Reference no: EM133176946

Assignment - Questions

1. Explain the test for frustration of contract and provide some examples of how it might arise in the employment setting.

2. Barbara suffered a neck injury that medical evidence confirms will forever prevent her from performing her job as a shelf stocker. However, she could return to work as a cashier, provided she could sit on a chair while she works. The employer refuses to take her back as a cashier and instead informs her that her contract has been frustrated by her disability. Barbara is not a unionized employee. Do you think Barbara's contract has been frustrated under the Common Law?

3. In what circumstances can an employee's behaviour outside of the workplace and during non-working hours be grounds for summary dismissal?

4. Describe the two-step proportionality test developed by the Supreme Court of Canada in the case of McKinley v. BC Tel.

5. Zara was terminated for cause after she called in sick last Tuesday. She has been employed for five years. The employer pointed to the fact that Zara had been absent for 13 days in the past year for a variety of reasons. Zara had been given a written warning six months ago after her twelfth absence that if she missed another day of work without prior permission she would be terminated. Four months ago, after Zara missed a Friday before a long weekend, the employer decided to terminate her. However, because the employer was very busy, the termination never took place. With this last absence, the employer decided that Zara needed to go. Zara sued the employer for wrongful dismissal and argued that the employer did not have cause to terminate her without notice. She argued that the employer had condoned her absence when it took no action four months' earlier, and it could no longer rely on the earlier written warning. How do you think a court would respond to Zara's argument?

6. Explain the legal test the courts apply when considering whether an employee has terminated the employment contract.

7. Moishe had worked as a sales manager for Playtime Toys for 12 years. He's a good employee with no prior discipline. He has no written employment contract. Yesterday, the employer announced that it was moving to shift work because it wants to build up its Asian business. It needs salespeople to be available for phone calls and online inquiries 24 hours a day to align with different time zones. Moishe has always worked 9-5, and he is angry that he will be required to work evenings. He storms into his boss's office and yells, "I'm not working nights! Either leave me on full-time days or don't bother assigning me any more shifts." His boss responds that everyone will be working some evenings from now on, so Moishe will need to adapt or leave. Moishe yells, "I choose the latter," throws down his keys, and leaves.

Two days later, Moishe wakes up very upset. He loves his job, and the job market is tough right now. He calls his boss and tells him that he has reconsidered, and he will work the shift work. The boss tells Moishe that it is "too late" and she already accepted his resignation. If Moishe sues the employer for wrongful dismissal, do you think he would be successful? Discuss the arguments that Moishe and the employer might make.