5 pages/≈1375 words
Employment Law (Essay Sample)
The Assignment At a typical large family gathering, one of your uncles, as usual, gets into an argument with your cousin, you know the one. She thinks she knows everything. So irritating. UNCLE: Legislation like the Employment Standards Act, the Pay Equity Act and the Human Rights Code were supposed to help disadvantaged workers - instead all they do is protect bad and lazy workers who hide behind the legislation to avoid hard work and discipline. Like all you young punks today. Pass the chicken, please. COUSIN: You're old and therefore I disregard everything you say. In addition, these statutes help protect both workers and employers from the mess that is the Common Law created by old geezers like you. Dark or white meat? UNCLE: Insufferable pup! The Acts you love are incoherent, toothless and ineffective in achieving their ends and often pursue other policy goals that have nothing to do with employment. They just create a headache for employers and unfairly burden them with bureaucracy. In some cases, the legislation has even eroded important Common Law rights of employees. We need to scrap them and come up with another model. A little more dark meat, please. COUSIN: What? Like the U.S. model? Please. We seriously need to scrap you and come up with something better. Gravy? At this point, you are asked to pass the vegetables and so don't get a chance to jump in and with your valuable insight. When you turn back they have moved onto immigration. You can't sleep until you make your point. You desperately wish someone cared to hear your argument. Luckily, you have me. Your assignment is to write a short, but well-structured and well-written essay that analyzes the above argument. Note that there is no “right” answer. Your job is to express an opinion and to then back it up with research from the cases and materials we have considered in class, plus any other additional research you believe is useful. Do you agree with your Uncle, your Cousin, neither or a bit of both? Your essay is not to exceed 5 double-spaced pages (Times New Roman font, 12 pin), including footnotes or endnotes. Papers going over that length will be deducted marks. There is a useful skill in making succinct arguments, and that is part of this assignment. Grading The essays will be assigned a letter grade (i.e. A, B, C, etc), which will then be transferred to a mark out of 15. Grading will be based on: (1) the substance of the argument made; (2) the research used to support it; and (3) writing and grammar quality. Please consider taking advantage of the services York offers students writing papers o rat least have a person you know and trust with excellent English skills read over the paper before you submit it. The best papers will clearly take a position, and back it up with a solid argument drawing on appropriate materials, and will be well-written. While there is sufficient information in the class materials to complete the assignment, the best papers will probably also demonstrate that the student did additional independent research. The Scott and Osgoode Hall Law School library, or any other law library, will include books on Employment Law that may be of use. Those of you who can get to downtown Toronto may want to spend some time at the Centre for Industrial Relations and Human Resource Management at 123 St. George Street (Bloor and St. George. You can also search York's e-resources on-line, by searching under the subject of LAW. A good database is Legaltrac. In that database, try searching for terms that relate to your argument (for example, “common law” and “employment” and “Canada”, might get you some useful hits. But you will have to play around with searches to find useful material.) Style and Sourcing You can use any of the essay and citation styles described on York's Style Guide page: (http://www(dot)library(dot)yorku(dot)ca/ccm/Home/ResearchAndInstruction/citationmgmt/). When you cite a source, you must ensure that the reader could find the source and go directly to the page you are referring to. Do not cut and paste quotes from the internet, unless you fully source it, including the website where you found the material. Many students have been found to have plagiarized for lifting internet material. Academic Integrity These papers may be submitted to Turnitin, which checks for plagiarism. If you have concerns about how to properly source material, review York's Integrity website: http://www(dot)library(dot)yorku(dot)ca/ccm/Home/ResearchAndInstruction/academicintegrityinfo LINKS FOR SOME CASES TO USE Di Tomaso link (CLRN) http://www(dot)canlii(dot)org/en/on/onca/doc/2011/2011onca469/2011onca469.html Minott link (CLRN) http://www(dot)canlii(dot)org/en/on/onca/doc/1999/1999canlii3686/1999canlii3686.html Carscallen link (Test for Implied Terms) http://www(dot)canlii(dot)org/en/on/onsc/doc/2005/2005canlii20815/2005canlii20815.html Stowar link (Overgenerous Termination Notice) http://www(dot)canlii(dot)org/en/on/onsc/doc/2009/2009canlii32253/2009canlii32253.html Davies link ( Common Law right to Layoff?) http://www(dot)canlii(dot)org/en/on/onsc/doc/2009/2009canlii32253/2009canlii32253.html Mason link (Enoforceability of Restrictive Covenant) http://www(dot)canlii(dot)org/en/on/onca/doc/2011/2011onca344/2011onca344.html Cronk link (Common Law Reasonable notice) http://www(dot)canlii(dot)org/en/on/onca/doc/1995/1995canlii814/1995canlii814.html Wronko link (Changing terms of Contract) http://www(dot)canlii(dot)org/en/on/onca/doc/2008/2008onca479/2008onca479.html CITATION: Serbanescu v. Span Manufacturing Ltd., 2010 ONSC 6087 COURT FILE NO.: CV-09-381692, DATE: 20101103 RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2008 SCC 54,  3 S.C.R. 79 CITATION: Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 DATE: 20111223, DOCKET: C53625 Stephenson v Stephenson v. Hilti (Canada) Ltd. (1989) 63 D.L.R. (4th) 573, nova Scotia Supreme Court - Trial Division, Halifax, Nova Scotia Wood v. Enbridge Gas Distribution Inc., et al, 2011 ONSC 5494 (CanLII) Ellison v. Burnaby Hospital Society Seneca College of Applied Arts and Technology v. Bhadauria,  2 S.C.R. 181 Supreme Court of Canada source..
The law surrounding the whole employment process is of great importance not only to employees but to employers equally. As an employee, one needs to understand what is required of then and as an employer too. Some of the decisions that an employee or employer makes that affect another person attract legal scrutiny so as to safeguard the interests of the parties to the contract.
It is true that some Acts such as Employment Standards Act, Pay Equity Act and Human Rights Code were introduced to safe guard employees, however that there are people out there who hide under these legislations and that is why it is very essential to understand them well to begin with (Mane, 2002). Nevertheless, it is also true that these Acts mentioned, were created to correct a problem created by common law.
Employment law in the US was traditionally governed by the common law rule of at will employment, meaning that an employment relationship could be terminated by either party at any time without a reason (Mane, 2002). However, this has since 1941 changed with more and more legislations coming in to place. The doctrine of mutuality of obligations has already been repudiated; in modern contract law allows any promise that is supported by consideration from both parties therefore if one party is not happy about the other in relating to work, they can walk out (Muhl, 2001). It may not be true to say that the Acts are there to protect workers, because we know for example there are many issues that are dealt with by employment Act for example; discrimination claims, service employment and reemployment Act, workplace violation issues and so on. There are times that employers may be held liable for conducts of their employees, at this time employee will be safeguarded by the Act (Michael, 2000). However, there are other cases where the truth will have to be dug to establish the person who committed the offence and be held accountable as an individual where this will now be in favor of the employer, therefore ruling out the notion that the acts protects employees only. To avoid a situation where employers change their terms of employment to employees anyhow, a contract of service and terms are clearly stated (Mane, 2002). The same contract will also outline what will be expected of an employee to avoid a breach from his part, and by so doing both parties will be satisfied. The contract will also address -at will employment problem- like the one addressed in the case Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII) where employer kept on changing terms of employment without mutual consent. Whenever there is a contract of service, its not up to the employer to order around the employee so long as they do the work and at the required time, laziness with be the last thing employers will worry about thanks to employment Act and law of contract in general (Mane, 2002)....
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