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Week 11 Reading Comprehension Questions

This document contains 6 questions and responses about employment law issues from an employment law textbook. Question 1 discusses the legal issues around reference letters for employees dismissed without cause. Question 2 identifies factors courts consider for reasonable notice of dismissal. Question 3 discusses the legal dilemma of an employee facing significant changes in employment terms without notice. Question 4 identifies 5 ways employers can reduce wrongful dismissal actions. Question 5 discusses benefits and drawbacks of working notice versus payment in lieu of notice. Question 6 discusses factors courts consider for determining if a contract is frustrated due to employee incapacity.

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Gabi Cristina
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101 views3 pages

Week 11 Reading Comprehension Questions

This document contains 6 questions and responses about employment law issues from an employment law textbook. Question 1 discusses the legal issues around reference letters for employees dismissed without cause. Question 2 identifies factors courts consider for reasonable notice of dismissal. Question 3 discusses the legal dilemma of an employee facing significant changes in employment terms without notice. Question 4 identifies 5 ways employers can reduce wrongful dismissal actions. Question 5 discusses benefits and drawbacks of working notice versus payment in lieu of notice. Question 6 discusses factors courts consider for determining if a contract is frustrated due to employee incapacity.

Uploaded by

Gabi Cristina
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Week 11 Reading Comprehension Questions – Gabriela Silva Paula (A01342763)

Question 1
Discuss the legal issues that arise when an employee who was dismissed without just
cause and whose performance was less than satisfactory requests a letter of
reference from an employer.

Former employers are not liable for providing a negative reference letter (Filsinger et. al.,
2021, p.518). Therefore, even if the employee was dismissed without just cause, if his
performance was poor, the employer can write a negative reference as long as the
comments are not inaccurate or malicious, as such comments can contribute to a
defamation claim.
However, if the employer wants to write a positive letter, should also be mindful to not be
over positive and, in the future, face a lawsuit from the new employer for negligent
misrepresentation (Filsinger et. al., 2021).

Question 2
What are the factors that a court considers in determining reasonable notice when
an employer dismisses an employee without just cause?

1. The employee’s age


2. The employee’s position
3. The employee’s length of service
4. The employee’s level of compensation
5. The availability of similar employment is based on the employee’s experience,
training and qualifications.

Question 3
Discuss the legal dilemma of an employee whose employer makes a significant
change in the terms of employment without providing reasonable advance notice.

When an employer makes significant changes in an employee’s contract, this employee


can either stay in the company to see if the changes really represent a breach of the
employment contract. Or resigns and alleges constructive dismissal.
However, if the employee decides to stay in the company for a period longer than what
the courts consider a reasonable amount of time, he might be interpreted as accepting the
new terms of employment and no longer entitled to claim constructive dismissal.
On the other hand, if he decides to resign and claim constructive dismissal, he risks the
courts finding the changes were not crucial in the employment terms to constitute
constructive dismissal, and this employee will find himself out of job and unable to claim
damages (Filsinger et. al., 2021).
Question 4
Identify and discuss five ways in which an employer may reduce the potential for
wrongful dismissal actions.

An employer can reduce potential wrongful dismissal actions by:


- Hiring Intelligent: by comprehensive interviews and checking references,
employers can reduce the chances of hiring a person that is not suitable for the job
and eventually will need to be dismissed.
- Probationary Periods: employment contracts should establish probationary
periods for the first few months of work and state that during this period,
employees can be terminated without notice.
- Paper Trail: the employer should document every problem or misconduct
employees are involved, in order to create a paper trail that supports/proves a
dismissal for just cause.
- Termination Clause: the employer should negotiate a termination clause when
hiring employees and add the clause to the employment contract. The termination
clause states the amount of notice or pay in lieu in case of dismissal, but shouldn’t
override the minimum standards established in the Employment Standards Act.
- Progressive Discipline: employers should apply progressive discipline before
deciding to dismiss the employee. Only when there is proof of serious
misconduct, the employer should discharge the employee for cause.

Question 5
From an employer’s point of view, what are some of the benefits and drawbacks of
providing an employee with working notice rather than pay in lieu of notice?

Providing working notice can be cheaper for an employer than paying in lieu of the
notice period and the employer will also have the employee working and keep the
business productive during the notice period.
However, if the employee was dismissed due to low performance, “it may be
counterproductive to leave the employee in the workplace during the notice period. It is
likely that the employee’s efforts will, if anything, deteriorate further, and his attitude
will affect the morale of the remaining staff” (Filsinger et. al., 2021, p.487).

Question 6
What are the factors that a court considers in determining whether a contract of
employment has been frustrated due to an employee’s physical incapacity?

Courts are unlikely to determine the frustration of the contract due to an employee’s
physical incapacity because employers have the duty to accommodate the employee to
the point of undue hardship. However, in exceptional circumstances, courts can consider
a breach of the employment contract based on:
- The sick pay provisions in the contract: if the employee return to work while in
the period of the sick pay is available, the contract is not considered frustrated.
- Length of the contract: an indefinite contract is less likely to be considered
frustrated once there was no end date for the employment relationship.
- Nature of employment: if many other employees perform the same work as the
employee, the contract is less likely to be considered frustrated than if the
employee was crucial and performed unique work in the company.
- Prospects of recovery: if the employee is expected to recover, the contract is less
likely to be considered frustrated.
- Employment history: long employment relationship contracts are less likely to be
considered frustrated than short/recent relationships.

References:

Filsinger et. al. (2021). Employment Law for Business and HR Professionals – Alberta &
BC Edition (4th ed.)

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