. Since prospective ees made arrangements to start, they may be out of pocket. Possible Er making offer could be held liable for some or all of those costs. We noted how this issue might come up at Ford in Oakville, which offered jobs to 350 people, but then recanted on the offers. We looked at the blog entry on this.