Davis worked for ABC Window Cleaners for 10 years. A couple of days ago he fell from a ladder.

Answer all five questions as fully as possible, drawing on the course materials. Refer to relevant case law, where appropriate, to support your answer. Assume that Ontario laws apply. Each question is worth 15 marks.

 

1. [15 marks] Davis worked for ABC Window Cleaners for 10 years. A couple of days ago he fell from a ladder. He did not hurt himself badly, but he was angry. When he got back to the office, he walked into his employer’s office and yelled that “he was getting too old for this crap” and that he was “quitting, effective immediately, before I kill myself.” Davis handed in his equipment and left. Davis never signed a written employment contract and he had never discussed with the employer whether notice of resignation was required.

 

Part One [5 marks]: Explain whether Davis has violated either his employment contract or the Ontario Employment Standards Actby quitting without providing the employer with any notice.

 

Part Two [10 marks]: When Davis gets home his wife tells him that she is pregnant. Davis now realizes how stupid he was to quit a job right now when there is such high unemployment and he now has a new baby on the way. The next day, he calls back his boss at ABC Window Cleaners and says he made a mistake and he didn’t mean to quit. The boss tells Davis that “a quit is a quit” and that Davis won’t be hired back. Davis asks you whether the employer is correct and if there is any legal argument(s) he could make in a court in response to the employer’s position. Provide Davis with an answer, including any possible remedy that Davis could obtain if he were to win a lawsuit.

 

2. [15 marks] Alison has worked as a cashier for Staples Office Supplies in Toronto for 6 years. Last week her employment was terminated “for cause” without any notice. The employer told her that her performance over the past year had been poor and that despite two warnings to work faster, Alison’s performance had not improved. Alison explained that she was working as fast as she could, but the employer said that was not good enough. Alison looks at the employment contract she signed when she was hired, but it doesn’t include anything about whether the employer can terminate her employment for cause and without notice.

 

Part One [10 marks] Alison comes to you for advice. Fully explain whether Alison is entitled to anything from the employer under the Employment Standards Act. If you think more information is required to answer, explain what information you would want to know.

 

Part Two [5 marks]: When we considered the Common Law Regime, we learned that a judge could decide that an employee in Alison’s situation could be entitled to “reasonable notice” of 6 months or more. Why might an employee nevertheless decide not to pursue “reasonable notice” damages against their employer and “settle” for whatever might be available under Employment Standards legislation?

 

3. [15 Marks] Applying the two-step human rights model, examine each of the following 3 scenarios. Assess whether the worker would have a strong human rights complaint and why (or why not) and what if any defense the employer could argue, referring to any relevant case law.

 

A. Alicia applied for a job as a janitor/cleaner at a private Catholic college but was denied the job when the employer learned that she was Jewish. The college told her it has a policy of only hiring Catholics.

 

B. Bill applied for a job as a food server at a fancy restaurant. He was denied the job because the employer did not like his tattoos and dyed purple hair.

 

C. Carys was terminated from her employment as a forklift driver in a factory after the employer learned she has epilepsy that could cause her to have a seizure. She had been employed for 2 years without any incidents, but the employer told Carys that it was too unsafe for her to work in a factory setting due to the risk of a seizure. Carys offered to let the employer speak with her doctor, but the employer said that was not necessary.

 

4. [15 marks] Answer both of the following Parts as fully as possible drawing on course materials.

 

Part A (5 marks): Omar has the title of “Manager, Paint Department” at a Canadian Tire store in Toronto. In addition to scheduling the shifts of Department employees, hiring new employees for the Department, and ordering products, Omar’s typical workday includes cashing out customers at the cash register, assisting customers, and stocking shelves. The employer tells him that he is not entitled to overtime pay because he is a “manager”. Discuss whether the employer is correct?

 

Part B (10 marks): Joanne also works at the same Canadian Tire. Two weeks ago, she worked 30 hours and last week she worked 48 hours. Joanne and the employer signed an “averaging agreement” that covers those two weeks. How much overtime pay is Joanne entitled to receive for hours worked over those two weeks? Identify one argument in favour of and one argument against the use of averaging agreements as a method for deciding if employees are entitled to overtime pay.

 

5. [15 marks] In a short essay format (not point form), provide a well-written, concise, and thoughtful response to the following question. Your response should draw on relevant course materials, including course readings and class discussion. There is no “right” answer. You are to take a position and back it up by referencing materials from the course.

 

Select either the Human Rights or the Employment Standards models that we learned about in this course, and explain how that model attempts to balance the competing interests of employers and employees. Be sure to identify what you think those interests are and use examples from the course to support your argument.

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