Difference between contract law, tort law, and common law.

* Contract law refers to written agreements and oral promises * General principles of contract law determine whether an employer-employee relationship exists and what remedies apply to breach of the employment agreement. * A contract has three elements, offer, acceptance and consideration. * Tort law refers to any wrongdoing * A tort is a wrong for which there is legal remedy. * Tort law is a branch of civil law and covers wrong and damages that one person or company cause to another independent of any contractual relationship between them. * Tort can be deliberate or negligent. In order to establish negligent tort, the plaintiff must prove 1 that the defendant owed the plaintiff duty of care, 2 the duty of care was breached, and 3 the plaintiff suffered foreseeable damages as a result. * Common law is the legal system used predominantly in Canada – it derives from England * It is precedent-based law, where we follow past court decisions and existing laws (known as statutes) * Laws must be followed by all citizens, governments, and courts * Within each law is a REGULATION, which are enforcement tools of the law * E.g. Employment Standards Code is a law in AB, but its regulations actually enforce the law (carry it out) * For employment matters, contract law is important because there is an EMPLOYMENT CONTRACT between an employer and employee. * For employment matters, tort law is important because there are wrongdoings that may be committed independently of contract law * For employment matters, common law is applied where there is no statue covering a particular area or where a governing statue is silent on relevant point.

* A reasonably necessary qualification requirement imposed in a sincere belief that it is related to job performance. * Justifiably cause for discrimination . * This means that an employer may discriminate against certain applicants, but the job requirement must meet THREE things * The job requirement must:
(1) be adopted for a purpose rationally connected to the performance of a job
(2) be adopted to satisfy a business purpose
(3) be necessary to accomplish a purpose (employer must show it was impossible to accommodate applicant)

People are protected from discrimination based on their religion or faith. The Alberta Act and BC Code prohibit a person from forcing another person to accept or comply with a particular religion or faith. The legislation may require employer to take positive measure such as allowing breaks for prayer at certain times.

Under Alberta Act, people are protected from discrimination based on age. Anyone who is 18 can make a complaint based on age. A employer can’t refuse to hire someone who is 67 stating that they don’t fit the youthful image of the company. You can’t force someone to retire, as they is no set age for retirement, and it would be considered discrimination.
An employer is not allowed to discriminate on bases of gender. Gender extends to male, female, or transgendered individuals.it also protects woman who are pregnant. For instance you can’t refuse to hire someone simply because you believe woman is not fit for the job. Although you can discriminate on bases of BFOR as long as you can prove that gender is related it directly related to job performance.

* Negligent misrepresentation at common law occurs when the defendant carelessly makes a representation while having no reasonable basis to believe it to be true. * If the employer makes a misrepresentation that is relied on by prospective employee and that employee suffers damages because of it, the employer may have to compensate the employee. * An employer is also maybe legally liable for to inaccurate statements made during the hiring process * It is irrelevant whether the employer sincerely believes that the misleading or inaccurate statements were true.

* Is a tort * Employer Aggressively pursuing a job candidate * Job candidate is convinced to leave their current job in favour of the new employer * Promises are made for huge salaries, bonuses, long-term employment * If X leaves her job, works for a new business, and then is dismissed, X can sue for wrongful dismissal and claim damages for INDUCEMENT

* Independent contractor is self employed * Employee is part of the business……. If the company controls the person work, then the person is an employee…….if the person reports to the business, then the person is an employee……..(control test)

* If the person doesn’t bear risk of receiving payment for service perform, then the person is more likely to be considered an employee( risk test ) * If the service provided by the person are integral part of the organization, then person is an employee(organization test) * If the person provides its own tools, then the person is IC ( tool test) * Rule: the more autonomy to X, the more likely X will be an INDEPENDENT CONTRACTOR

* Independent contractors are not entitled to statuary benefits while employees are. * Independent contractors must arrange their own coverage such as health and safety insurance. * Employer do not have to pay for EI or CPP for independent contractors. * A contract may contain terms that no longer reflect the realities of the job * Obsolescence is when some terms of contract become "outdated”, and cannot be enforced * A contract may contain terms that no longer reflect the realities of the job * This means that if your employment contract has terms in it, and the conditions of an employee change, a court may not enforce that term.

Job Description * Must be clearly stated in the contract. * An employee has a right to refuse working on duties not specified in the contract.

Remuneration * The terms of an employment contract must at least match statutory minimum requirements.
Term
* An employment contract that covers a fixed period of time or a particular task must state the period of time or task. * Hiring for a fixed term or task eliminates the employer obligation to provide reasonable notice of termination because at the end of the term or task employment simply ends.

Termination * An employer must provide NOTICE to an employee when terminating their employment. * This is a major issue in employment contracts – the “notice period” * Why is notice important? * Because it gives a chance for the employee to find a new job, and the employer can replace the employee or not hire at all * An employment contract provides “termination notice” – if not, common law provides for “reasonable notice” * It is suggested that employers insert a clear termination notice clause in the employment contract.
Restrictive Covenants * A covenant is a promise * This clause means that an employee must not disclose confidential information about a business to its competitors, both during and after employment * Confidentiality is the main issue here * If we disclose everything about a company’s confidential information, we undermine the competitive advantage of a business.

* NON-DISCLOSURE….. Employee is not allowed to disclose confidential information. * NON-SOLICITATION…. Employee is not allowed to approach company customer * NON-COMPETITION ….where employee is now allowed to compete with original employer, this must be reasonable or the court may not enforce it.

Independent Legal Advice * This clause indicates that the employee has sought legal advice independent of the employer. * This means that an employee cannot challenge the contract for its legal meaning.

Probationary Period * This means that for a certain period of time employer may dismiss an employee without being obliged to provide reasonable notice under the common law.

Relocation
If transfer to another city or region is an issue, the parties should address the matter in the contract. Otherwise if the employer decide to transfer the employee, there could be a dispute as to whether relocation is an implied term of a contract.

Discrimination * intentional conduct * an intentional act of exclusion, for example * the behaviour was known as direct discrimination * unintentional and indirect behaviour * known as “constructive discrimination” * also known as “adverse impact discrimination” * It is the result of the rule that counts, not the intent * Where a rule or qualification has a negative impact on a protected group or individual, the employer must accommodate them up to the point of undue hardship

Accommodation
Making changes that allow a person or group protected by human rights legislation to participate in the workplace most often required with respect to disability, religious beliefs etc.

Undue hardship
A defense available to an employer if it can prove that fulfilling the duty to accommodate would impose an excessive burden based on a number of factors including financial cost, disruption to business and safety.

Inherent dignity and self-worth of an individuals

Hours of work and hours of rest

An employee can work maximum of 12 hours per day. An employee is entitled to 30 minutes of break if they have been working for five hours. An employee is entitled to one day of rest for one week. 2 days of consecutive rest for 14 days, and 3 days of rest for 21.
Overtime
An employee is entitled to overtime if they have work more than 8 hours per day or 44 hours per week. An employee is entitled to 1.5 times their regular pay for any overtime they have worked. Some supervisory or managerial role are not entitled to overtime, because they are paid on the bases of annul salary rather then hourly wage which is based on hours of work. Wages
A regular employee is entitled to minimum wage of 11.20. Anyone who serves liquor is entitled to minimum wage of 10.70. 446 weekly minimum for sales people. 2126 for domestic employees.
Vacation has two elements. One is vacation pay and other is vacation time. You are entitled to vacation pay and vacation time for two weeks when you have been working for 12 months. For vacation pay You are entitled to 4 percent of the earnings when you have worked one year, and 6 percent when you have worked for five years.

General Holidays (Statutory holiday)

An employee is entitled to 9 stat holidays. The nine are New Year, Good Friday, Thanksgiving, Canada day, Remembrance Day, Christmas Day, Labour Day, and Alberta family day. In order to be eligible for holiday, you must have worked thirty days prior to the holiday. If employee works on holiday, the employee must receive 1.5 times their regular wage and average pay day.

The Workers’ Compensation Act (WC Act)
Covers the compensation and rehabilitation of workers who are injured, or who contact a disease related to the workplace.

Eligibility
To be compensable the injury or disability must be from an “accident” that “arises out of and occurs in the course of employment”

* On the day of the injury, the employer must pay the employee’s full wages and benefits * Health care costs related to the injury are covered by WCB * Monetary benefits: WCB will compensate for loss of earnings from the first working day after the date of the injury, based on 90 percent of the employee’s pre-injury net earnings

The goal of worker compensation is to return a worker to the pre accident employer where possible as soon as it so safe to do so.