...concepts behind and an analysis of an employment contract between Sam Marafioti and the Sunnybrook Health Sciences Center. The goal of this paper is to better understand contract law and the legal, ethical and contractual issues that can arise when dealing with an employment contract. The paper begins by explaining the objective of the paper and the used in order to complete the objective. The methodology used is a five step process beginning with the clauses within the contract being defined. This creates an easier reference for a reader without any legal background. The clauses are stated in an easily understandable format in order to better understand the agreement used in the analysis. This precedes the section where all legal concepts within the contract are defined. The legal concepts are used in order to better understand the meaning of the contract. They explain both the what, and the why each clauses exists and how they interact with the signer. The ethical issues within the contract are then showcased. The law is considered the minimum standard of ethics and as such there can be ethical issues for the signer. The process of termination is then analysed to better understand how the clauses within the contract work in a real scenario and can prepare the reader for their own employment termination. Finally, my personal recommendations regarding legal issues and lessons learned are displayed. This section shows how the contract could be improved on and recommendations...
Words: 9375 - Pages: 38
...Agency workers Agency workers enter into engagement with an employment agency and are sent by that agency to work for a third party – an end user. Is the agency worker an employee of (a) the agency, or (b) of the end user? (a) The worker- agency relationship In Construction Industry Training Board v. Labour Force Ltd [1] it was held that unskilled or building workers hired by employment agencies were not in a relationship of employment with the agency. The end-user paid the wages to the agency, and had the right to control the men as to what to do, and to require the agency to remove a man at three days notice (or in the case of misbehaviour, forthwith). The court considered it decisive against the identification of an employment relationship with the agency that no control was exercised by the agency over the workers. This approach was followed in Ireland. In Brightwater Selection v. Minister for Social and Family Affairs [2] a Social welfare appeals officer held that a worker sent by an agency to UCD to work in the administration section worked under the control of the agency: ‘the requirement to notify them of any changes in relation to responsibility, hours worked, pay, grievances… to produce a time sheet’. However, the High Court held that these minimal administrative obligations were not equivalent to control. The High Court held that in determining whether control exists, the alleged employer must not only have the right to tell the individual what...
Words: 4148 - Pages: 17
...INTRODUCTION The law on employment contracts in Zambia is governed by the established English law of contracts and Statute, the Employment Act. To be legally binding a contract of employment must therefore fulfil all the normal contractual requirements. (A) DETERMINATION OF THE EXISTENCE OF A CONTRACT OF EMPLOYMENT AND TERMINATION In order to determine and delineate employees from other contractual relations, the courts have devised tests to help identify employees: 1. THE CONTROL TEST This was the first test to be evolved. Under this test the greater the extent to which a person is under the direction of and control of another person, the more likely he or she is an employee. The control test is satisfied if a person controlled both what another person is to do and how to do it. However, as the size and complexity of business increased and employees became more skilled and professional, employment relations became more impersonal. The control test was therefore less effective and even when a ‘right to control’ was substituted for actual control it was not possible to draw the correct distinctions with only one test. The courts developed other tests; 2. THE INTERGRATION TEST Under this test also called the ‘organization test’ if the person doing the work and the work he does is an integral part of the business, rather than an accessory to it, then the person will be an employee. This test is useful in the case of professional employees, such as doctors who may be an integral...
Words: 6896 - Pages: 28
...Provide an outline of the key perspectives of the employment relationship that inform our understanding of HRM. Workshop Tutor: Andrew Burnett Table of content Introduction 3 How can HRM be understood? 4 What is employment relationship? 4 Elements of employment relationship 4 What is individual contract of employment and how it works? 5 Duties of employer and employees 6 What is psychological contract? 6 Socio-political dimension of the employment relationship 8 Conclusions 9 References 10 Introduction What will be covered in this essay? This essay will reflect on what is employment relationship in HRM. What is the purpose in applying of HRM practices, why it is so important to manage people, their performance and expectations. How we can “ensure that individual have the ability, motivation and opportunity to perform effectively” (Wilton, 2013). This course-work will look closer what is an employment relationship, how it affects individuals in the workplace and company in total. It will also cover the elements of employment relationship, terms and conditions that affect both employer and employee, what are duties both parties need to comply. It will be explained what is contract of employment and psychological contract and why it affect individual attitude. After that, the three key perspectives are outlined on employment that are unitarism, pluralism and radical(Marxist). Each approach to employment relationships is different in the ideology, who...
Words: 1993 - Pages: 8
...Contracts for Services A guide for employers and managers A-Z of Employing - published by EMA ADVICE In this guide to Contracts for Services: OVERVIEW INTRODUCTION DEFINITIONS Contract for service EMPLOYERS & MANUFACTURERS ASSOCIATION (NORTHERN) INC 159 Khyber Pass Road Grafton, Auckland New Zealand. Private Bag 92066 Auckland 1030. Contract of service MEANING OF EMPLOYEE TESTS Control Integration Fundamental or economic reality test Independence Intention APPLICATION OF LAW BEST PRACTICE CHART OF DIFFERENCES APPENDICES: IRD CHECKLISTS Appendix 1: Control test checklist Appendix 2: Integration test checklist AdviceLine For telephone advice and assistance, call or email the EMA AdviceLine and talk to one of our employer advisors: 09 367 0909 or 0800 800 362 AdviceLine@ema.co.nz Appendix 3: Independent test checklist Appendix 4: Intention test checklist Appendix 5: Economic reality test checklist Appendix 6: Employee Checklist 2 2 3 3 3 3 4 5 5 5 6 6 6 7 8 9 9 11 12 13 14 14 A-Z of Employing is available to EMA members only, via email, or online at www.emadvice.co.nz Contact AdviceLine to obtain your password. AdviceLine is open 8am – 8pm Monday to Friday (excluding public holidays) Contracts for Services OVERVIEW 1 2 3 A contract for service contrasts with a contract of service. An employee is a person under a contract of service and a contractor is a person who enters into a contract for service. The concern with the correct classification of a relationship...
Words: 4676 - Pages: 19
...Contract employment LEGAL ENVIRONMENT AND INDUSTRIAL LEGISLATIONS [Type the phone number] [Type the fax number] [Pick the date] DIVYA.R ABSTRACT The purpose of this study is to 1) Define contract employment and outline its importance. 2) To discuss employee’s perception about contract employment. 3) To discuss the future of contract employment in India. INTRODUCTION CONTRACT OF EMPLOYMENT DEFINITION A contract of employment is a bilateral agreement for the exchange of service and remuneration over a period of time. Employment contract is that form of contract for personal service which the courts recognize as expressing the social relationship of employer and employee, as opposed to the other relationships. ESSENTIAL FEATURES: The essential features of contract of employment are * offer * acceptance * consideration * competent parties * legal object and * free consent. LITERATURE REVIEW NATURE OF CONTRACT EMPLOYMENT A contract of employment also contains various other terms and conditions to which both employee and employer are bound. A breach of such terms and condition will repudiate the contract. The terms and conditions are regarding wages, status designated, place of working, timings, list of benefits to be given during employment, restraint of trade, if any etc. Another important condition is regarding the settlement of disputes between the employer and the employee. The terms and conditions...
Words: 1914 - Pages: 8
...Analysis of Employment Contract | Business Law | Student Number: XXXXX Dated: December 5, 2013. | Contents 1.ExecutiveSummary……………………………………………………………………………………………….……………………..……4 2.Introduction:………………………………………………………..…………………………………………………………………..……….5 Overview:………………………..………………………………………………….……………...5 Objective:……………...……………….…….………...……………….…………………………….6 Methodology:…………………………………..………….……………………….………………7 3. Description and Explanation of Contract Clauses:……………………..………………………..……………………..…..11 Definations:………………………………………………………....…………………………………………………………………......11 Section1: Superintendent, CEO and Secretary for the Board:…………………….……............................12 Section2: Term of Employment..………………………………………………….….............................................12 Section3: General terms and Conditions of Employment…..…………...……..………….……………….……..12 Section4:PowerandDuties(Responsibilities)…………………..…………………………..…...….………………...……13 Section5:Evaluation……………………………………………………………………..…..............................................18 Section6:Salary…..…………………………………………………………………….…………………………………………...…...19 Section7: Expenses/Allowances 21 Section8: Professional Schedule 23 Section9: Other Benefits 23 Section10: Professional Organizations/Activities...……………………………………………………………………….27 Section11: Waiver of Credential Status………………………………………………………………..……………………….27 Section12:...
Words: 11921 - Pages: 48
...PROBATIONER IN THE EYES OF LAW E. M. RAO Senior Manager – Corporate Industrial Relations IDL Chemicals Ltd., Hyderabad INTRODUCTION Probation is a period of time during which a person is put to test or trial, for a final assessment of his fitness or otherwise for the post to which he/she is appointed. As per the traditional view, it conferred an inalienable right on the employer to dispense with the services of a probationer at any time during the period of probation without assigning any reason and without notice or compensation in lieu of notice. This right of the employer was considered absolute throughout the period of probation and there was no relief for the probationers in the event of termination before the expiry of he period of probation. This traditional understanding prompted the employers to frame the Standing Orders and the individual contracts of employment in this regard. This customary view, however, no longer holds good. STATUS OF THE PROBATIONER Before the expiry of Probation The Supreme Court in the famous case of Express Newspapers Lid. v. Labour Court,2 held that without anything more an appointment on probation for six months gives the employer no right to terminate the services of an employee before six months had expired except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent workman could be terminated. At the end of six-month period, the employer can either confirm him or terminate...
Words: 3924 - Pages: 16
... This case is primary based on several aspects, included in the Employment Rights Act. According to the text, we have a summary dismissal based on gross misconduct in the form of gross disobedience and insolence. First of all, a case of dismissal is when the employer terminates an employee’s contract. The expiry of a fixed term contract is also considered as a dismissal. In contradistinction from this, a resignation is more likely to be considered as something different. Resignation is normally examined to be termination by the employee, not the employer, therefore when an employee resigns, no dismissal has taken into place. According to our case, we have something more that ordinary dismissal, namely summary dismissal. Summary dismissal always occurs when the contract is terminated instantly, without any try of notice. “Summary dismissal” or “Instant dismissal” is the dismissal of an employee on the spot and without notice. To be more precise, we can conclude that, summary dismissal could terminate the contract of an employee even with notice, in some cases. Another way is by notification. This could happen by giving notice which includes, or is accompanied by a statement in writing that the employer would, by reason of the employee’s conduct, be entitled to terminate the contract without notice. (Employment Rights Act, 1996) Normally, an employee will be entitled to the notice period provided by the contract that he or she was signed or to the relevant statutory notice period...
Words: 3875 - Pages: 16
...Q1 – Understand the purpose of employment regulation and the way it is enforced in practice. Explain the purpose of employment law and how it is enforced. Describe the role played by the tribunal and courts system in enforcing employment law. Include how cases are settled before and during formal legal proceedings. (1.1, 1.2, 1.3) 1.1 – Explain the aims and objectives of employment regulation Employment law dates back to the 14th century, with the first labour legislation, the Ordinance of labourers passed in 1349 and consisted of regulations and price controls issued by King Edward 111. The purpose of the legislation was to maintain wages at rates to be fixed from time to time by the Justice of the peace. The ordinance was written in response to the outbreak of the plague in England. However, it wasn’t until the early 19th century that we begin to see the first significant change in employment law, the speed of change and innovation gave ever increasing legal protection to workers. Laws are critical in every society and country, they are created to ensure fairness and justice. In the instance of employment law they aim to protect both employers and employees, promoting ethical standards and protecting human rights. This of course can be said for the purpose of all legislation. There are four main sources of English Law, they are Statute (acts of parliament), Regulations (statutory), Common Law and Codes of Practice (e.g Acas). Statute law is led by government and is made...
Words: 5009 - Pages: 21
...A breach of an employment contract can occur where the parties to a contract fail to perform, precisely and exactly their obligation under the contract. A breach of contract by either party entitles the other party to either accept the breach or sue for damages, or to reject it and sue for specific performance. There are different types of breach of contract that can occur, according to M.R. Freedland. one type is the anticipatory Breach which was particularly developed in relation to the contract of employment to give immediate remedy to the employer for an anticipatory repudiation by the employee and occurs when a party to a contract repudiates his/her obligations under that contract before fully performing those obligations. The recognition of this type of breach occurred in Hochster v De la tour (1853)2 E&B 678 where it was held that the plaintiff, who was engaged by the defendant for three months service as a courier and notified before the engagement begun that that he would not be required, had an immediate action for damages for anticipatory wrongful dismissal, without the necessity to wait for the date on which the service should have begun. M.R. Freedland(1976) The possible remedies one can obtain in Litigation may include the following: Damages - According to M.R Freedland (1976) the remedy for damages for wrongful dismissal or breach of contract of employment is the most important remedy given by the common law, or by the rule of equity for the protection of...
Words: 1662 - Pages: 7
...EMPLOYMENT ESSAY Legislation to protect and encourage "whistleblowing" in relation to work issues has proved inadequate.' Discuss. Whistleblowing by definition is when an employee provides information of illegal activity or any other wrong doing to their employer or supervisor. The concern raised by the employee may be about a fellow employee, a third party outside of the workplace or even the employer and the employee does not necessarily have to be directly affected by the illegal activity to have the right to disclose it. The general consensus is that an employee who makes a “protected disclosure” that is in the public interest should be protected by law from any unfair treatment resulting in making the disclosure. In this essay I will evaluate whether the law protects whistleblowers adequately. Prior to the Public Interest Disclosure Act 1998 coming into force on the 2nd of July 1999, whistleblowers did not have protection against unfair dismissal. Employees who attempted to expose of illegal activity would face open discrimination by their bosses and fellow employees, they would also face disciplinary action and were often denied of career advancement. The Public Interest Disclosure Act 1998 came into force to protect workers and a worker in this context includes most workers in the public, private and voluntary sectors. The Act does not apply to self-employed workers other than those in the NHS, and voluntary workers such as charity trustees and charity volunteers...
Words: 3464 - Pages: 14
...A Timely Analysis of Legal Developments ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? By Jorge Lopez, Shin-I Lowe and Neil Grindstaff ® In This Issue: March 2010 The USCIS recently issued a guidance memo to its adjudication officers, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements.” The Memo clarifies what constitutes a valid employer-employee relationship, in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. Donald Neufeld, Associate Director or Service Center Operations for the United States Citizenship and Immigration Service (USCIS) recently issued a guidance memo to its adjudication officers, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements” (“Neufeld Memo” or “Memo”). The Memo clarifies what constitutes a valid employer-employee relationship, in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites.1 On February 18, the USCIS held a “Collaboration Session” in Washington, D.C., to address the growing concerns about the implications of the Neufeld Memo. Approximately 500 people (400 via teleconference) attended the two-hour session...
Words: 2919 - Pages: 12
...Glossary of HR terms For the benefit of human resources professionals, both new and seasoned, we present a Glossary of Terms. If, having read the Glossary, you feel that there are any omissions, then contact us . Absolute ratings A rating method where the rater assigns a specific value on a fixed scale to the behavior or performance of an individual instead of assigning ratings based on comparisons between other individuals. Affirmative action Also : Positive discrimination. Carried out on behalf of women and disadvantaged groups and members of such groups are placed in dominant positions. Appraisal See Performance planning. Attrition A term used to describe voluntary and involuntary terminations, deaths, and employee retirements that result in a reduction to the employer's physical workforce. Autocratic leadership Leader determines policy of the organization, instructs members what to do/make, subjective in approach, aloof and impersonal. Balanced Scorecard A popular strategic management concept developed in the early 1990's by Drs. Robert Kaplan and David Norton, the balanced scorecard is a management and measurement system which enables organizations to clarify their vision and strategy and translate them into action. The goal of the balanced scorecard is to tie business performance to organizational strategy by measuring results in four areas: financial performance, customer knowledge, internal business processes, and learning and growth. Behaviorally...
Words: 15364 - Pages: 62
...------------------------------------------------- AGREEMENT IN RESTRAINT OF TRADE CONTRACTS TABLE OF CONTENT * INTRODUCTION * TYPICAL RESTRICTIVE CLAUSE * KINDS OF RESTRAINT * RESTRAINT OF TRADE UNDER THE COMMON LAW * EMPLOYER MUST HAVE A VALID INTEREST * RESTRAINT MUST BE REASONABLE * EXCEPTION * CONTRACTS OF EXCLUSIVE DEALING * RESTRAINTS ON SONGWRITERS AND OTHER ENTERTAINERS * IS RESTRAINT GOOD OR BAD FOR HEALTHY BUSINESS? * CONCLUSION ABSTRACT Agreement in restraint of trade is defined as the one in which a party agrees with any other party to restrict his liberty in the present or the future to carry on a specified trade or profession with other persons not parties to the contract without the express permission of the latter party in such a manner as he chooses. In other words “one in which a party agrees with any other party to restrict his liberty in the future to carry on trade with other persons who are not parties to the contract in such a manner as he chooses”. INTRODUCTION This research work deals with an area of law which under classical contract theory brought two principles into direct conflict. On the one hand, classical theory endeavoured to promote ‘freedom of contract’ – it is the parties who determine their obligations, and the courts should only intervene in exceptional...
Words: 7193 - Pages: 29
