Deck 21: Terminating the Employment Relationship

Question 1

Which of the following would constitute bad faith on the part of an employer according to the Supreme Court of Canada?

A) refusing to provide a deserved letter of reference
B) failing to give pay in lieu of notice upon termination
C) failing to provide notice in lieu of pay upon termination
D) laying off a long-term employee

Answer 1

A

Question 2

Which of the following would you expect a court to consider when determining the proper amount of notice to award a wrongfully dismissed employee?

A) the employer's reason for dismissal
B) the employee's duty of honesty
C) the age of the employee
D) whether the employee objected to a fundamental change to the working conditions

Answer 2

C

Question 3

What are the primary factors that tend to lengthen the period of notice an employee is entitled to on termination?

A) a high degree of specialization,age,and economic climate
B) the character of employment,and the availability of similar employment
C) the inducement to join,length of service,and industry practice
D) the length of service,age,company policy,and industry custom and practice

Answer 3

B

Question 4

Which of the following correctly describes the implied rights and duties of an employer that wishes to terminate an employment relationship without cause?

A) Employers cannot be sued provided they provide two weeks of notice.
B) Employers cannot terminate without just cause.
C) Employers may terminate but must give reasonable notice.
D) Employers may terminate provided they have "near cause" and give reasonable notice.

Question 5

Which of the following cases set out the factors to be considered in determining quantum of appropriate notice on termination of employment as endorsed by the Supreme Court of Canada?

A) Dowling v. Halifax (City of) [1998] S.C.R. 22
B) Cronk v. Canadian General Insurance (1994), 19 O.R. (3d) 515 (Gen Div.)
C) Machinger v. HOJ Industries Ltd. [1992] 1 S.C.R. 986
D) Bardal v. Globe & Mail Ltd. (1960) 24 D.L.R. (2d) 140 (Ont. H.C.)

Question 6

Which of the following is the term for chronic absenteeism and lateness without authorization or excuse?

A) serious misconduct
B) habitual neglect of duty
C) conduct incompatible
D) incompetence

Question 7

Jarvis has been employed as a "greeter" in a department store for several years.Recently,his employer recently advised him that he is being transferred to the shipping bay of the store where he will unload trucks.On what legal basis might Jarvis challenge his employer's plan?

A) His employer has failed to prove that it has a genuine business reason for the transfer.
B) An employer cannot change any conditions of employment without first obtaining an employee's consent.
C) The employer has breached employment standards legislation.
D) Without his consent,the move will constitute constructive dismissal.

Question 8

Excel Roofing Ltd.terminated an employee for failing to wear a safety harness while working on a project.What factor or factors might a court consider when determining whether Excel had just cause?

A) the employer's history regarding occupational health and safety violations
B) whether the employee was a full-time or part-time employee
C) whether the employee suffered an injury as a result of not wearing the safety equipment
D) whether the employer can show that clear instructions were given to the employee

Question 9

Which of the following is equally influenced by collective agreements and individual employment contracts?

A) whether an employee simply leaves when the contract term expires
B) the implied term of just cause
C) the amount of notice that must be given,regardless of just cause
D) police officers' special rights in the case of dismissal

Question 10

On February 16,Angelina's doctor placed her on total disability,indicating her condition would likely take the next four months to resolve.On March 1,her employer delivered written notice to Angelina,advising her position of employment would terminate May 1.With regard to the reasonable notice principle,what would be the most likely outcome of any legal proceedings?

A) The judge will look strictly to the length of service to assess the reasonableness of notice.
B) The judge will find that payment in lieu of notice must be given to effect termination during disability.
C) The judge will find that disability negates any advantage of having notice,rendering it ineffective.
D) The judge will look to balance competing interests by finding a halfway position.

Question 11

The defendant's counsel argued his client's termination of the plaintiff's employment without notice after one incident of incompetence was justified.The court ruled in favour of the defendant.Which of the following would most strongly support the trial judge's decision in these circumstances?

A) The conduct is prejudicial to the employer's business.
B) The employee falsely claimed to possess the requisite skills.
C) The conduct was incompatible with the employer's business.
D) The employee's conduct placed him in a conflict of interest.

Question 12

After three years of stellar performance,Roddy has begun to miss deadlines.After missing the third deadline,his human resource manager met with Roddy and gave him his first written warning.In this situation,what is the role of the duty to warn?

A) to make the employer fully aware of the wrongful behaviour
B) to determine whether there is any excuse for this behaviour
C) to argue there is just cause for termination
D) to inform the employee of the consequences of failing to improve

Question 13

What is the term for an employee's deliberate failure to carry out lawful and reasonable orders?

A) willful insolence
B) insubordinate conduct
C) willful disobedience
D) incompatible conduct

Question 14

What term implied by common law will influence an employer's ability to effect the termination of an employment arrangement?

A) condonation
B) reasonable notice
C) litigation
D) Peter principle

Question 15

Fatima has worked as a paralegal with Shep & Shap LLP for 15 years.The firm began to downsize,and Fatima received notice of termination that she considers to be inadequate.What term of reasonable notice would Fatima's lawyer believe she is entitled to receive?

A) 15 months
B) 15 weeks
C) 8 months
D) 8 weeks

Question 16

Footage from a retail store's security cameras shows a long-term employee stealing groceries from the store.What advice would you expect the store's human resources department to provide management in these circumstances?

A) The employee can be terminated with two weeks' notice.
B) A single act of dishonesty can justify dismissal if sufficiently serious.
C) The employee cannot be fired because one-time incidents cannot be used as a basis for dismissal with cause.
D) The employer cannot terminate unless it provides reasonable notice.

Question 17

A court is hearing a matter regarding an alleged wrongful termination involving serious allegations of employee dishonesty.What must the court consider to arrive at its decision?

A) whether the conduct is exempt for being outside working hours
B) the implied principle of condonation
C) the nature and context of any dishonesty
D) whether written warnings were given for each instance

Question 18

An investigation into habitual absenteeism revealed Howard had a second,part-time job.When the work schedules occasionally conflicted,he claimed absence due to illness from his full-time job.By doing so,he received sick pay from one employer while earning a wage from the second.Would the employer be justified in terminating Howard?

A) Dishonesty on Howard's part would justify termination in this instance.
B) Howard cannot be dismissed unless his employer expressly prohibited this behaviour.
C) The employer can terminate Howard only if it first applies progressive discipline.
D) Howard can be immediately terminated because he has breached his fiduciary obligations.

Question 19

According to policy,Celine's employer has accumulated a number of minor incidents in her employee performance records over the course of her three years with the organization.If her employer anticipates that it may be necessary and advantageous to terminate Celine's employment,which of the following would strongly influence the decision?

A) duty to accommodate
B) duty of good faith
C) duty to mitigate
D) duty to warn

Question 20

The case of Dowling v.Halifax (City of),[1998] 1 S.C.R.22,involved a long-serving employee entitled to 24 months' notice of termination.The employer reduced the notice period to six months due to an incident of inappropriate conduct.What was the position taken by the Supreme Court of Canada in this instance?

A) The reduction was rejected,and an assessment of reasonable notice was ordered.
B) The reduction was justified because of just cause.
C) The reduction was justified because of near cause.
D) The reduction was rejected,as the conduct did not merit dismissal with or without notice.

Question 21

All week,Jeff consistently ran the Naked News on his computer while Tess was present taking instruction on his files.Despite her obvious discomfort and repeated requests that he turn the program off,Jeff,a senior partner,ignored the requests.Would a claim for constructive dismissal be justified in this instance?

A) A claim is justified by proving a poisoned or intolerable work environment.
B) Management needs to enact procedures to deal with bad behaviour.
C) Unilateral change in working conditions requires employee consent.
D) Unilateral change in working conditions fails to trigger constructive dismissal.

Question 22

Kyrie has filed a wrongful termination suit alleging bad faith on the part of her former employer of nine years.At the time of her dismissal from her law clerk position,Kyrie earned $52 000 annually and fringe benefits of $100 per month.What damage award has Kyrie's lawyer suggested could be awarded under the labour standards legislation in these circumstances?

A) $11 200
B) $32 800
C) $44 800
D) $98 400

Question 23

With respect to punitive damages,what is meant by the statement "the employer's bad faith acts must be so malicious and outrageous that they are deserving of punishment on their own"?

A) To attract punitive damages,conduct must amount to an independent actionable wrong.
B) An employer's bad faith act must be particularly egregious to exclude punitive damages.
C) Punitive damages are to be awarded through an award that reflects actual damages.
D) Punitive damages are contrary to the courts' policy of balancing commercial interests.

Question 24

Kyle was terminated from his position as an accountant.He believes he was unjustly terminated and intends to sue for wrongful dismissal.The only alternate employment Kyle can find is working as a security guard.Is Kyle obligated to take this job?

A) no,because he was wrongfully terminated
B) yes,because his duty to mitigate requires him to accept any available alternate employment
C) no,because his duty to mitigate does not require him to take a lower-level job
D) yes,because his duty to mitigate requires him to take any available employment while he continues to look for an accounting position

Question 25

Jasmine's former employer has been unsuccessful in establishing just cause for her termination,and the court has determined that she is entitled to the equivalent of one year of notice.What will the court use as a basis for calculating the amount of her damages?

A) The court will award her one year of her base salary.
B) The court will calculate the amount of salary and benefits she would have received over a one-year period plus her out-of-pocket expenses.
C) The court will calculate the amount of her base yearly salary plus her out-of-pocket expenses.
D) The court will award non-pecuniary damages to compensate Jasmine for the humiliation and depression she suffered as a result of the termination.

Question 26

Jerry has decided to accept his employer's termination package,which will give him six months pay and benefits in lieu of six months of notice.What condition will the employer likely stipulate in exchange for its agreement to pay Jerry the six months of pay and benefits?

A) that Jerry sign a release giving up his right of action against the employer
B) that Jerry not seek legal advice
C) that Jerry make the decision immediately
D) that Jerry retrain his replacement

Question 27

Which of the following is a distinguishing feature of the grievance process?

A) It is used to resolve disputes in union contracts.
B) It is available to all employees.
C) It can be used in conjunction with a lawsuit for wrongful dismissal.
D) It is resolved through the mediation process.

Question 28

What does the duty to mitigate require of an employee whose position has been constructively terminated?

A) The employee could be required to accept a lower position in the same company.
B) It requires the former employee to take reasonable steps to find comparable employment.
C) The individual is expected to accept a lower-level job in another company to reduce loss.
D) It requires the former employee to take the first job available.

Question 29

To which of the following are factors such as the age of the employee and his or her attachment to the community relevant in employment law?

A) determining whether an employee must mitigate by taking a lower-paying job
B) determining the adequacy of the national job market to accommodate the mitigation of loss
C) determining whether an employee must mitigate by taking a lower-level job
D) determining whether a duty to mitigate requires an employee to move

Question 30

Which of the following would be included in the monies prescribed by legislation as due and owing to an employee at the time of their termination?

A) statutory entitlement for medical benefits replacement
B) statutory entitlement for disability insurance replacement
C) statutory entitlement to stock options
D) statutory entitlement to severance pay

Question 31

Which of the following is a distinguishing characteristic of the collective agreement,with respect to challenging an employer's decision to terminate an employment relationship with a unionized employee?

A) The matter will immediately be referred to a binding arbitration process.
B) The employee is entitled to a remedy somewhere between dismissal and reinstatement.
C) The employee is limited to proceeding through the grievance process.
D) The matter is referred to a court if arbitration fails to resolve the grievance.

Question 32

Alex's employment has been terminated due to a recent amalgamation.She met with Roger,the human resources senior manager,and reviewed the severance package being offered to her.Roger indicated that in his view the package was very generous and would expire at the end of the day.He urged Alex to accept the deal and sign a release,which she did.Why will Alex NOT be legally bound by the terms of the severance package or the release?

A) She was not given sufficient time to consider the package and to obtain independent legal advice.
B) The employee's right to sue cannot be waived.
C) The termination package was limited to statutory entitlements.
D) The termination package is unconscionable.

Question 33

Before making any changes affecting Kim's job,his human resources manager discussed the nature of the changes and the necessity for them.She asked Kim to assess the impact of the changes for the ensuing month.What is the human resource manager's motive for handling the proposed changes to Kim's employment arrangement in this manner?

A) to minimize the risk of triggering a constructive dismissal
B) to avoid the appearance of an employee demotion
C) to enact procedures to deal with incidents of bad behaviour
D) to avoid positive changes that trigger constructive dismissal

Question 34

How should an employee reconcile the duty to uphold the public's interest with the duty of loyalty and good faith to an employer with respect to exposing corporate wrongdoing?

A) The employee should sacrifice public interest to preserve his livelihood.
B) Duty of loyalty to the employer prevails.
C) Public interest must always prevail.
D) The duty of loyalty and good faith is upheld by policy of the courts.

Question 35

Having recently saved the company a half a million in lost productivity,Stan was ill-prepared for the unexpected termination of his employment and the humiliation of being escorted from the building.He advised his lawyer that after 25 years of continuous service,his employment contract provided for an annual salary of $120 000,an annual bonus of no less than $35 000,and monthly fringe benefits of $100.What amount will Stan's lawyer ask a court for in damages?

A) $156 200
B) $276 200
C) $331 400
D) $351 450

Question 36

Martina's company is downsizing,and she has been notified that her employment relationship will be terminated.She has been asked to give up her right of action with respect to the termination.What is the proper procedure to be followed by Martina?

A) to seek advice regarding her benefit and severance entitlement before accepting a settlement
B) to seek advice regarding severance pay entitlement prior to signing a settlement agreement
C) to seek independent advice on the adequacy of the offer prior to signing a release
D) to seek independent advice on the benefits of advancing a lawsuit to avoid statutory limits

Question 37

What was the impact of the Supreme Court of Canada's decision in its landmark case Honda Canada Inc.v.Keys on the awarding of damages in cases of wrongful dismissal?

A) An arbitrary increase in an award for damages based on bad-faith dismissal is no longer appropriate.
B) Notice periods are now extended where the employer defamed the employee in a wrongful dismissal case.
C) Notice periods are now extended to compensate for an employee's hurt feelings in wrongful dismissal cases.
D) Employees may now sue for additional damages for human rights violations when suing for wrongful dismissal.

Question 38

According to the Supreme Court of Canada in Honda Canada Inc.v.Keys,when would it be appropriate to award punitive damages in the context of a wrongful dismissal suit?

A) where the employer attempted to offer the employee less than statutory notice
B) in most cases where the dismissal is found to have been without cause
C) where the employee has suffered depression as a result of the wrongful termination
D) only in exceptional cases where the employer's acts are malicious or outrageous

Question 39

Why is specific performance or reinstatement rarely an option provided by the courts to an employee claiming wrongful termination from a position in the non-unionized sector?

A) Employment standards tribunals award these remedies.
B) Courts are reluctant to interfere with business decisions.
C) Litigation is a slow process,and the employee has a duty to mitigate losses.
D) Common law views the employment relationship as irreparably damaged.

Question 40

Due to her firm's downsizing plans,Marina learned she would be expected to complete clerical work,at her current rate of pay,for five lawyers rather than two.After 25 years of service to the firm,Marina is unhappy with management's decision.Which of the following is her lawyer most likely to indicate as being a valid reason for launching a suit for wrongful termination?

A) A reasonable person would believe the contract's essential term was being changed.
B) Changing a fundamental term of an employee contract amounts to constructive dismissal.
C) The required bad-faith element of constructive dismissal is readily apparent.
D) The test for determining whether a substantial change is made is an objective one.

Question 41

Whistle-blowing by an employee is an offence punishable by the employer because it directly conflicts with the employee's duty of loyalty and good faith to the employer.

Question 42

A release is a written statement discharging another from an existing duty.In order to be enforceable in relation to a matter involving termination of the employment relationship,the employee must have obtained independent legal advice with respect to the consequences of her signing the release.

Question 43

An employer's motivation for providing six weeks for Riel to find alternative employment prior to dismissal from his position is based on the need to ensure its compliance with reasonable notice requirements.

Question 44

A minor change will not generally trigger a constructive dismissal,although the cumulative effect of many minor changes may do so.

Question 45

In circumstances involving the termination of an employment relationship,the duty to mitigate strictly rests with the employee,who is required to a take lower-level employment to offset financial losses.

Question 46

An employee may be entitled to additional damages for the manner of dismissal.

Question 47

Younger employees in their 20s and 30s are generally entitled only to short periods of notice despite high rates of unemployment among youth.

Question 48

Either an employer has just cause to dismiss an employee and the employee is not entitled to any notice,or the employer does not have just cause to dismiss and the employee is entitled to the full period of reasonable notice.There is no halfway position.

Question 49

Disputes involving the interpretation,administration,or application of the individual content of a collective agreement,as it pertains to the wrongful termination of a unionized employee,must be submitted to a grievance process.

Question 50

Bad faith on the part of an employer is often the result of its claiming unfounded allegations of cause for terminating an employment relationship with an employee.

Question 51

Employment standards legislation typically provides that an employee is,on average,entitled to receive one month's notice for each year of employment,up to a maximum of 24 months.

Question 52

Courts have found a breach of an employer's duty of good faith and fair dealing for failing to conduct a proper investigation prior to dismissal and for making it difficult for an employee to find new employment.

Question 53

The period of notice required to terminate an indefinite-term employment contract involves the consideration of employment standards legislation,contractual provisions,if any,and the common law.

Question 54

In Honda Canada v.Keys,the Supreme Court of Canada has called into question the practice of awarding of additional damages for bad faith damages,sometimes referred to as the "Wallace bump."

Question 55

One of the primary factors to be considered by an employer when determining an employee's entitlement to a specific amount of notice of termination of employment is the availability of similar employment in the local job market.

Question 56

The Supreme Court has stated that if an employee can prove that the manner of dismissal caused mental distress,the damages should be awarded through an extension of the notice period,not through an award that reflects the actual damage.

Question 57

The advantage of suing for defamation instead of wrongful dismissal is that damages for defamation are usually significantly higher than those for breach of the employment contract.

Question 58

In addition to severance pay,an employee's settlement package for termination of the employment relationship may include financial or career counselling and a factual letter of reference.

Question 59

Common law provides an employee considered to have been wrongfully terminated with an option of enforcing specific performance requirements of the employment contract,reinstatement,or extended notice or pay in lieu thereof.

Question 60

Reasonable notice is calculated by a rule of thumb of one month of notice for every year of service.

Question 61

What is a "progressive discipline" policy and how might implementing such a policy impact the rights of employers and employees?

Question 62

Identify the changes that are considered to be fundamental to the triggering of an action for constructive dismissal.

Question 63

Discuss the ramifications of failing to mitigate losses resulting from the wrongful termination of employment.List the factors that must be considered by a court in determining whether an employee's duty to mitigate requires them to move to find new employment.

Question 64

Briefly explain how a low-level employee may pursue an action for constructive dismissal and any benefits that may flow to that employee as a result.

Question 65

Identify the factors to be considered in determining how much notice is required to meet the employer's obligation to provide reasonable notice.Include all the primary factors,as well as other factors that tend to lengthen notice.

Question 66

Identify the factors that must be examined in each situation of termination of an employment relationship based on grounds for termination without notice.

Question 67

Explain the distinction between "near cause" and "just cause."

Question 68

Discuss the benefits that may be derived by both parties from a termination settlement.

Question 69

Explain what "just cause" means,and identify the types of employee conduct that would be considered just cause.

Question 70

Discuss the rights and obligations of employers with respect to chronically absent or late employees.