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McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
d. In the case of summary dismissal, the employee is not actually fired.
e. In the case of summary dismissal, a unilateral decision to alter an employee's status is
said to amount to dismissal.
28) Suess was a model employee and future superstar in the corporation. Thinking that he
was about to be offered a promotion, Suess was called into his manager's office where he
was told that he was about to become the next victim of a projected economic downturn. To
keep his job, Suess was told that he would have to take a 50 percent pay cut and move from
Vancouver to Winnipeg. Which of the following is true?
a. Suess has been wrongfully dismissed.
b. The projected future economic downturn was just cause for dismissal.
c. Suess was entitled to a remedy for summary dismissal.
d. Suess was constructively dismissed.
e. Suess is obliged to move to Winnipeg or resign.
29) Severance packages are distinguishable from settlement packages
a. in that severance packages are a lump sum payment offered to bring an employment
dispute to an end.
b. in that settlement packages are a lump sum payment offered to bring an employment
dispute to an end.
c. in that settlement packages contain only that which is owed to the employee under
statute.
d. in that severance packages are offered in exchange for a release.
e. settlement packages are always more generous to the employee than severance packages.
30) A written release
a. is part of a severance package.
b. is the employer's written promise to bring an end to the employment dispute.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
c. is a provision in the employment contract that allows an employer to dismiss an
employee without notice.
d. is a provision in the employment contract that allows the employee to work for someone
else without notice.
e. is a prudent document to obtain from an employee who has threatened litigation or with
whom a settlement has been made for the employee’s dismissal by way of settlement
package or severance pay.
31) In deciding whether a worker is an employee or an independent contractor, a judge will
a. always give effect to the literal terms of the parties' contract.
b. usually resolve the issue on the basis of presumptions.
c. be most influenced by the fairness of imposing vicarious liability as a result of the
worker's tortious conduct.
d. be substantially influenced by the fact that independent contractors almost always earn
more than employees for doing the same work.
e. apply the control or organization test and will look to the substance not the form of the
relationship.
32) In deciding whether or not a non-competition clause is enforceable, a court will
a. examine only the terms of the parties' agreement and not the likely effect of that
agreement.
b. enforce the clause only if the former employee received independent legal advice before
signing the agreement.
c. be influenced by the employer's personal interests but not by its proprietary interests.
d. be less likely to enforce the clause if the employer could have been sufficiently protected
by a non-solicitation clause.
e. not be influenced by the fact that the employer wrongfully terminated the employee's
contract of employment.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
33) Assuming that the general rules apply, an employee may be summarily dismissed
a. after a single episode of employee theft.
b. if his or her breath smelled of alcohol and if that fact violated company policy.
c. for any criminal behaviour, even if that behaviour occurred before the term of
employment began.
d. for missing a day of work without either permission in advance or condonation after the
fact.
e. upon receipt of an unfavourable work performance report.
34) Which of the following criteria will NOT be considered by the court when deciding
whether to award damages for wrongful dismissal?
a. whether the employer acted in bad faith during the dismissal process
b. whether the employee suffered actual psychological damage
c. whether the way in which the employee was dismissed caused foreseeable mental
distress
d. whether the notice period can be appropriately lengthened in order to compensate the
employee for mental distress
e. the nationality of the employee
35) Luminara has been given two weeks' notice by Knight Services Inc, her employer.
While she is upset and hurt, she also wants to make sure that she lands on her feet and that
she will not be without an income for long, if at all. She therefore has asked you to
comment on several potential outcomes that she has predicted. Which of the following
statements is TRUE?
a. Unless she signed an agreement to the contrary, Luminara will not owe any obligations
to Knight Services once she leaves the company.
b. Luminara will be entitled to a settlement package.
c. Luminara cannot take customer lists belonging to Knight Services.
d. As an employee, Luminara is subject to fiduciary obligations that will survive her
departure from the company.
e. Luminara may take the customer lists of her employer if she did not sign a non-
solicitation agreement in writing.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
36) Garth was accused by his employer, Redav Inc, of acting in conflict of interest. Garth
denies the allegation. Both parties realize, however, that if they take the issue to court, they
will lose precious time and money. The parties have therefore entered into an agreement
regarding Garth's departure from the company. Which of the following statements is
TRUE?
a. If Redav Inc agrees to provide severance pay, Garth will receive payment in lieu of
notice, as well as several other payments, including his past contributions to the Canada
Pension Plan, vacation and sick pay, and an amount equal in value to the bonus payments
that other employees in his position have received in the past fiscal year.
b. By merely persuading Garth to sign a release, Redav Inc will eliminate the risk of later
being sued by him.
c. The phrases "severance pay," "severance package," and "settlement package" mean the
same thing.
d. Redav Inc is not obligated to provide Garth with a settlement package unless the parties
agree otherwise.
e. By accepting a severance package, Garth gives up the right to sue the company for
wrongful dismissal.
37) Obie has worked for Force Security Systems for ten years. Although the relationship
was happy and mutually advantageous for the first eight years, the situation has been
terrible for the past two years. Obie feels neglected and unappreciated, and the company
questions his loyalty. As a result, each party is secretly looking for a way to end the
relationship in the best way possible. Which of the following statements is TRUE?
a. While Force Security is required to provide Obie with either notice of termination or
payment in lieu of notice, Obie is entitled to leave the company at any time without
incurring any obligations or liabilities.
b. If Force Security acts in bad faith when it fires Obie, a court may award damages for bad
faith dismissal, in addition to any other remedies Obie might have if that bad faith caused
foreseeable mental distress and Obie suffered actual psychological damages.
c. Each party must provide notice (or payment in lieu of notice) if it intends to terminate the
employment relationship, and that notice period will be the same whether it applies to Obie
or to Force Security.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
d. If Force Security terminates Obie's employment, the duty to mitigate will require the
company to ease Obie's return to the work force by doing things like writing reference
letters.
e. Depending upon the circumstances, if Obie is summarily dismissed from his position as a
senior executive with Force Security, he can expect to receive between 24 and 36 months
worth of payment in lieu of notice.
38) Cece suffers from a disability. She developed that condition while working for
Blackheart Inc. The duty to accommodate
a. is irrelevant to this case unless the employment contract requires Blackheart to provide
Cece with housing.
b. requires Blackheart to modify the workplace, as long as the cost of those modifications
does not exceed a statutorily imposed financial limit.
c. does not apply because Blackheart is responsible only for those conditions that existed
when the employment contract was created.
d. may impose an obligation on Blackheart, but that duty is limited by proof that the
accomodation would cause undue hardship on the employer.
e. arises only if Cece can prove that she would not necessarily face the same problems with
a different employer.
39) Graham has worked for a department of the federal government for seven years. For the
past six months, he has repeatedly complained to his supervisor, Cheryl, about sexual
harassment in the workplace. He claims that several of his colleagues, both female and
male, have persistently commented on his physical appearance, asked him for dates even
after he rejected their offers, and allowed sexually explicit materials to be seen on work
station computers. Cheryl initially responded to Graham's complaints in good nature by
telling him to "loosen up," "take a joke," and "be a man, for goodness sake." More recently,
however, she has grown impatient, and has simply told him to "get back to work." Which
of the following statements is TRUE?
a. Graham's claims of harassment will be successful only if he proves that the accused
individuals intended to cause him grief.
b. Graham's employer may be held vicariously liable for failing to actively prevent or
inhibit sexual harassment.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
c. While changes have been proposed, it currently is impossible for a man to succeed in an
action for sexual harassment.
d. Sexual harassment requires proof of at least one incident in which the victim was
touched in an offensive manner.
e. This is not sexual harassment but just joking around in the workplace, which is not
against the law.
40) Jason is a notoriously lazy individual. Consequently, while he recently returned to the
workforce after exhausting his eligibility for employment insurance benefits, he is anxious
to earn as much as possible while doing no more than is necessary for his new employer,
Big Boy Pants and Shoes (BBPS). Which of the following statements is TRUE?
a. Employment standards legislation prohibits BBPS from asking Jason to work on a
statutory holiday, and must instead ask its employees for volunteers.
b. Minimum wage rules apply only if Jason is paid on an hourly basis.
c. Jason is entitled to a 15 minute rest period every 2 hours.
d. Employment standards legislation states that Jason is entitled to an annual vacation, and
that he is entitled to take his vacation whenever he wants to do so.
e. Jason is entitled to take a statutorily defined time off work to vote on election days.
Essay Questions
1) Explain the concept of a "job description." In which phase of the employment
relationship is it created? What are the advantages of having a well-drafted job description
for an employer?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
2) Dr. Greenwald, a well-known plastic surgeon, rents a substantial portion of office space
in the Americas University Hospital, a for-profit organization. Greenwald generates his
own income, which is billed by the hospital after which a percentage is remitted to him on a
bi-monthly basis. The amount of revenue generated by Greenwald equals 40 percent of the
hospital's total revenue. In addition to his very successful practice, he serves on the
hospital's ethics committee and is one of its key fundraisers. Would the doctor be
considered an employee or an independent contractor? Apply the organization test.
3) Describe some outcomes that you might expect to emerge from the court's decision on
bad faith dismissal in Honda Canada. Why do you expect these outcomes to arise?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
4) Professor Paine's performance reviews by the faculty in which he works always end on a
positive note despite the fact that his work has been subject to serious criticism by both
students and faculty alike. Most likely, this is due to the fact that the professor is
emotionally fragile and has previously been traumatized by receiving a negative review. Is
it bad practice for the dean of the faculty to avoid an honest appraisal in order to save
Professor Paine from having hurt feelings? Explain why.
5) Suggest several means by which a manager can minimize the risk of vicarious liability
for the actions of workers?
Answer:
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
6) Indira works full-time as a marketing assistant in a large corporation. She is thinking
about having a baby. She wonders: Will she lose her job? If not, will she get paid while on
leave? What happens if her colleague Diana is given her position and wants to keep it after
she comes back? Provide answers to Indira's questions and name the governing legislation
that provides the authority for your responses.
7) Tawney had been working as a forest firefighter for two years. Tawney was one of the
only women in her unit, but that did not stop her from winning the Firefighter of the Year
badge for her region. Two weeks later, Tawney was notified that she had not passed one of
the modules on a newly imposed province-wide fitness test and that, as a result, she would
be dismissed. This module of the test required firefighters to run a 2.5 km course of uphill
terrain in 11 minutes or under. Tawney had taken 11 minutes and 49 seconds. Because of
her excellent record of service, she was given a severance package in excess of what was
owed to her by law. Does Tawney have grounds for a complaint? Briefly describe the
relevant considerations.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
8) Luke owns a lifeguard consulting company, supplying lifeguarding services to public
and private schools in Kelowna. Luke has been charged with sexual harassment by one of
his employees. The employee alleges that she and the other women lifeguards were forced
to wear company bikinis while performing their lifeguarding duties. Those who refused
would be given last choice on shifts (which, practically speaking, meant that they would be
getting no shifts). The complainant protested to Luke but eventually gave in since it was too
late in the summer to find another job. Additionally, the employee claims that, ever since
the female staff was forced to wear the bikinis, Luke drops in constantly for site visits. His
visits with females are more frequent and longer lasting. In fact, it is alleged that these
visits have earned him the nickname of Lurking Luke. Several female employees have
expressed that they find his behaviour unwelcome. Luke knows about his nickname but
stands behind his policy. According to Luke business has increased and, as a result, there
has been more to “supervise” at each visit. Explain the concept of sexual harassment and
apply it to the situation at hand.
9) Mme Renaud, a university librarian, became concerned about her safety ever since she
has heard that many other universities recently instituted asbestos removal projects. Until
recently, many of her co-workers regarded her concern as mere paranoia. Yesterday, Mme
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
Renaud substantiated her fear when a piece of ceiling tile labelled "Danger—Contains
Asbestos" fell on her head while she was checking out some books to a student. Briefly
outline the steps that are available to her to ensure her safety and the safety of others
working in and using the library facilities.
10) Sandy has repeatedly come into work under the influence of drugs and, on several
occasions, has been warned that this behaviour cannot continue. List all of the relevant
factors that a prudent risk manager will take into account in deciding whether to suspend or
dismiss him.
11) Legislation and common law precedents suggest that a prudent business manager
should provide employers with a reasonable period of notice prior to dismissal. List four or
five factors that the manager should consider when deciding on the reasonableness of the
notice period to be provided.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
12) Can an employee claim to have been dismissed even if they were not fired? Are there
any remedies available in such circumstances?
13) List several items that may be included in an employee's severance package.
14) Stanislov is terminated as a result of an economic downturn. He is given a severance
package that includes monies owing for all statutory obligations. He is told that by cashing
the cheque, he waives any and all right to sue his employer for further sums. Is this correct?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 26: Individual Employment
15) What is a release? Who signs it? The employer or the employee? Why?
