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Society is experiencing many conflicts between employers and their employees. Many issues arise due to blurred lines in employment contracts; if responsibilities and expectations are not clearly stated in the contract, the employer may face difficulties when or if an incident occurs (also known as implied terms). There is an imbalance of power between the employer and employee, however, the law does not intend to create a harmonious balance, instead to hopefully come to some sort of agreement to please both parties.
The law understands there is a hierarchal position to being an employer, yet it also respects the employee knowing that their power cannot be abused. There are three different types of employees that an employer can hire; full-time, part-time, and temporary. You may also have a contract of service which entails a person agreeing to be paid a regular wage, who will work regular hours. This is an employer-employee based relationship. Whereas, a contract for service is strictly business between an employer and a client.
The client does not work by the employers rules, they are not reporting to the employer, they are doing their Job within the employers request. Contracts both for and of services have different roles and responsibilities to live up to in order to be successful. The increase number of in cases in employment law is both positive and negative; positive in the sense that employees are standing up for themselves against their employers if they believe something unjust has happened. Negative in the sense that individuals believe that they were not treated fairly while working and the only way to solve their problems is to seek legal assistance.
When labor and employment law cases are brought to court, the first step in handling the case on the courts part, may be to use tests which help identify whether or not the individual is technically an employee, or if they are an independent contractor stationed at a workplace or something else. Each element of the various tests must be reviewed, with emphasis shifting depending on each separate case. According to Miscalled “The initial test used by the courts was the “control test”… Valuated the degree of control held over the ’employee’ by the employer; the greater he control, the more likely the courts would find an employer-employee relationship. Four aspects of control were considered: 1 . The employer’s power of selection of the employee; 2 Whether the employer paid wages; 3 The employer’s right to control method of doing the work; and 4. The employer’s right to suspend or dismiss the worker. ” (2013) Miscalled then continues “This test became inadequate when situations arose involving highly trained workers… T was clear that the employer did not control the professional or highly skilled worker in how they did the task. Thus a new test evolved, called the “entrepreneur test” or the “fourfold test”. Under this approach, the courts consider the question of “whose business is it” by examining the following factors: 1 . Control (as in the “control test”); 2. Ownership of tools; 3. Does the individual have a chance of profit; and 4. Who bears the risk of loss? ” (2013) Miscalled concludes with “A third test was developed in order to consider the broad range of potential employer-employee relationships: the “organization test”…
This test looks at the integration of the worker into the employer’s business and asks: “is that worker economically dependent on the company? Or “are the worker’s activities an essential component of the business? ” If the answer to either is “yes”, then the worker will likely be considered a ‘dependent contractor’ or an employee. ” (2013) Once a case has been examined by these tests, only then, can a court decide the ruling of whether or not an individual is an employee. Courts have to treat every case differently because there are exceptions to every situation that need to be examined.
Traditionally, the courts determined that an employment relationship is based on the following: the employee must perform the work that the employer hired them to do; he employer must pay the employee for the work that they perform and in so doing there is legal subordination between the employee and the employer. In Syndicate des Professors du Quebec v. Procurer general du Quebec as cited in the Supreme Court of Canada decision in Point-Claire (City of) v. Quebec (Labor Court) [1997] the judge referred to the definition of an employee as “a relationship of legal subordination.
This is the essential and specific element without which the other two would not be sufficient. The employer is identified by determining to whom the employees in question are subordinate. ” (p. 040) In other words, the one who has direction and control, is the employer. In the Supreme Court of Canada decision in Point-Claire (City of) v. Quebec (Labor Court) [1997] 1 S. C. R. 1015, the Supreme Court of Canada recognized a new type of employment relationship called the “tripartite relationship”. Employment in Canada has evolved and there are new types of employment and employers that did not previously exist.
The temporary help agency employees are the example that is reviewed by the court in the City of Point-Claire case. The temporary employee was hired by the temporary help agency but they worked exclusively for the City of Point-Claire and they were supervised and got their assignments from City staff. The temporary help agency merely found them and paid TTY determined hours to work, holidays, vacation, and it they and a concern with the employee they would tell the Agency to deal with the issue which could mean termination.
In these circumstances the court recognized that an employee could be an employee of the City and the Agency. In this way, the employee fell under the City’s collective agreement and was entitled to everything other City unionized employees received. The Agency was still also the employer for hiring and firing and paying the employee. The court said that in a tripartite employment relationship to determine who is the employer, the court must take a look at the entire relationship of the parties.
The who has control over the work and how it is done, are not the only factors. More important is how integrated into the employer’s operations. They said that it was important to consider a comprehensive approach that includes asking who does the selection of the employee, which party trains, disciplines, evaluates, supervises, assigns tasks, and pays the employee. One must also consider who the employee identifies with as their employer, their sense of belonging, rather then the usual legal subordination test.
The legal subordination factor which was a key test to determine whether someone is an employee in a bipartite employment situation, was not as significant. The roles of the parties was considered and in the end the court agreed that the City was in fact the employer for labor relations purposes and the temporary agency employee was in the bargaining unit. The temporary employee was more an employee of the City for all intense and purposes, than the Agency cause they were integrated into the City like all other employees.
There are two branches that are involved in common law; contract and tort. As Kathy J. Folksinger indicates, contract law “determines whether an employee- employer relationship exists” (p. 19, 2010) A contract is an agreement between two or more parties. In order to have a legally valid contract, you need a clear offer, clear acceptance of that offer by the employee, and you must show the employee had the opportunity to obtain independent legal advice prior to signing the employment contract.
Consideration is something that has monetary value for new employees the inconsideration is starting to work and getting paid for the work they do. For existing employees, the consideration must be something that they do not already have in terms of compensation such as signing bonus or salary increase, in order to make the contract legally valid. According to Kathy J. Folksinger “Under the common law, three things are necessary to create a contract: an offer, an acceptance and consideration…
Written or oral contracts are both binding. ” (p. 89, 2010) This outlines what a contract is and without parts of it, it is not considered to be a contract. There are sixteen contractual arms that Folksinger outlines in the text “Job description, remuneration, term, termination, probationary period, relocation, benefits, restrictive covenants, ownership of intellectual property, choice of law, corporate policies, entire agreement clause, inducement, independent legal advice, severalty clause and the golden parachute. (2010) Contracts many or all of those provisions, in addition to other provisions. Employment contracts need to be taken seriously in the process of creating what is expected of the employee and how the business will operate. Courts interpret entrants when there is a dispute as to what the employee is entitled to or what the employer is required to pay. For example, an employee might claim that they were entitled to termination notice, but they didn’t get it. They then might sue to have the courts decide what their entitlement is, under the contract.
In conclusion, over the years the courts have grappled with the notion of who is an employee and how do we determine whether there is an employment relationship. The courts have used multiple types of tests throughout the years, with new types of employees who are highly skilled and professional, employees who work from home, ND employees who work through new agencies, such as in the case of Point-Claire who used a help agency. At first, the element of control was key, in determining whether there was an employment relationship.
Later, the courts focused on ownership of equipment and who controlled the hours of work, still later, the courts focused on functional integration, meaning how functionally integrated into the business was this individual. In the supreme court of Canada decision in Point- Claire the court recognized a new employee-employer relationship “tripartite” which suggested that the employee could have two employers; one hired and paid employee, while the other directed and supervised the employee daily.
As a consequence of these relationships and ways of doing business, employment contracts have become more sophisticated and more employment relationships are governed by formal written contracts than ever before.