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HRM3420W F 2021 EMPLOYMENT LAW C. SWEENEY

MIDTERM

HRM3420W

Employment Law (ONLINE)

Christopher Sweeney

Mid-term Test Fall (F) 2021

WEDNESDAY OCTOBER 27, 2021 7:00 – 10:00 pm EST

Academic Honesty:  You must do this exam on your own, without the assistance of others.  By submitting an exam, you are claiming that you wrote the exam without assistance from another person and that you understand that failing to work alone constitutes a serious academic offence.  You cannot simply cut and paste other people's writing as your answers (this includes material provided by the text, your professor or in slides).  If you cite any authority, you must source that citation by clearly indicating the author and source. If you use another’s words, they need to be in quotations and properly accredited. Students not abiding by York’s Academic Honesty policies will be dealt with under said policies.

This exam is worth 20% of the final grade

This exam has 4 Questions worth 60 marks in total.

This online exam is available for three hours, from 7:00 pm – 10:00 pm EST. It must be uploaded to the e-class site by 10:00 pm EST. If you have an accommodation, you start at the same time as everyone else, but are granted extra time in accordance with your accommodation to upload it. In such circumstances, do not worry if it is marked as ‘late’ - as long as you are within your allotted time.

Name your document using your last name and Exam (i.e.  LastnameMidtermExam)

You are to upload your exam in Word or PDF format only. If you use another format, I may not be able to open the document and you get zero. Type your name and student number at the top of the document – that will be your exam document.

Before the end of the time allowed (i.e. before 10:00 p.m. EST), save and upload your exam on the Moodle website the same way you have uploaded the Assignments. Make sure you properly submit the correct version of your exam and follow all prompts. Correct submissions should receive email confirmation.

Exams not submitted by 10:00 p.m. EST will not be graded (unless you have an extension due to accommodation) and will be awarded a zero grade. Make sure you do not upload a new version after the deadline, or it will simply appear as late-filed or possibly not accepted. Reasonable and justifiably slightly late due to uploading delays etc. will be treated flexibly in the discretion of the professor (i.e. me) and not subject to review.

If you have a technical issue email me immediately at csweeney@yorku.ca with the issue and we will go from there. In worst case scenario, you can email me your exam at the above address before the deadline and I will exercise my discretion on how to handle it. My decision will not be subject to review or appeal.

ENSURE YOU ARE SUBMITTING THE CORRECT EXAM AND ARE FOLLOWING THE SUBMISSION PROCESS. Properly submitted exams should result in the student receiving a confirmation. Don’t just drop the mike and walk away when you think you’re done – ensure you receive the confirmation. If you email me hours (or in some past cases days) later claiming you made a mistake, you can expect me to be unsympathetic.

Clearly indicate which question you are answering. Your answers are to appear in numerical order .

You must answer the questions in proper written English, using correct grammar, spelling and syntax. Point form answers will not receive full marks. Given the format, specific case names and other source citations are expected.

When citing a legal case in support of an answer the main names in the style of cause are sufficient e.g. Smith v Chan. In cases where the jurisdiction or level of the court or how recent it is are relevant, you’d be best to indicate that e.g. a SCC case from this year is a strong citation, a 1854 case from England, likely not so much. You can refer to a case in more than one question BUT you must describe the case and how it applies to each question each time you use it. Comments such as ‘See Other Question’ will NOT be satisfactory, and I won’t do it.

Ontario law applies in every question. Assume all workers are NOT unionized. Even if not specified in the question itself, the best answers will always refer to case law, if any, in support.

SHORT ANSWER QUESTIONS (60 Marks)

(15 MARKS)

(A) Where there is no legal express termination notice in an indefinite employment contract, courts imply that the employee is entitled to Common Law Reasonable Notice (if there is no just cause for dismissal). What are the main factors Common Law courts consider in every case when assessing how much CLRN is ‘reasonable’? Explain what they are and why each is a factor. What is the leading Canadian case that sets out these factors? (8 marks)

(B) Can any other factors increase or decrease how much reasonable notice an employee will receive? If so, specify what they are, what those factors do and cite a case to support your answer. (4 marks)

(C) Are there legal ways an employer may limit how much notice an employee would be entitled to when wanting to terminate the employee without cause? (3 marks)

(15 Marks Total)

Explain what an “employee” is under Common Law. How do the courts determine whether a worker is an employee or not? What are 2 legal consequences of a worker being found to be an employee instead of an independent contractor under Common Law? (6 marks)

What is the difference between a fixed-term and indefinite term employee? What are the Common Law consequences of being found to be a fixed-term employee instead of an indefinite term employee? (4 marks)

What is the difference between an independent contractor and a dependent contractor? How might this distinction affect their employer under Common Law? (3 marks)

Under the Common Law, is an intern an employee? Why or why not? (2 marks)

(10 marks)

Employment Law is primarily a contractual relationship and so contractual concepts have been imported into interpreting the employment relationship. As a contract represents the voluntary desires of two parties who have the capacity and intention to engage in a relationship, judges generally defer to those wishes, even when it is a ‘bad’ deal for one of them.

Judges also, however, recognize that the employment law relationship is not completely analogous to a commercial relationship between two parties of roughly equal power and sophistication. For this reason, among others, judges sometimes do not enforce the clearly stated express terms in an employment contract (or at least as one of the parties understands them).

Identify and explain 4 different situations when a court may not enforce the express terms of an employment contract and provide a legally decided case to explain how each example was applied. For the purposes of this question DO NOT discuss the concepts of Capacity or Intention.

(20 Marks Total)

Explain what an Implied Term is. How does one determine if a particular implied term exists? Describe Implied Terms’ relationship with Express Terms (6 marks)

If the Implied Term of the Employee’s Duty to not be absent from work is breached (i.e., if the employee is absent from work without permission), can the employee always be dismissed for cause? Is there a test to determine when dismissal for cause is justified? (6 marks)

What is Frustration of contract? What is the consequence of Frustration being found to exist by a court? How is a Frustration argument affected by the employee’s absence from work being due to illness or disability under the Common Law? (5 marks)

How does Common Law Frustration intersect with the Human Rights Code concept of ‘Duty to Accommodate’? (3 marks)

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