Employment Law Assignment: Identifying Legal Issues Involved Within The Case Of EDIT

Question

Task: Mary’s Story
Mary works for EDIT as a Human Resources manager. She is in the process of hiring for a Customer Service position and is at the point of beginning interviews. The position has occasional overtime, usually with little notice provided, but it pays very well. She has invited Peter, Carlos and Misha in for interviews based on her assistant’s review of resumes received.

They are scheduled to arrive at two-hour intervals. This will give Mary a chance to read the resumes and write her notes after each interview.

Misha is first to arrive. Mary escorts him into an interview room. The interview is structured, and Mary is careful to follow the script that she has set out. She asks Misha to read a typical phone conversation, with Mary playing the role of the customer. This is to give Misha an idea of what will be expected, and for Mary to evaluate Misha’s script reading. Misha has very good experience, but Mary can see from the resume that the experience was in Poland, where the laws and work environment are different. She is also concerned that he will leave once he acquires Canadian experience. She notes that Misha’s accent is very thick but is understandable.

Carlos is second to arrive. They exchange small talk about each other’s family and Mary learns he has one young child with another one due in April. Mary escorts him into an interview room. The interview is structured, and Mary is careful to once again follow the script that she has set out. Carlos reads the script well. He is very enthusiastic about the position and states that being a recent graduate, he can be trained in the ways of the company without any other ideas interfering. He is very good.

Peter is the last. Peter is an older gentleman and Mary is sure that she recognizes him as someone she has seen in the shopping mall who gives out samples of new products. Mary knows from a friend that all persons hired in those “sampling’ positions in the mall are retired and over 65. Peter interviews very well. His script reading is excellent. However, when Mary looks at the resume, she doesn’t see the mall position listed and wonders what else hasn’t been listed.

At the last-minute Mary invites Ellen in to apply for the job. Ellen had worked at EDIT during the previous summer helping in the office and is now looking for full time employment. Mary had met Ellen when she had given her a lift to the mall during the summer and had always liked her. Mary thought Ellen would be excellent on the phones and would likely need no training. She is also a recent graduate of Fleming College, Mary’s old college.

After the interviews, Mary reviews her notes. Misha doesn’t have local experience and his accent is very thick. She recalls that Carlos’ wife is soon to give birth and that he would want to take time off to help her and the busy season is coming up. Peter lied on his resume. The choice is clear, and she decides to hire Ellen.

She calls Ellen by phone to offer her the job, commencing as a Customer Service Representative on July 2, 2021 at a salary of $45,000, with 3 weeks’ vacation. Ellen accepts the job offer gladly and tells Mary that she will see her Monday.

Mary sends out an email to the manager of the Customer Service area and tells her that she has hired Ellen for the role. The manager, Charlene, is less than enthusiastic as she knows that Ellen had an attendance problem when she worked in her department in the summer, which Charlene did not deal with because Ellen was only there for the summer. Ellen played on a baseball team weekends and always left early Fridays and Mondays, game days.

At Ellen’s first day of work Mary meets with her to have her sign the documentation that she has for her. It is the contract that says that she is employed for 18 months, with the first 6 months being probationary. Also included in the contract is a non-solicitation clause for a period of 2 years following termination and a non-disclosure covenant. Ellen would be learning the company’s clients and confidential information and so it’s important to guard that information. The relevant clauses are:

During the first 6 months of her employment, Ellen will be working in a probationary period. EDIT reserves the right to terminate the employment of Ellen for any reason without notice or pay in lieu thereof during this probationary period, notwithstanding the provisions of the paragraphs below.

EDIT may terminate the employment of Ellen without notice or any payment at any time during the course of this Agreement with just cause.

EDIT may terminate the employment of Ellen without notice and without cause at any time by providing written notice of termination to Ellen. If EDIT terminates Ellen’s employment without cause after the probationary period, Ellen will be entitled to a lump sum payment equivalent to 2 weeks’ pay in lieu of notice plus an additional 2 weeks’ pay in lieu of notice for each completed year of employment as well as benefit continuation for the period.

Ellen agrees that she shall not during the term of the Agreement or within two years after the date of the expiry of this agreement or the termination or cessation of Ellen’s employment pursuant to this agreement, either directly or indirectly, at any time solicit, or accept business from, or the patronage of, or render any services to, or sell to, or attempt to contract with, any customers of EDIT.

Ellen also agrees to keep all information of EDIT confidential.

Ellen signs on the dotted line Mary points to her to sign on, as per Mary’s instructions to Ellen that she just needs to sign on the dotted line so that she can start her duties. In all Ellen is with Mary for less than a minute and is on her way to the department without delay.

Four months later problems arise with Ellen. Although the customers love her, and there is no issue with her work, for the past few weeks she’s has been coming in late and leaving early. Charlene wants to terminate her employment. Charlene thinks that this is just a repeat of the summer behavior, and she will not stand for it. Charlene had mentioned a couple of times to Ellen that she needs to be on time for work and needs to stay until her workday is completed, but Ellen is ignoring the comments. She’s trying to complain about others on the team rather than admitting she has an attendance problem.

Each time Charlene talks to Ellen about her attendance, Ellen has tried to tell Charlene about her teammate Reba’s abusive comments. Reba ridicules Ellen’s tattoos, her choice of lifestyle (lesbian) and the fact that she was born in the United States. These comments are occurring almost daily now, and Ellen is trying to avoid Reba by not having to travel on the same bus to and from work. But Charlene always cuts Ellen off before she can speak, always lecturing her about being late. Ellen thinks that maybe Charlene knows and wants to avoid talking about it. Certainly, everyone else in the work area had noticed and were talking about it for a few days already. Ellen didn’t think even Charlene could have missed the poster of “the two women kissing” hung over her desk the other day with the words “like it” scrawled over it.

Charlene asks Mary to prepare a letter of termination for Ellen. Ellen had been late that morning and Charlene had had enough. Mary, concerned, asks to speak to Charlene about the termination. She hopes to meet with her at 2 pm but Charlene will not agree to meet and insists that Ellen be terminated that day.

Mary has no choice and calls Ellen to come see her in her office on her break. Ellen thinks that this will be the perfect opportunity to speak about Reba, but she is handed the letter of termination before she can say anything and is told that she is terminated. Because it is so fast, Mary doesn’t have Ellen’s final pay cheque ready, but asks her to sign a document titled “Release” which Mary says she needs to process the final pay. Mary explains that as Ellen is still in the probationary period as per her contract, there is no pay in lieu of notice. Mary tells Ellen to go back to her desk to pack up her personal items. Ellen, upset, goes back alone, packs away her personal items, including the birthday cards she received from her colleagues that morning and some other papers and leaves.

Two days later, Mary hears through the grapevine that Ellen was hired by their biggest competitor.

Ellen calls Mary the following week and says that she should receive at least 2 months’ pay in lieu of notice. Mary refers to the contract and tells her that she is not entitled to statutory notice or any other notice as per her Agreement. And, she did sign a Release. Ellen tells Mary that her cheque better be in the mail or she will complain to the “appropriate parties”, and that she has a lot to complain about.

Mary also hears from Charlene. It appears Ellen is calling all their customers and trying to entice them to do business with her new employer. She believes that Ellen must have taken their customer list with her when she left. What is Mary going to do about it Ellen signed her contract saying she wouldn’t do that, didn’t she

Mary is very distressed about everything and goes back to sit quietly in her office. She looks at the pile of mail on her desk and sees that there is a letter from the Human Rights Tribunal of Ontario. She opens it to learn that there has been a complaint filed by Carlos. She reviews her notes and can’t understand why he’s made the complaint.

Instructions to write employment law assignment:
You have just been hired by the EDIT owners to review everything that has happened, including a review of their practices, paperwork and actions by staff. You’ve been fully briefed and have all the information (as detailed above). You have been asked for a full report about the potential liabilities, causes etc. and have been asked to back up your findings with explanations referencing the law or legal concepts for each instance where the action/practice/paperwork was wrong. You are also asked to provide guidance so that EDIT may avoid such issues in the future.

The text has examples of cases that you may use to support legal concepts. Canlii.org may also be used to search for more examples and for statute references. Please remember that when you use online cases, you need to make sure that they support your position – read more than the case note and demonstrate in writing why the case is useful to your point.

Answer

Introduction
As per the review of the given scenario presented in the employment law assignment, it has been found that have been various issues involved within the case of EDIT, and there involve various legal issues which have to arise during the course of employment of Ellen. The issues that have been identified from the given scenario are as follows:

• Mary has discriminated against her place of origin by rejecting Misha for the job.
• Mary has discriminated against her age by rejecting Peter.
• Ellen is liable for not fulfilling the restrictive covenants of non-solicitation and non-disclosure of information of EDIT.

Application of Rules:
The people of Canada enjoy the right to equal opportunity in employment under the Canadian Human Rights Act as well as through the human rights enactments in the provinces of Canada. According to the human rights provisions as provided under the human rights legislation of Canada protects the rights of the employees against discrimination. The protections that are provided under the human rights law in Canada with respect to employment include equal opportunities in hiring, unlawful termination of employees as well as treatment and preferences of the employees. There has been no definition that defines the term discrimination under the human rights law of Canada (L&E Global Knowledge Centre., 2021).According to the case of Andrews v Law Society of British Columbia (1989), it has been fined that the term discrimination refers to the distinction which may be made intentionally or not but affects the personal characteristics of a group or individuals and limit the access to opportunities in the employment of the groups or individuals (Scc-csc.lexum.com., 2021). Therefore, the term discrimination includes the distinction which is made based on the personal characteristics which are protected under the law and these differences create limitations in accessing various opportunities or limit the rights of the individuals or group. The human rights status has provided certain protected grounds which shall protect the rights of the employees from being discriminated against. Such protected grounds include age, disability, marital and family status, race, color and place of origin of the individuals, religion, sex, gender, and sexual orientation (Ohrc.on.ca., 2021). According to the Human Rights Code of Ontario, age has been defined as the capacity of the individual as per the legislative provision to enter into a contract. Therefore, if an individual has attained capacity as per the provisions of law then the individuals should get the equal opportunity which is provided to any other individual who has attained the same capacity under the provisions of the law. Therefore, according to the Human Rights Code, individuals who have attained the age capacity cannot be discriminated against age. According to Human Rights Code

In Ontario Disability has been defined as the conditions which may be visible or invisible and create a limitation for an individual in accessing various opportunities in employment (Canada.ca., 2021). However, the human rights legislation has provided that any kind of disability or mental impairment will not limit any individual's opportunity for employment. In case of any disability arising from any injury or disorder which has been caused due to an accident or by birth will not restrict an individual opportunity for employment or the employer cannot discriminate against an individual's right to employment. According to the Human Rights Code of Ontario, the employer is prohibited against discriminating on the grounds of marital or family status of the individuals, the code has also prohibited dissemination against the ground of race, color, place of religion of birth which also includes the accent of the individual (Cfib-fcei.ca., 2021).

There has been a restrictive covenant that has been included within the employment contract under the employment law of Canada. According to the Supreme Court in the case of J.G. Collins Insurance Agencies Ltd. v. Elsley Estate, it has been stated that the court has developed tests in determining whether the employment contract should include restrictive covenants in order to protect the rights of the employer and its business interests. The restrictive covenants are put in employment contracts so that the employee both during and after the end of the contract does not act in such a manner that will create an obstruction of threat to the former employer (Canlii.org., 2021). For the purpose of protecting the interest the employer uses, non-competition, non-solicitation, and non-disclosure restrictive covenants. In case the employee violates any of the restrictive covenants as mentioned and agreed by the employee during the signing of the employment contract in such case the employee shall be made liable to pay compensatory damages for the violating or breach of contract.

Application:
According to the given scenario, Mary has rejected the employment opportunity of Mesha by discriminating on the ground of her place of origin as well as the accent or language that she speaks. This violates the provisions of the Human Rights Code of Ontario which has provided under the protected grounds that no employee shall be discriminated on the ground of place of origin and by violating the provision Mary has discriminated against Mesha on the grounds of place of origin and this has made Mary liable under the Human rights Code.

According to the given scenario, Mary has also violated the Human Rights Code of Ontario by discriminating against Peter on the grounds of age. As Mary knew that Peter has an age above 65 therefore, Mary has not selected Peter as the candidate in the employment opportunity in EDIT and by doing this she has violated the provisions of the Code of Ontario.

Moreover, it has been reviewed from the given case study Ellen who has been appointed in the Customer Service position has been terminated by providing just cause to Ellen and after her termination, Ellen has joined one of the competitors and has solicited the clients of EDIT which has violated the provisions of the employment contract result in a breach of contract which results in liability against Ellen and EDIT is entitled to bring an action against Ellen for violating the restrictive covenants as provided within the employment contract which has been agreed and signed by Ellen.

Conclusion
Therefore, from the above review, it has been found that there have been various scenarios where the human resource manager Mary as well as the employee Ellen has violated the provisions of various legislations of Canada and thereby making themselves liable under the statutes.

Reference List
Canada.ca. (2021). Rights in the workplace - Canada.ca.Retrieved 23 October 2021, from https://www.canada.ca/en/canadian-heritage/services/rights-workplace.html.
Canlii.org. (2021). 1978 CanLII 7 (SCC) | Elsley v. JG Collins Ins. Agencies. Retrieved 23 October 2021, from https://www.canlii.org/t/1mkbk.
Cfib-fcei.ca. (2021). Ontario Human Rights Code: Frequently Asked Questions | CFIB. Retrieved 23 October 2021, from https://www.cfib-fcei.ca/en/tools-resources/ontario-human-rights-code-frequently-asked-questions#:~:text=The%20Ontario%20Human%20Rights%20Code,%2C%20good%2C%20contracts%20and%20facilities.
L&E Global Knowledge Centre. (2021).Anti-Discrimination Laws in Canada. Employment law assignment Retrieved 23 October 2021, from https://knowledge.leglobal.org/anti-discrimination-laws-in-canada/.
Ohrc.on.ca. (2021). The Ontario Human Rights Code | Ontario Human Rights Commission. Retrieved 23 October 2021, from http://www.ohrc.on.ca/en/ontario-human-rights-code.
Scc-csc.lexum.com. (2021). Andrews v. Law Society of British Columbia - SCC Cases. Retrieved 23 October 2021, from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/407/index.do