Reference no: EM133527399

Assignment

Assume all fact situations take place in Ontario. The answers to some of these questions may need to be found in the relevant Ontario legislation, not the text. It is important to actually go to the legislation because that is the source of the law and as well, the law is different from province to province, although there are commonalities and similarities.

I. What is the difference between termination pay and severance pay? Does every jurisdiction in Canada require that employers provide both?

II. Is it possible that an action by the EMPLOYEE would justify dismissal (i.e. for cause) under the Common Law but not be justified under the ESA?

III. Rasmus worked for Ford Motor Co. Of Canada for 12 years when he was fired, along with a couple of other employees, including his boss, Shakira, who has been working for the company for 4 years. For all the below questions provide statutory support for your answer (i.e. what statute/regulation section provides the answer?).

THE ANSWERS TO THESE QUESTIONS CAN BE FOUND UNDER PART XV of the ESA and under ESA Regulation 288.

1. Under the ESA, what is Rasmus entitled to? Under the ESA, what is Shakira entitled to?

2. Does your answer change if they were fired with a large number of other employees? How so?

3. Is there anything that would prevent them from getting ESA notice/pay?

4. Is there a limit on how much they can get in compensation? i.e. Is there a cap?

5. Can they try and get BOTH ESA statutory notice AND Common Law Reasonable Notice?

6. Can they get their jobs back under the ESA?

7. Is there a time limit on when they can file their complaint? Or get a remedy?

IV. Tesfay was dismissed without cause from his job as a data processor at IBM after 20 years' employment. He was 58 years old at the time of his dismissal. Assume that none of the exemptions from notice and severance pay apply. Tesfay was earning $2,000 per week.

1. Applying the Ontario ESA, determine the amount of statutory notice of termination to which Tesfay is entitled. Is he entitled to severance pay in Ontario? Why or why not? If Tesfay is entitled to severance pay, how much severance pay is he entitled to?

2. Think back to Chapter 10, when we examined the requirement of employers to provide "reasonable notice" of termination. Assume Tesfay had no notice of termination clause in his employment contract and that his employer provided him only with the amounts to which he was entitled under the Ontario ESA.

3. Estimate how much reasonable notice a court would order if Tesfay sued IBM for wrongful dismissal using the 'Bardal factors'. Based on your assessment, approximately how much more money would Tesfay be entitled to under his contract as compared to under the Ontario ESA? You can double-check your assessment using the links to the "Termination Calculator" and "Severance Calculator" apps I have given you access to. Were you close?

4. Considering your estimates, discuss why Tesfay might nevertheless decide NOT to sue IBM for wrongful dismissal.

V. Why might workers be reluctant to exercise their right to refuse unsafe work?

VI. What have workers given up and gained under workers' compensation? Why might workers prefer to receive workers' compensation instead of seeking redress under the common law?

VII. What test do WCBs use to determine whether an injury is compensable? Using this test, would a bee sting injury incurred by a worker whose job is outdoors be compensable?

VIII. Go online to access the OHSA and the Guide to the OHSA (links to both provided on the moodle site) (or use the CanLII website, to find any jurisdiction's occupational health and safety statute). Locate the provisions regarding workers' right to refuse unsafe work. The legal rules may also be found in a regulation that was passed pursuant to the OHSA statute. If you have difficulty finding the section, try searching "right to refuse unsafe work" and your province and see if your government has prepared an information website that explains the legal rules (and perhaps links to the legislation).

Answer the following questions:

1. What section states when a worker can refuse unsafe work?
2. What section sets out test(s) must be met for work to be considered unsafe?
3. What section states what an employer must do when a worker refuses unsafe work?
4. What section states what happens if a worker believes the work remains unsafe?
5. What section of the legislation prohibits retaliation against workers for exercising their OHS rights?