As per labour relations legislation, some employees are excluded from collective bargaining. In the past this exclusion has survived Charter scrutiny as it has been held that the freedom of association and freedom of speech do not guarantee a right to collectively bargain. However, newer case law seems to suggest that there is a Charter protected right to collectively bargain. In Health Services, it was held that the Charter includes a procedural right to collectively bargain, but does not guarantee particular objectives. Further, the Charter does not protect all aspects of associational activity, only those which constitute a substantial interference with associational activity. Notably, Bill 5 in SK designates certain employees as “essential services”, and restricts their rights to collectively bargain.
Generally, independent contractors are excluded from collective bargaining. It is believed that they are financially independent enough such that they do not require the protection of collective bargaining. Either of the tests above can be applied to determine if an individual is a contractor or an employee.
Introduction (In a Canadian Context)
Collective bargaining legislation determines who is entitled to bargain collectively and who is excluded. Notably, managers, independent contractors, public workers, privileged employees, confidential employees, and whomever else the statute says so may be excluded. This gives rise to the threshold question of “who is an employee”? The two most commonly cited tests are the Montreal Locomotive Test and the “purposive” aka Hearst test.
Generally, reinstatement is not a remedy available at common law. However, this remedy may be available as per statute or collective bargaining agreement. For obvious reasons, reinstatement is not a popular remedy: it would create tension and awkwardness in the workplace.
The measure of damages for wrongful dismissal is governed by the length of the notice period in the contract of employment, because what makes the dismissal unlawful at common law is the employer’s failure to give due notice or wages in lieu of. Therefore, the employer can recover only for wages and benefits that he or she would have been legally entitled to during the contractual notice period.
If the employer acted in a particularly repulsive way in the manner of dismissal, there is no additional recourse for the employee unless the employee can show that the employer’s conduct constituted an independently actionable tort such as mental distress (Honda v. Keays).
An employer can dismiss an employee if there is a valid cause. The test for valid cause is if the employee dishonestly violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer (McKinley).
Constructive dismissal is a doctrine that states when an employer unilaterally and drastically alters the terms of an employee’s employment, the employee is entitled to quit their job and sue the employer from wrongful dismissal. In other words, an employer is not allowed to unilaterally change an employment contract, unless the employee explicitly accepts. If an employer continues to work even after the drastic change, this does not necessarily constitute acceptance. Bad faith is not a requirement for an employer to commit a repudiatory breach (Farber v. Royal Trust).
Even if an employment contract is in writing, sometimes the court will ignore certain terms of the contract. The court is cognizant of the inherent inequality in bargaining power between an employer and an employee (Nardocchio v. CIBC). This Is particularly true if the contract contains terms that are unfair or provide grossly inadequate consideration.
If there is ambiguity in an employment contract regarding reasonable notice, the fairer interpretation will be preferred, and if an indefinite term contract exists there must be reasonable notice according to the common law definition unless the contract meaningfully says otherwise (Ceccol).
When it comes to wrongful dismissal, the main job of the court is to determine what is reasonable notice (i.e. you get paid money to compensate you). This is an implied term of the employment contract as per common law. There are two main approaches to determine reasonable notice. The oft-cited Bardal approach where the court considers such factors as the character of employment, length of service of the servant, age of the servant and availability of similar employment (most important) having regard to the experience, training, and qualifications of the servant. The Bardal approach is augmented with by the Lazarowicz approach, approved by the SK QB in Bartlam. Here, the court imagines that the employer and the employee had sat down at had a chat at the time the employee was hired. How much of a notice period would they have agreed upon? This approach is useful because it takes it flexibly takes into account factors such as the economic situation, norms of the industry and so on.
As per common law, there are certain terms that are implied to be in all employment contracts. Most notably, reasonable notice for wrongful dismissal. There is a rebuttal presumption that such a right exists, unless the employer can show evidence that the parties agreed otherwise. Based on the inherent power imbalance between employers and employees, ambiguous terms of employment contracts will be interpreted in a way that is favourable to the employee (Ceccol). An implied term is something that the employer and employee would have agreed to if they had sat down and had a chat at the beginning of the employment relationship (McNamara).