Deck 21: Terminating the Employment Relationship

Question 1

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

Answer 1

C

Question 2

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

Answer 2

D

Question 3

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

Answer 3

D

Question 4

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 5

Why are employees who have been terminated for cause more likely to commence a legal action for wrongful dismissal?

A) Dismissal for cause disentitles the employee to any compensation.
B) Employers prefer to settle lawsuits contesting termination for cause.
C) Employers' faulty policies and procedures for dismissal are actionable.
D) Contingency fee arrangements make it affordable for them to do so.

Question 6

Which of the following is required to determine whether an employee's conduct justifies dismissal?

A) disobedience in a matter of substance
B) conduct prejudicial to the employer's business
C) assessment of context and circumstances
D) conduct that is incompatible with duties

Question 7

Roslyn, an accomplished figure skater and instructor, entered into a one-year contract with Figure8s Skating Club Inc. in 2001. The club continued to offer Roslyn one-year contracts each year, which Roslyn consistently accepted before the May 30 deadline. Roslyn consulted a lawyer when her contract for 2011 failed to materialize. Why will Roslyn be entitled to seek damages for wrongful termination?

A) Fixed-term contract employees have prior notice of the need to find alternative work.
B) Fixed-term contract employees are entitled to considerably more than statutory notice.
C) There is an absence of breach of fixed-term contract; employment ends on the expiry of the term.
D) A series of contracts is an indefinite term, creating entitlement to reasonable notice.

Question 8

During a meeting with in-house counsel, the human resource manager identified something as being easy to articulate but difficult to apply. Which of the following was the manager most likely referring to?

A) neglect of duty
B) willful disobedience
C) grounds for dismissal
D) prejudicial conduct

Question 9

Which of the following will be the result if an employee breaches the duty of loyalty and good faith to his or her employer?

A) dismissal, if conduct is limited to on-the-job activity
B) dismissal, due to the employee's conflict of interest
C) dismissal, if the employer's standard is fair and reasonable
D) dismissal based on incompatible conduct

Question 10

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 11

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

Question 12

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 13

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 14

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 15

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 16

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 17

In his decision in the case of a 55-year-old clerical worker with 35 years' experience, Mr. Justice McPherson's award of 20 months' reasonable notice on termination was viewed as a signal of the judiciary's willingness to re-examine the notice factors. That view became nebulous upon the Court of Appeal reducing the award to 12 months on appeal. Which of the following is a valid severe criticism of the Court of Appeal's decision in this matter?

A) It is repugnant to modern, contemporary Canadian social values.
B) An inappropriate weight should not be given to the character of employment.
C) All factors used to determine reasonable notice are to be appropriately weighted.
D) It is obvious that enforcing employee rights is repugnant to Canada's judiciary.

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

To terminate an employment relationship for cause, what must be evident after an employee has been given a warning and an opportunity to improve?

A) adequate training due to visual impairment
B) economic hardship due to reduced business
C) a respectful extended debate of the matter
D) a continuing substandard level of performance

Question 20

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 21

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 22

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 23

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 24

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 25

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 26

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 27

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 28

In a matter involving an alleged wrongful termination of employment, why would a lawyer encourage the dismissed employee to commence an action for defamation against the employer?

A) Higher damages and the possibility of a punitive damage award for defamation will result.
B) Damages for intentional infliction of mental suffering are limited to the notice period.
C) Additional damages for intentional infliction of mental suffering will result.
D) Damages are limited to the notice period, but an award of punitive damages is possible.

Question 29

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 30

Jocelyn was notified of her pending transfer to Calgary, where she would manage a satellite office. At 58 years old, she is comfortable residing in the small French-speaking community where she grew up. The chances of her being able to speak her first language in Calgary are slim. Assuming that Jocelyn's contract is silent regarding transfers, what will most likely be the result if Jocelyn refuses the transfer and sues?

A) The court will find there has been a breach by the employer, and the employer's insensitivity will add to the notice entitlement.
B) The court will find there has been a breach by the employer, as the unilateral change would trigger a constructive dismissal.
C) The court will find there has been a breach by Jocelyn because an employer is entitled to make changes to an employee's duties and role where necessary.
D) The court will find there has been a breach by Jocelyn because her refusal to accept the transfer would be seen as insubordination.

Question 31

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 32

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 33

According to the Supreme Court of Canada, which of the following is an act of employer bad faith with respect to the termination of an employment relationship?

A) failing to provide disability coverage in a benefit package
B) withholding statutory severance pending the return of company property
C) terminating for communication with potential employers
D) alleging cause for termination where there is none

Question 34

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 35

An employee may have to decide between pursuing a claim for wrongful termination in the court system or through an employment standards tribunal. Before choosing the employment standards tribunal, which of the following should any employee be fully aware of?

A) High-level employees typically use this route to gain more than statutory notice.
B) Employee reinstatement or specific performance will be enforced on findings of bad faith.
C) Compensation is limited to an amount equivalent to the statutory period of notice.
D) It is most often used by low-level employees owing to its reduced cost.

Question 36

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 37

What is the role of the arbitrator in assessing whether the penalty imposed upon a unionized employee by their employer was appropriate in the circumstances?

A) to look for evidence of progressive discipline
B) to order reinstatement without loss of pay, benefits, or seniority
C) to assess why the grievance process failed
D) to fashion a remedy somewhere between dismissal and reinstatement

Question 38

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 39

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 40

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 41

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 42

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 43

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 44

In addition to damages claimed for wrongful dismissal, the dismissed employee may sue for defamation and intentional infliction of mental suffering.

Question 45

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 46

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 47

The Supreme Court of Canada noted that the doctrine of constructive dismissal is a creature of both common and civil law. The doctrine is therefore applicable in Quebec, as well as in all of Canada's common law provincial jurisdictions.

Question 48

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 49

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 50

With respect to management of the employment relationship, warnings, especially oral warnings, need to be documented so that an employer can establish that the duty to warn was fulfilled.

Question 51

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 52

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 53

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 54

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 55

A fundamental term is a term that is considered to be essential to the employment contract.

Question 56

According to the Supreme Court of Canada, an employer who conducts a dismissal "in bad faith" may be vulnerable to additional damages, known as the Wallace bump.

Question 57

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 58

A senior-level employee, a high-level employee, and a manager are each entitled to receive one week of notice for each year worked, up to a maximum of eight weeks.

Question 59

Joseph's employer may issue notice of termination of his employment while he is on parental leave from his position.

Question 60

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 61

Discuss how an employer who wishes to terminate an employee may do so in the absence of just cause.

Question 62

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 63

Briefly discuss why employment law has become increasingly important for employers.

Question 64

Contrast the employment standards legislation provision of reasonable notice for lower-level employees with that of mid-level employees.

Question 65

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

Question 66

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

Question 67

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 68

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

Question 69

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 70

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