Employment Law for Business and Human Resources Professionals 4th edition Test Bank

Type:

Test Bank

Employment Law for Business Resource: and Human Resources Professionals Edition:

4th Edition

Author(s):

Kathryn J. Filsinger

Employment Law for Business and Human Resources Professionals Revised Fourth Edition Kathryn J. Filsinger

Test Bank Student Version

2019 Emond Montgomery Publications Toronto, Canada

Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Student Version

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Chapter 1: Overview of Legal Framework ........................................................................................................ 4 Multiple choice.............................................................................................................................................................................4 True or False .................................................................................................................................................................................9 Chapter 2: Human Rights Issues: Hiring ........................................................................................................ 14 Multiple choice.......................................................................................................................................................................... 14 True or False .............................................................................................................................................................................. 18 Chapters 3 and 4: Common Law Issues and the Employment Contract ............................................. 22 Multiple choice.......................................................................................................................................................................... 22 True or False .............................................................................................................................................................................. 26 Chapter 5: Human Rights Issues: Duty to Accommodate, Harassment, Accessibility Standards ....................................................................................................................................................................................... 30 Multiple choice.......................................................................................................................................................................... 30 True or False .............................................................................................................................................................................. 35 Chapter 6: Equity in the Workplace ................................................................................................................. 40 Multiple choice.......................................................................................................................................................................... 40 True or False .............................................................................................................................................................................. 43 Chapter 7: Employment Standards Act ........................................................................................................... 46 Multiple choice.......................................................................................................................................................................... 46 True or False .............................................................................................................................................................................. 54 Chapters 8 and 9: Occupational Health and Safety Act and Workplace Safety and Insurance Act (Ontario) .................................................................................................................................................................... 61 Multiple choice.......................................................................................................................................................................... 61 True or False .............................................................................................................................................................................. 66 Chapter 10: Privacy Inside and Outside the Workplace .......................................................................... 72 Multiple choice.......................................................................................................................................................................... 72 True or False .............................................................................................................................................................................. 75 Chapter 11: Navigating the Employment Relationship ............................................................................ 79 Multiple choice.......................................................................................................................................................................... 79 True or False .............................................................................................................................................................................. 83 Chapter 12: Resignation and Retirement ...................................................................................................... 87 Multiple choice.......................................................................................................................................................................... 87 True or False .............................................................................................................................................................................. 88 Chapter 13: Dismissal With Cause .................................................................................................................... 91 Multiple choice.......................................................................................................................................................................... 91

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True or False .............................................................................................................................................................................. 93 Chapter 14: Termination and Severance Pay Requirements Under the Employment Standards Act................................................................................................................................................................................. 96 Multiple choice.......................................................................................................................................................................... 96 True or False ........................................................................................................................................................................... 100 Chapters 15 and 16: Dismissal Without Cause and Post-Employment Obligations .................. 104 Multiple choice....................................................................................................................................................................... 104 True or False ........................................................................................................................................................................... 109

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Student Version

Chapter 1: Overview of Legal Framework Multiple choice 1. Which one of the following employers is covered by the Canada Labour Code? (a) a book store (b) a mining company (c) a bank (d) a hair styling salon 2. The “common law” refers to law that is: (a) passed by a legislature (b) made by judges (c) common to both private and public sector employees (d) none of the above 3. To become a statute, a provincial bill must: (a) pass two readings in the provincial legislature (b) pass three readings in the provincial legislature (c) pass a vote in the Senate (d) receive royal assent 4. The Canadian Charter of Rights and Freedoms applies: (a) only where there is some element of government action or conduct (b) whenever someone’s rights to equality have been infringed (c) to federally regulated employees only (d) to individuals between the ages of 18 and 64 only 5. The Canadian Charter of Rights and Freedoms: (a) forms part of Canada’s Constitution (b) can be used to strike down employment laws that contravene its requirements (c) applies only where there is some element of government action or conduct (d) all of the above 6. Most employment statutes in Ontario are interpreted and enforced by: (a) Small Claims Court (b) specialized tribunals and boards (c) Ontario’s Superior Court (d) none of the above

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7. Most employees in Ontario (about 90%) are covered by: (a) provincial employment laws (b) federal employment laws (c) municipal employment laws (d) none of the above 8. A bill in the provincial legislature goes to committee after: (a) first reading (b) second reading (c) third reading (d) receiving royal assent 9. “Statute law” refers to: (a) law passed by a legislative body (b) law made by judges (c) law based on the Napoleonic Code (d) law that covers employed citizens only 10. In common law jurisdictions such as Ontario, the non-union employment relationship is viewed as being: (a) based in statute law (b) based in contract law (c) based in tort law (d) none of the above 11. Which of the following people are covered by some or all of the standards in Ontario’s Employment Standards Act? (a) a judge in Scarborough, Ontario (b) an HR analyst at Bell Canada in Toronto, Ontario (c) a bank teller in Hamilton, Ontario (d) a unionized construction worker in Brampton, Ontario 12. The Canadian Charter of Rights and Freedoms can be used to strike down employment laws that are found to contravene its requirements because: (a) it forms part of Canada’s Constitution (b) it was written in 1867 and so takes precedence over later laws (c) it outlines the legislative authority of Parliament and the provincial legislatures (d) it protects individual rights

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13. The “notwithstanding clause” in the Canadian Charter of Rights and Freedoms allows the federal or provincial governments to enact legislation that infringes the Charter if: (a) the government expressly declares that the law will operate notwithstanding the Charter (b) the law in question applies only to government employees (c) the law in question will expire in five years or less (d) none of the above 14. If you work in a grocery store in Toronto, you are covered by: (a) federal employment laws (b) Ontario employment laws (c) Toronto employment laws (d) all of the above 15. A privative clause: (a) attempts to limit the parties’ ability to have a decision of an administrative tribunal reviewed by the courts (b) entirely displaces the jurisdiction of the courts (c) attempts to protect the privacy of the parties to a legal action (d) none of the above 16. Section 15 of the Canadian Charter of Rights and Freedoms guarantees people in Canada: (a) freedom of religion (b) equality rights (c) freedom of association (d) freedom from arbitrary detention 17. Whether your workplace is covered by provincial or federal employment laws depends on: (a) the number of employees in the organization (b) whether the employer operates in more than one province or territory (c) the jurisdiction in which the employer is incorporated (d) the industry sector (e.g., mining, health, manufacturing) in which the employer operates 18. Which one of the following originates with the provincial legislature? (a) statute law (b) regulations

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(c) common law (d) the Canadian Charter of Rights and Freedoms 19. Which of the following is NOT true? (a) independent contractors can deduct their expenses for tax purposes (b) independent contractors are covered by only some of the provisions of the Employment Standards Act (c) workers are more likely to be characterized as independent contractors if they own their own tools (d) workers are more likely to be characterized as independent contractors if they work for more than one organization 20. A judge in Ontario is hearing a dispute over an employment contract. The lawyer representing the plaintiff points to a case from British Columbia that covers exactly the same issue and supports her client’s position. In this situation, this case would be: (a) binding (b) persuasive (c) distinguishable (d) none of the above 21. The Supreme Court of Canada decision in Vriend v Alberta is notable because in that decision: (a) the court used the notwithstanding clause in the Charter to deny statutory benefits to the claimant (b) the court used the Charter to strike down the definition of “spouse” in the Family Law Act (c) the court used the Charter to strike down the denial of statutory severance pay to employees whose contracts have been frustrated because of illness or injury. (d) the court applied the Charter to “read in” to a human rights law a category of people that a provincial legislature had previously excluded 22. Which of the following is NOT true of agents? (a) agents can bind an organization to a contract with customers or other parties, even without the organization’s knowledge (b) agents represent a “principal” in dealings with a third party (c) agents are almost always categorized as independent contractors (d) a human resources manager who hires a new employee is an agent 23. “Private” bills cover non-public matters. Based on its title, which of the following is a private bill? (a) Bill PR47

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(b) Bill 47e (c) Bill PM47 (d) Bill NP47 24. In the 1925 decision of Toronto Electric Commissioners v Snider, the court held that in Canada employment law falls within: (a) the federal government’s jurisdiction based on its authority over commerce. (b) the provincial government’s jurisdiction based on its authority over property and civil rights (c) the provincial government’s jurisdiction based on its authority over labour relations (d) the federal government’s jurisdiction based on its authority over peace, order and good government 25. Health and safety protections for employees working in provincially regulated workplaces in Ontario are primarily found in Ontario’s Occupational Health and Safety Act, Health and safety protections for workers in federally regulated workplaces are primarily: (a) based in the common law, rather than statute law (b) found in the Canadian Occupational Health and Safety Act (c) found in the Canada Labour Code (d) found in the Canadian Human Rights Act 26. In a civil action based on breach of contract, the burden of proof is on: (a) the plaintiff to prove, beyond a reasonable doubt, all of the elements required for a successful claim of breach of contract (b) the defendant to prove, beyond a reasonable doubt, that she did not breach the contract (c) the plaintiff to prove, on the balance of probabilities, all of the elements required for a successful claim of breach of contract (d) the defendant to prove, on the balance of probabilities, that he did not breach the contract 27. In Keenan v Canac Kitchens Limited the Ontario Court of Appeal looked at the issue of exclusivity in the context of dependent contractors and decided that: (a) workers will not be considered dependent contractors if a significant portion of their income was earned working for a competitor. (b) workers will be considered dependent contractors even if a significant portion of their income was earned working for a competitor as long as those earnings were earned several years before their business relationship with the defendant ended.

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(c) workers will not be considered dependent contractors if any portion of their income was earned working for a competitor. (d) workers will still be considered dependent contractors if, looking at the totality of the relationship, there was sufficient economic reliance on the defendant to warrant such a finding.

True or False 1. The employees of a company that is incorporated under the laws of Canada will be covered by federal employment legislation.

TRUE/FALSE 2. Governments that use the notwithstanding clause in the Canadian Charter of Rights and Freedoms must renew this declaration every five years or it will no longer be effective.

TRUE/FALSE 3. Applications for judicial review of the decisions of administrative tribunals are rarely successful.

TRUE/FALSE 4. In Canada, the federal and provincial governments appoint judges; they are not elected.

TRUE/FALSE 5. Statute law is the part of the law that has developed through the decisions of judges.

TRUE/FALSE 6. All employees who work in Ontario are covered by Ontario’s employment legislation.

TRUE/FALSE 7. In the case of Smith v Jones, Smith is the plaintiff (the person bringing the action against the other party) and Jones is the defendant.

TRUE/FALSE 8. Tort law applies only where there is already a contractual relationship between the two parties.

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TRUE/FALSE 9. General requirements of law are contained in statutes while more detailed, specific requirements are typically contained in the regulations.

TRUE/FALSE 10. Federally regulated companies are those that are incorporated under the laws of Canada rather than under a provincial law.

TRUE/FALSE 11. The Ontario Court of Appeal is the highest and final level of appeal for all disputes arising in Ontario.

TRUE/FALSE 12. Stare decisis is a common law principle that requires lower courts to follow legal decisions of higher courts where similar issues are involved.

TRUE/FALSE 13. A “respondent” is the party opposing an appeal of a previous decision.

TRUE/FALSE 14. Employees of a federally regulated employer who work in Nova Scotia will be covered by the employment laws of Nova Scotia.

TRUE/FALSE 15. All pieces of provincial legislation automatically come into force on the day that they receive royal assent.

TRUE/FALSE 16. The Canadian Charter of Rights and Freedoms is part of Canada’s Constitution.

TRUE/FALSE 17. Where there is a conflict between the common law and statute law, the common law governs.

TRUE/FALSE

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18. A tort occurs whenever there is a breach of contract.

TRUE/FALSE 19. In Ontario Nurses’ Association v Mount Sinai Hospital, the Ontario Court of Appeal held that denying ESA severance pay to employees whose contracts have become frustrated because of illness or injury does not violate the Charter’s equality provision because the dominant purpose of severance pay is to compensate employees who will return to the workforce.

TRUE/FALSE 20. Private members’ bills rarely pass.

TRUE/FALSE 21. It is easier for a government to change a regulation than to change a statute.

TRUE/FALSE 22. The most important factor in creating a valid independent contractor relationship is having a properly drafted contract.

TRUE/FALSE 23. Independent contractors are not covered by the pregnancy or parental leave provisions of Ontario’s Employment Standards Act. TRUE/FALSE 24. All bills require royal assent before they can become a statute.

TRUE/FALSE 25. An individual who is hired for a specific period or task is automatically considered an independent contractor under the law.

TRUE/FALSE 26. An independent contractor is entitled to the same rights and remedies as employees under Ontario’s employment standards legislation.

TRUE/FALSE

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27. As long as the contract clearly establishes that the parties intend their relationship to be one of independent contractor and principal, courts and tribunals will usually accept their characterization of the relationship.

TRUE/FALSE 28. In Jones v Tsige, the Ontario Court of Appeal recognized a new tort of “intrusion upon seclusion.”

TRUE/FALSE 29. To maintain solicitor–client privilege, when a lawyer is retained as part of an investigation into workplace misconduct, the retainer agreement should clearly state that its dominant purpose is to ensure a proper and timely investigation.

TRUE/FALSE 30. A private member’s bill that relates to employment law must be introduced into the legislature by the Minister of Labour.

TRUE/FALSE 31. Where a court looks to a scholarly article for assistance in interpreting a statute, it is said to be using an “external aid” for interpretation.

TRUE/FALSE 32. “Gender identity” is not one of the protected grounds set out in the equality section (s 15) of the Charter of Rights and Freedoms but it is likely that a court would consider it an analogous ground and thereby covered.

TRUE/FALSE 33. The first step in the process of analyzing whether or not a statute violates section 15 of the Canadian Charter of Rights and Freedoms is determining if it is a reasonable limit in a free and democratic society.

TRUE/FALSE 34. Defamation is an example of an unintentional tort.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Student Version

35. Under the 2017 amendments to the Employment Standards Act, it is now an offence for an employer to misclassify a worker as an employee when they are in actual fact an independent contractor.

TRUE/FALSE

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Chapter 2: Human Rights Issues: Hiring Multiple choice 1. Under Ontario’s Human Rights Code, discrimination in employment is prohibited on: (a) 16 grounds (b) 15 grounds (c) 14 grounds (d) 13 grounds 2. According to the Supreme Court of Canada, discrimination on the basis of “family status” includes discrimination based on: (a) the status of having a family (b) the identity of one’s family members (c) a and b (d) none of the above 3. If pre-employment medical examinations are performed, they should be done: (a) before the job application is filled out (b) at the end of the job interview (c) after a conditional offer of employment is made (d) none of the above 4. In the Mottu decision, the arbitrator decided that requiring the complainant to wear a bikini top at work for the “beach theme” evening: (a) constituted discrimination based on sex because only female servers were required to wear gender-specific outfits of a sexual nature (b) did not constitute discrimination because the employer left it up to her whether she worked that evening or not (c) did not constitute discrimination because a night club is a special service organization and therefore can discriminate on the basis of gender (d) none of the above 5. Which of the following is NOT covered by one of the prohibited grounds of discrimination in employment under Ontario’s Human Rights Code? (a) physical appearance (b) pregnancy (c) creed (religion) (d) perceived disability 6. During a job interview, it is NOT acceptable to request information concerning:

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(a) work experience (b) home address (c) preferred form of address (e.g., Miss, Mrs., Ms.) (d) highest level of education achieved 7. On a job application form, it is NOT acceptable to request one of the following: (a) work history (b) name (c) home address (d) name of elementary school attended 8. Under Ontario’s current Human Rights Code, an employer may discriminate against a job applicant or employee based on age: (a) when the person is under 18 years of age (b) when the person is under 18 or over 64 years of age (c) when the discrimination is unintentional (d) never 9. Section 14 of Ontario’s Human Rights Code covers “special programs” and it: (a) requires Ontario employers to have a special program designed to relieve hardship or economic disadvantage for certain disadvantaged groups (b) allows Ontario employers to have a special program designed to relieve hardship or economic disadvantage for certain disadvantaged groups (c) requires Ontario employers to hire members of disadvantaged groups regardless of their qualifications (d) none of the above 10. Under Ontario’s Human Rights Code, the term “disability” generally does NOT include: (a) perceived disabilities (b) psychological problems (c) drug or alcohol dependencies (d) the flu 11. Job applicants should be asked for their social insurance number: (a) on the application form (b) during the job interview (c) after a conditional offer of employment is made (d) never

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12. The preamble to Ontario’s Human Rights Code sets out: (a) the five social areas in which discrimination is prohibited (b) the prohibited grounds of discrimination (c) the intent of the Code (d) all of the above 13. In Ontario Human Rights Commission v Christian Horizons, the Ontario Divisional Court found that the employer, an evangelical Christian organization that operated residential homes for people with developmental disabilities: (a) could restrict employment to individuals who followed its values because it was a special service organization (b) could restrict employment to individuals who followed its values as long as following those values was a BFOR for the position (c) could not restrict employment to individuals who followed its values because discriminating against someone based on sexual orientation is specifically prohibited under the Code (d) could not restrict employment to individuals who followed its values because it was a publicly funded general residential care provider and did not require its residents to comply with the same restrictions 14. Which of the following situations is probably NOT covered by Ontario’s Human Rights Code? (a) Sadie is dismissed for being away from work for three days with the flu (b) Bert is suspended for three days for taking a day off work for a religious holiday because the employer knows that other employees of the same faith did not take that day off (c) Nancy is demoted for breastfeeding her baby at work (d) Ernie is dismissed after undergoing a sex change operation 15. Applications under Ontario’s Human Rights Code are made to which one of the following bodies? (a) the Ontario Labour Relations Board (b) the Ontario Human Rights Commission (c) the Human Rights Tribunal (d) the Ministry of Labour 16. Your employer intends to deny a 17-year-old female job applicant a job in customer service because she does not believe the student is mature enough to handle customer complaints. If the employer takes this action, which one of the following is true? (a) the employer has violated the Human Rights Code because the job applicant is female and therefore from a traditionally disadvantaged group

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(b) the employer has not violated the Human Rights Code because in these circumstances, it is clearly a BFOQ that the person be mature enough to handle the job duties (c) the employer has violated the Human Rights Code unless her or she can show that he or she could not accommodate the job applicant without suffering undue hardship (d) the employer has not violated the Human Rights Code because the Code does not protect employees or applicants under the age of 18 from age-based discrimination 17. With respect to the two newest grounds of prohibited discrimination—gender identity and gender expression—which one of the following is true? (a) an employer should require medical documentation before accommodating an employee on the basis of gender identity (b) an employer should insist that an employee who is transitioning to become a woman, for example, be treated as a man until sex reassignment surgery is complete (c) a workplace rule that prohibits cross-dressing is acceptable if the employer can prove that it is based on customer preferences (d) how an employee self-identifies is the key factor in triggering the duty to accommodate on the basis of gender identity 18. Which one of the following is not allowed under the Ontario Human Rights Code? (a) a nepotism policy that gives preference for student employment to the children of current employees (b) a nepotism policy that prevents closely related employees from working in the same area (c) an affirmative action program that allows an employer to prefer or promote people who are from an historically disadvantaged group (d) parents who refuse to hire a live-in nanny for their young children based on one of the prohibited grounds of discrimination 19. Religious beliefs and practices are protected against discrimination as long as: (a) those beliefs are sincerely held and those practices are an essential element in that religion (b) those beliefs are sincerely held (c) the majority of adherents to that faith engage in those same practices (d) those practices are required of all adherents to that faith 20. Which one of the following is NOT covered under the prohibited ground of “sex”: (a) someone who is discriminated against based on being pregnant

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(b) someone who is discriminated against based on trying to become pregnant, including someone who is receiving fertility treatments (c) someone who is discriminated against based on recovering from childbirth (d) someone who is discriminated against based on their gender identity 21. Under which one of the following Ontario statutes are employers prohibited from requiring employees to wear high heeled shoes? (a) the Ontario Human Rights Code (b) the Occupational Health and Safety Act (c) the Employment Standards Act (d) the Workplace Safety and Insurance Act 22. To prove a “prima facie” case of discrimination, the applicant must establish three elements. Which one of the following is NOT one of those three elements: (a) the applicant must show that she is a member of a group protected by the Code (b) the applicant must show that she suffered adverse (negative) treatment (c) the applicant must show that the respondent employer intended to discriminate against her (d) the applicant must show that there was a connection between the adverse treatment and the protected ground of discrimination 23. Which one of the following grounds of discrimination covers how a person publicly represents their gender? (a) gender identity (b) gender expression (c) sex (d) sexual orientation

True or False 1. A recruiter should not ask a job applicant if he or she is able to relocate (even if that is a BFOR) until a conditional offer of employment is made.

TRUE/FALSE 2. Discrimination on the basis of citizenship is allowed where the employer imposes a preference that a supervisor is, or intends to become, a Canadian citizen.

TRUE/FALSE 3. A person who is discriminated against in employment because he is a member of the Green Party may file an application under Ontario’s Human Rights Code.

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TRUE/FALSE 4. Although language is not one of the prohibited grounds of discrimination under Ontario’s Human Rights Code, it can be an element of a complaint based on one or more of the other grounds.

TRUE/FALSE 5. Ontario’s Human Rights Code applies only where there is an element of government action or conduct.

TRUE/FALSE 6. If operating a vehicle is an essential job duty, the requirement for a valid driver’s licence may be referred to in an advertisement, even though it bars applicants who are unable to obtain a driver’s licence because of a disability.

TRUE/FALSE 7. Under Ontario’s Human Rights Code, the prohibited ground of “disability” includes psychiatric, as well as physical, disabilities.

TRUE/FALSE 8. On a job application form, an employer may ask whether the applicant has ever been convicted of a crime.

TRUE/FALSE 9. An employer and a union may contract out of certain provisions of Ontario’s Human Rights Code.

TRUE/FALSE 10. A special service organization that primarily serves a group protected by Ontario’s Human Rights Code may choose to employ only members of that group, regardless of the position.

TRUE/FALSE 11. It is acceptable to ask a job applicant if she is legally entitled to work in Canada at the job interview stage, but not on the job application form.

TRUE/FALSE

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12. Denying an employee a training opportunity because she is 65 is a contravention of Ontario’s Human Rights Code.

TRUE/FALSE 13. Under Ontario’s Human Rights Code, customer preference is not one of the factors considered in deciding if a job-related standard is reasonable and bona fide.

TRUE/FALSE 14. It is never appropriate to ask a job applicant during an interview whether he or she has a record of convictions under a provincial statute such as the Highway Traffic Act. TRUE/FALSE 15. The special service organization exemption does not apply to private businesses.

TRUE/FALSE 16. An employer may automatically reject a job candidate on the basis that he or she is overqualified for the position because education is not one of the prohibited grounds of discrimination under the Code.

TRUE/FALSE 17. Pre-employment drug tests are prima facie discrimination on the ground of perceived disability.

TRUE/FALSE 18. As long as it is non-profit, an organization that falls within the “special services organization” exception can discriminate against a job candidate based on any of the grounds found in the Human Rights Code.

TRUE/FALSE 19. Once an employee establishes a prima facie case of discrimination, the onus moves to the employer to show, beyond a reasonable doubt, that it did not discriminate contrary to the Human Rights Code.

TRUE/FALSE 20. Under the Ontario Human Rights Code, it is sometimes acceptable to ask during an interview whether the applicant is a Canadian citizen.

TRUE/FALSE

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21. Teresa is refused a job because of her association with an anti-poverty group. In this situation, the employer has violated the Ontario Human Rights Code.

TRUE/FALSE 22. Under section 17 of the Ontario Human Rights Code, only essential job duties can be considered in determining a job applicant’s ability to perform the job.

TRUE/FALSE 23. When a discriminatory factor such as age played only a minor part in the employer’s decision not to hire a job candidate, the Tribunal will find in favour of the employer.

TRUE/FALSE 24. Although “language” is not one of the 16 prohibited grounds of discrimination set out in Ontario’s Human Rights Code, generally an employer cannot discriminate on the basis of language unless language proficiency is a BFOR for the employee’s role.

TRUE/FALSE 25. The prohibited ground of “creed” protects individuals from discrimination on the basis of their religion or faith, as well as on the basis of being an atheist or agnostic.

TRUE/FALSE 26. Once an applicant has made out a prima facie case of discrimination in employment on a protected ground, the only remaining legal question is what remedy the adjudicator will impose on the respondent employer.

TRUE/FALSE 27. In Ontario, obesity is only considered a disability if it results from an underlying physical condition.

TRUE/FALSE 28. Provincially-regulated employers in Ontario are expressly prohibited from using genetic tests to see if a prospective employee is genetically predisposed to certain diseases.

TRUE/FALSE

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Chapters 3 and 4: Common Law Issues and the Employment Contract Multiple choice 1. The common law tort of “allurement” refers to a situation where an employer: (a) hires the employee without properly checking references (b) breaches the employment contract before it begins (c) entices the job applicant from another job through aggressive recruiting or inflated promises (d) none of the above 2. The restrictive clause that courts are least likely to enforce is: (a) a non-competition clause (b) a non-solicitation clause (c) a non-disclosure clause (d) an ownership of intellectual property clause 3. The rule of contra proferentem means that: (a) ambiguous or unclear language in a contract will usually be interpreted against the party that drafted it (b) ambiguous or unclear language in a contract will usually be interpreted in favour of the employee (c) ambiguous or unclear language in a contract will make that provision unenforceable (d) none of the above 4. A “severability clause” in a written employment contract means that: (a) the terms of a severance agreement are set out in the contract (b) if any part of the agreement is ruled invalid, the rest of the agreement remains enforceable (c) the employment contract sets out all of the terms of the contract (d) none of the above 5. If a written employment contract does not specify a probationary period, and a dispute arises, a court will find that under the common law: (a) there is a probationary period of 3 months (b) there is a probationary period of 6 months (c) there is a probationary period of one year

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(d) there is no probationary period 6. It is best to have a written employment contract signed: (a) just after the employee starts work (b) at the end of the employee’s probationary period (c) before the employee starts work (d) before the employee gets a chance to read it 7. In common law jurisdictions such as Ontario, the non-union employment relationship is viewed as being: (a) based in statute (b) based in contract (c) based in tort (d) none of the above 8. Which of the following is NOT true of a non-competition clause? (a) it is a restrictive covenant (b) it is difficult to enforce (c) if broken, it might lead to a claim against the employee for breach of contract (d) it protects an employer’s right to own the employee’s inventions 9. From a legal point of view, the practice of checking a job applicant’s references relates to: (a) complying with requirements found in statute (b) avoiding common law claims (c) avoiding human rights claims (d) none of the above 10. Which one of the following is correct with respect to background checks (e.g., police checks, reference checks, credit checks, education checks): (a) most types of background checks should be done after a conditional offer of employment is made (b) all types of background checks should be done after a conditional offer of employment is made (c) most types of background checks should be done immediately before a conditional offer of employment is made (d) all types of background checks should be done immediately before a conditional offer of employment is made 11. A temporary employment agency may only charge a client for hiring an agency employee if it does so within:

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(a) the first 6 months of the assignment (b) the first 9 months of the assignment (c) the first 12 months of the assignment (d) none of the above 12. To be enforceable, an employment contract requires “consideration.” This means that: (a) something of value must be exchanged for the promises given (b) the parties must not be unreasonable in the terms imposed (c) the employer must consider the employee’s situation in setting the terms (d) none of the above 13. Which one of the following clauses found in many written employment contracts is typically the most contentious? (a) severability clause (b) probationary clause (c) governing law clause (d) termination clause 14. Which of the following is NOT true? (a) the more a job exposes others to harm, the stronger the employer’s duty to check references becomes (b) before checking references, an employer should obtain the written permission of the applicant (c) inquiries made during reference checking should be tailored to each particular applicant (d) a paper trail documenting reference checks should include references who did not respond, as well as information received from those who did respond 15. The following clause is part of your employment contract: “Any modification to this Agreement must be in writing and signed by the parties or it shall have no effect and shall be void.” Which one of the following is true? (a) this is an “entire agreement clause,” whereby a court can only look at the words in the contract; oral conversations and promises will not be considered (b) this is a “severability clause,” and it ensures that if one provision in a contract is unenforceable, the rest of the contract will still be enforceable (c) this is a clause that primarily protects the interests of the employee (d) this is a clause that courts rarely enforce because it too often favours the employer 16. Which one of the following types of background checks should generally be done before a conditional offer of employment has been made? (a) education checks Copyright © 2019 Emond Publications. All rights reserved.

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(b) job reference checks (c) credit checks (d) police record checks 17. What is the name of the clause that typically appears at the end of a job application form that states that the information provided is true and complete to the applicant’s knowledge and that a false statement may lead to dismissal for cause? (a) a promissory clause (b) a reference confirmation clause (c) a good faith clause (d) an attestation clause 18. A prospective employer who is considering hiring an employee who is contractually bound to provide significant advance notice of resignation to his current employer must be particularly aware of the following common law action: (a) inducing breach of contract (b) allurement (c) anticipatory breach of contract (d) negligent misrepresentation 19. Generally speaking, an employer’s obligation to provide reasonable notice of termination to a non-unionized employee is: (a) an implied term of the employment contract (b) an express term of the employment contract (c) a contingent term of the employment contract (d) an ancillary term of the employment contract 20. What is the name of the contract terms that are found in such things as employee handbooks, HR policy manuals, retirement plans, and benefits handbooks. (a) implied terms (b) ancillary terms (c) contingent terms (d) express terms 21. Pia’s initial offer letter, which she accepted, did not contain a termination clause.

However, when she received the follow-up formal employment contract, she noticed that it contained a termination clause limiting her to minimum statutory entitlements on termination. In this situation, which one of the following is true? (a) the termination clause is likely enforceable because it is contained within the formal employment contract that governs the employment relationship

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(b) the termination clause is likely not enforceable because Pia did not receive new consideration for this new term (c) the termination clause is likely enforceable because the employment contract was written after the offer letter and therefore supersedes (overrides) the original offer letter (d) the termination clause is likely not enforceable because a non-union employee cannot be limited to the statutory minimum entitlements on termination.

22. Howard’s written employment contract was for a five-year term and it did not contain a termination clause. Half way into his fixed term contract his employer dismissed Howard on a without cause basis due to a slowdown in its business. In this situation, what monetary award would Howard probably be entitled to receive? (a) reasonable notice damages, as determined by the court (approximately 4 months pay) (b) payment for the remainder of his fixed term contract (i.e. 2 ½ years’ pay) (c) statutory entitlements only (2 weeks’ pay) as the employer had acted in good faith, dismissing him for justifiable business reasons (d) none of the above 23. In Wood v Fred Deeley Imports Ltd the Ontario Court of Appeal noted that if employers can remedy illegal termination clauses by making additional, voluntary payments upon termination: (a) they will be more likely to make those payments and thereby avoid a law suit (b) they will be less likely to take advantage of employees during pre-employment negotiations (c) they will have little incentive to draft legal and enforceable ones at the beginning of the employment relationship (d) they will be less likely to negotiate a termination clause in the employment contract in the first place

True or False 1. If an employment contract does not contain a clause setting out a probationary period, a judge will read such a clause into the contract and assume a probationary period of a minimum of three months.

TRUE/FALSE 2. A restrictive covenant is an agreement between the employer and employee that sets limits on what the employee may do even after he or she leaves the employment relationship.

TRUE/FALSE

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3. If an employment contract does not contain a termination clause, a judge will read into the contract an implied requirement that the employer provide reasonable notice of termination.

TRUE/FALSE 4. If an employer withdraws a job offer because of changed economic circumstances, it may still be legally liable for reasonable notice of termination of the employment contract.

TRUE/FALSE 5. As long as an employment contract is in writing, only two elements are needed to form a binding agreement—offer and acceptance.

TRUE/FALSE 6. An employer will be liable for negligent misrepresentation even if the person who made the misrepresentation honestly believed the statement was true.

TRUE/FALSE 7. Only written employment contracts are legally enforceable.

TRUE/FALSE 8. In Egan v Alcatel Canada Inc., the court decided that the new employer should not be liable for greater pay in lieu of reasonable notice damages based on the tort of inducement because it was her former colleagues, not the new employer, who had misled the plaintiff by failing to reveal that they had a financial stake in her taking the new job.

TRUE/FALSE 9. Lawsuits against former employers for giving negative references are rare.

TRUE/FALSE 10. Under the common law, an employee has an implied duty to provide reasonable notice of resignation.

TRUE/FALSE

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11. It is best to have a written employment contract signed by a new employee just after that employee starts work.

TRUE/FALSE 12. In Ontario, an employer may refuse to hire someone who has an unpardoned criminal record, even if the record does not relate to the job being applied for.

TRUE/FALSE 13. Under Ontario law, an employer who rejects an applicant for whom it has done a credit check may be required to advise the applicant of all information that it considered in the job application process, not just the credit report information.

TRUE/FALSE 14. An employer in Ontario is required to conduct a police check for all job applicants whose job duties include handling money.

TRUE/FALSE 15. The only background check that should be done after a conditional offer of employment is the job reference check.

TRUE/FALSE 16. To be considered a full-time employee in Ontario, an employee must work at least 35 hours per week for that employer.

TRUE/FALSE 17. Under the contra proferentem rule, ambiguous language in the employment contract will tend to be interpreted against the interests of the party who drafted that contract.

TRUE/FALSE 18. To be liable for committing the tort of fraudulent misrepresentation during the hiring process, the employer must have known that the misrepresentation was untrue.

TRUE/FALSE 19. The existence of a probationary clause in an employment contract undermines an employee’s later claim that they were improperly induced into leaving their former, secure employment.

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TRUE/FALSE 20. To be liable for inducing breach of contract the new employer must have either intended such a breach or was substantially certain that such a breach would result from its conduct.

TRUE/FALSE 21. Subject to certain exceptions, employers in Ontario must pay part-time employees the same rate of pay as full-time employees who are performing the same or substantially the same work under substantially the same working conditions.

TRUE/FALSE 22. Probationary clauses should be carefully drafted, specifically setting out what is precisely meant by the term “probation”. Otherwise, a court will probably find the term too ambiguous to be enforceable.

TRUE/FALSE 23. Non-competition clauses found in independent contractor agreements cannot be subject to the same level of judicial scrutiny as those found in employment agreements.

TRUE/FALSE

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Chapter 5: Human Rights Issues: Duty to Accommodate, Harassment, Accessibility Standards Multiple choice 1. Which party (or parties) has the burden of proof to show that accommodating an employee would constitute “undue hardship”? (a) the employee seeking accommodation (b) the employer asked to provide accommodation (c) the Ontario Human Rights Commission (d) the Human Rights Tribunal 2. The Ontario Human Rights Commission considers “undue hardship” shown where the cost of the accommodation would: (a) exceed $500 (b) exceed $10,000 (c) exceed $50,000 (d) substantially affect the viability of the employer’s business 3. Remedies under Ontario’s Human Rights Code can include: (a) ordering the employer to hire or reinstate an individual (b) compensation for lost earnings (c) compensation for non-monetary damages (d) all of the above 4. Under Ontario’s Human Rights Code, an employer is automatically responsible for: (a) workplace harassment based on a prohibited ground (b) workplace discrimination based on a prohibited ground (c) both of the above (d) neither of the above 5. The Ontario Human Rights Tribunal may refuse to deal with an application if the applicant has waited longer than: (a) 6 months from the last incident of discrimination to file the application (b) 9 months from the last incident of discrimination to file the application (c) 12 months from the last incident of discrimination to file the application (d) 24 months from the last incident of discrimination to file the application 6. The majority of decisions on human rights applications in Ontario are made by: (a) arbitrators appointed under collective agreements

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(b) the Ontario Human Rights Commission (c) the Ontario Human Rights Tribunal (d) Ontario’s Superior Court 7. Providing a voice synthesizer to help a physically disabled employee perform an essential job duty is an example of: (a) constructive discrimination (b) undue hardship (c) a BFOQ (d) reasonable accommodation 8. Under Ontario’s Human Rights Code, damages for mental anguish cannot exceed: (a) $1,000 per violation (b) $5,000 per violation (c) $10,000 per violation (d) none of the above 9. Under Ontario’s Human Rights Code, sexual harassment covers a broad range of comments or conduct. Whether any given comment or conduct constitutes sexual harassment depends on: (a) whether the harasser intended it to be offensive (b) whether a reasonable person in the recipient’s position would find the comments or conduct offensive (c) whether the recipient found the comments or conduct offensive (d) none of the above 10. In the Hydro-Québec case, the Supreme Court of Canada decided that the “duty to accommodate” requires an employer to: (a) make reasonable and moderate efforts at accommodation (b) accommodate up to the point where further accommodation is impossible (c) prove that it is impossible to accommodate the individual further without incurring undue hardship (d) none of the above 11. Which of the following is NOT true during an investigation of alleged sexual harassment? (a) witnesses should be interviewed together so that they can confirm or correct each other’s statements (b) witnesses should be interviewed separately (c) witnesses should be asked non-leading questions

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(d) witnesses should be asked to put their statements in writing 12. Where an employee files a human rights application with the Ontario Human Rights Tribunal, under the Code, an employer generally has: (a) 35 days to respond (b) 45 days to respond (c) 55 days to respond (d) 60 days to respond 13. In CEP v Irving Pulp and Paper Ltd., the Supreme Court of Canada ruled on the employer’s random alcohol testing policy. In that case, it decided that: (a) random drug and alcohol testing is justified as a BFOQ as long as the employer proves that the workplace is dangerous (b) random drug and alcohol testing can only be justified when the employer proves that the workplace is dangerous and that there is a serious problem with alcohol and drugs in the workplace (c) for privacy reasons, there are no workplaces in which random drug and alcohol testing is justified (d) none of the above 14. Employees who seek accommodation under Ontario’s Human Rights Code have a duty to cooperate in the accommodation process. Which one of the following is NOT part of that duty? (a) to request accommodation from the employer (b) to provide information to the employer regarding relevant restrictions or limitations (c) to provide the employer with a diagnosis of the disability from a qualified health care professional (d) none of the above 15. The human rights concept of “inclusive design” specifically means that: (a) employers must include disabled employees in their decision-making processes around the duty to accommodate (b) employers must be prepared to make exceptions to their employment policies when it is necessary to properly accommodate a disabled employee or job applicant (c) employers must keep special needs and requirements in mind when developing workplace rules and practices (d) all of the above 16. Applications under Ontario’s Human Rights Code are made to which one of the following bodies?

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(a) the Ontario Labour Relations Board (b) the Ontario Human Rights Tribunal (c) the Ontario Human Rights Commission (d) the Ministry of Labour 17. Firing an employee for filing a human rights complaint is called: (a) constructive discrimination (b) a reprisal (c) systemic discrimination (d) adverse impact discrimination 18. In Johnstone v Canada, the Federal Court of Appeal laid out several elements that a complainant must prove to establish a prima facie case of discrimination based on an employer’s failure to accommodate his or her employee’s childcare obligations.

Which one of the following is NOT one of those elements? (a) the complainant has already made reasonable efforts to meet his or her childcare obligations (b) the child is under the complainant’s care and supervision (c) the complainant’s childcare obligations include attending extracurricular activities that a parent would reasonably be expected to attend (d) the workplace interferes with the fulfillment of the employee’s legal childcare obligations 19. Under the Accessibility for Ontarians with Disabilities Act, 2005, the one workplace standard that came into effect in 2012 for all employers, regardless of size, relates to: (a) recruitment, assessment, and selection (b) workplace emergency response information (c) accessible formats and communication supports (d) performance management 20. Which one of the following is an example of ableism: (a) Nick’s employer allows him to work a flexible work schedule for health-related reasons (b) Carla’s employer modifies her duties to accommodate her physical disability (c) John, who uses a wheelchair, is unable to attend a training session held on the second floor because there is no elevator at his workplace (d) Linda’s employer bundles together job duties currently being performed by other employees to create a job that Linda is physically capable of performing

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21. In Bottiglia v Ottawa Catholic School Board the key issue was whether the employer could request that the employee undergo an independent medical examination (IME).

In that case the court held that: (a) an employer is entitled to request an IME whenever it thinks that a second opinion would be helpful (b) an employer is entitled to request an IME where it has legitimate concerns regarding the reliability of the employee’s treating expert (c) an employer is never entitled to request an IME as this would violate the employee’s privacy and human rights (d) an employer is entitled to request an IME whenever the employee is in receipt of employer-paid sick benefits 22. Which one of the following is NOT true concerning an employer’s process for responding to an employee’s request for accommodation: (a) there should be one process for responding to all requests for accommodation (b) it should be a two-way dialogue (or a three-way dialogue where the employee is unionized) (c) confidentiality should be maintained (d) it must provide that employees receive their preferred accommodation unless it would result in undue hardship to the employer 23. Which one of the following statements related to an employer’s duty to accommodate the use of marijuana for medical purposes is NOT true: (a) an employer may be required to allow an employee to smoke marijuana while on the job (b) an employer may be required to allow an employee to smoke marijuana during working hours (c) an employer may explore whether the marijuana may be taken in other forms, such as ingesting it in food (d) an employer may be required to consider a modified work schedule or leave of absence during the period of treatment 24. In French v Selkin Logging Ltd the human rights tribunal found that accommodating French’s medical use of marijuana at his safety sensitive workplace constituted undue hardship because: (a) French was only pretending to have a disability so his use of marijuana at work was purely recreational (b) other employees were complaining about French’s frequent use of marijuana at work as they believed it was a safety hazard (c) French did not have medical authorization for using marijuana and did not advise his employer that he was using an impairing substance at work

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(d) French was in a motor vehicle accident that was caused by his impairment at work 25. Currently the test in Ontario for establishing a prima facie case of discrimination based on family status in a child care situation is based on: (a) the four-part Johnstone test (which includes asking whether the employee made reasonable efforts to self-accommodate – i.e. to look for suitable child care – before making the request for accommodation) (b) the Health Sciences test (which requires asking whether the employer’s rule or requirement “significantly interferes with a substantial family obligation”) (c) the Misetich test (which rejects asking whether the employee made efforts to selfaccommodate first) (d) the Devaney test (which requires the employer to allow the employee to work from home) 26. According to the OHRC Policy on drug and alcohol testing 2016, the components of a justifiable testing policy include all of the following except: (a) the policy is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored (b) the policy allows the employer to terminate an employee but only after that employee has tested positive for drugs or alcohol at least twice within a six-month time period (c) testing is used as part of a larger assessment of drug or alcohol addiction (e.g. including an employee assistance program) (d) testing is used only in limited circumstances, such as where there is reason to suspect impairment 27. In Stewart v Elk Valley Coal Corp the Supreme Court of Canada rejected the employee’s argument that his addiction prevented him from disclosing his cocaine use to his employer because: (a) drug addicts still retain the capacity to disclose (b) based on the evidence in this case it found that Stewart retained the capacity to disclose (c) employers in safety sensitive workplaces are entitled to have zero tolerance policies for substance abuse (d) the employer’s alcohol and drug policy offered support and assistance with rehabilitation to employees who proactively self-disclose their addiction

True or False 1. The Human Rights Code is usually enforced by individuals filing applications, and the Employment Standards Act is usually enforced by individuals filing complaints.

TRUE/FALSE

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2. Arbitrators appointed under collective agreements make the majority of human rights decisions in Ontario.

TRUE/FALSE 3. “Harassment” under Ontario’s Human Rights Code usually requires a course of vexatious comment or conduct, rather than a single incident.

TRUE/FALSE 4. Under Ontario’s Human Rights Code, health and safety is one of the factors considered in determining undue hardship.

TRUE/FALSE 5. In Ontario, courts are more likely to uphold an employer’s alcohol- and drug-testing policy if it states that such tests are carried out on a random basis.

TRUE/FALSE 6. As part of its duty to accommodate, an employer may be required to create a new position by “cobbling together” a number of less demanding tasks performed by other employees.

TRUE/FALSE 7. Under the Ontario Human Rights Code, the employer must accommodate an employee up to the point of undue hardship to perform both the essential and the nonessential functions of the job.

TRUE/FALSE 8. Courts and tribunals generally do not require small employers to accommodate employees who require time off from work for religious observance.

TRUE/FALSE 9. Clients or customers who act in a discriminatory or harassing way are not liable under the Human Rights Code.

TRUE/FALSE 10. Ontario’s Human Rights Code prohibits employers from terminating the employment of employees for poor attendance where their absences relate to substance abuse.

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TRUE/FALSE 11. To comply with Ontario’s Human Rights Code prohibiting discrimination based on creed, employers must give employees who are not of the (western) Christian faith at least two paid days off for their religious observances annually.

TRUE/FALSE 12. In the Health Sciences Association of BC v Campbell River case, the court decided that an employer has a duty to accommodate wherever its rule or requirement interferes with an employee’s family obligations.

TRUE/FALSE 13. An employer is only responsible for harassment of which it is aware.

TRUE/FALSE 14. The Human Rights Legal Support Centre provides free legal advice to applicants but not to respondents in a human rights action.

TRUE/FALSE 15. An employer should only investigate a complaint of harassment with the consent of the individual being harassed.

TRUE/FALSE 16. In unionized workplaces, unions, as well as employers and employees, have a legal obligation to participate in the accommodation process.

TRUE/FALSE 17. The duty to accommodate contains both procedural and substantive elements but the substantive element is the most important.

TRUE/FALSE 18. For a workplace to be considered “poisoned,” it is not necessary that the employee making the claim be the target of the insulting or degrading comments or actions.

TRUE/FALSE

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19. An employee can only pursue an action for discrimination or harassment in the courts if it is tied to a civil lawsuit such as a wrongful dismissal action.

TRUE/FALSE 20. Like Ontario’s Human Rights Code, the Accessibility for Ontarians with Disabilities Act, 2005 is based on a complaint-driven enforcement model.

TRUE/FALSE 21. Under the Accessibility for Ontarians with Disabilities Act, 2005, employers with 25 or more employees are required to develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

TRUE/FALSE 22. If an employer can show that an accommodation would result in undue hardship, the person with the disability should be given the option of providing or paying for that portion of the accommodation that results in undue hardship.

TRUE/FALSE 23. Unless an employer can show that accommodation would result in undue hardship, there is no limit to an employee’s right to accommodation.

TRUE/FALSE 24. An employer’s duty to accommodate only applies to accommodating employees to be able to perform their own position, not to accommodate them in another position within the workplace.

TRUE/FALSE 25. Sonja has just told her employer that she has a drug addiction problem and medical documentation provided by her physician confirms this. As part of its duty to accommodate, her employer must pay for the costs of a rehabilitation program unless doing so would result in undue hardship.

TRUE/FALSE 26. Sherona asks her employer to accommodate her need for a flexible work schedule while she is going through fertility treatments. Her employer may accommodate her if

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it wishes but it is not legally obliged to do so because Ontario’s human rights law (on the protected ground of “sex”) only protects employees who are already pregnant.

TRUE/FALSE 27. In Stewart v Elk Valley Coal Corp the Supreme Court of Canada rejected the previously widely accepted principle that “denial” is an inherent part of the disease of addiction by finding that in this situation, Stewart’s addiction did not prevent him from disclosing his cocaine use to his employer as required by the employer’s policy.

TRUE/FALSE 28. Ella is being harassed at work based on the fact that she stutters and her employer refuses to do anything about it. In this situation Ella may either file an application with the Human Rights Tribunal (based on the protected ground of “disability) or file a harassment complaint with the Ministry of Labour under the Occupational Health and Safety Act but she may not do both.

TRUE/FALSE 29. Anand, a manager, is having a rough day and he uncharacteristically snaps at Thea when she asks what appears to him to be a silly question. Even though Thea reports to Anand and is really hurt by his sarcastic response to her question, this incident probably would not be considered harassment.

TRUE/FALSE

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Chapter 6: Equity in the Workplace Multiple choice 1. Ontario’s Pay Equity Act applies to all provincially regulated private sector employers that have: (a) 10 or more employees (b) 20 or more employees (c) 50 or more employees (d) 100 or more employee 2. The Federal Contractors Program applies to: (a) companies with at least 50 employees who bid on federal contracts worth $100,000 or more (b) companies with at least 100 employees who bid on federal contracts worth $100,000 or more (c) companies with at least 100 employees who bid on federal contracts worth at least $1,000,000 (d) companies with at least 200 employees who bid on federal contracts worth at least $1,200,000 3. Generally speaking, under Ontario’s Pay Equity Act, a job class is considered “female-dominated” when: (a) 50% of the incumbents are female (b) 60% of the incumbents are female (c) 70% of the incumbents are female (d) none of the above 4. Under Ontario’s Pay Equity Act, an employer that has three bargaining units, as well as non-union employees, in its establishment is allowed to have: (a) two pay equity plans (b) three pay equity plans (c) four pay equity plans (d) none of the above 5. Under Ontario’s Pay Equity Act, there is a cap on the amount of pay equity adjustments that a Part II private sector employer who prepared a pay equity plan has to make each year. This cap is equal to: (a) 1% of the employer’s annual payroll (b) 2% of the employer’s annual payroll (c) 3% of the employer’s annual payroll

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(d) 5% of the employer’s annual payroll 6. Ontario’s “equal pay for equal work” requirements are found in the: (a) Pay Equity Act (b) Employment Standards Act (c) Employment Equity Act (d) Human Rights Code 7. Ontario’s Pay Equity Act applies to all public sector employers in Ontario as long as they have: (a) 10 or more employees (b) 50 or more employees (c) 100 or more employees (d) none of the above 8. Which one of the following is NOT true of jobs that are part of the same female job class? (a) the jobs have similar qualifications (b) the jobs are filled by similar recruiting procedures (c) the jobs have the same compensation schedule or range (d) the jobs only have female incumbents 9. “Job rate” is defined as: (a) the lowest rate of pay (b) the top rate of pay (c) the average rate of pay (d) the median rate of pay 10. Which one of the following is NOT required of employers covered by the Federal Contractors Program? (a) to collect data on its workforce composition (b) to complete a workforce analysis (c) to meet hiring quotas established by the federal government (d) to make reasonable progress and reasonable efforts toward achieving employment equity 11. Which one of the following is a true statement concerning Ontario’s gender-based equal pay for equal work requirement? (a) It only applies where the employer intends to discriminate between male and female employees

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(b) Enforcement is complaint based (c) It requires employers to pay women and men at the same rate if they are performing substantially the same kind of work, in the same establishment (d) It is covered by Ontario’s Pay Equity Act 12. Compared with other countries within the Organization for Economic Cooperation and Development (the “OECD), Canada’s current gender wage gap is: (a) much less than the OECD average (b) slightly less than the OECD average (c) approximately the same as the OECD average (d) larger than the OECD average 13. To comply with Ontario’s pay equity legislation, which one of the following statements is not true concerning the job evaluation system used to compare jobs? (a) it must be gender neutral by not undervaluing aspects of typically femaledominated jobs (b) it must base job value on the four factors of skill, effort, responsibility and working conditions (c) employers may choose any sub-factors they want, as long as those sub-factors are gender-neutral (d) employees in both male and female job classes can file a complaint that their work is undervalued 14. The process of achieving pay equity involves a number of steps. What is the step that immediately follows after the employer places jobs into job classes? (a) determining the gender predominance of each job class (b) determining the value of each job class (c) gathering job content information for each job class (d) conducting comparisons between female and male job classes 15. Under the job evaluation method called “the point factor system”, the employer decides on a total number of points and then attributes points to each factor and subfactor chosen, based on the weight given to it. For example, if the total number of points is 1,000, and skill is weighted at 30% of total value (e.g. 10% interpersonal skills, 8% knowledge, and 12% problem-solving), the factor of “knowledge” would be worth: (a) 30 points (b) 80 points (c) 100 points (d) 120 points

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16. Under Ontario’s Pay Equity Act, different pay levels are permitted between comparable male and female-dominated jobs if the pay differential results from one of a list of factors. Which one of the following is NOT one of those acceptable factors? (a) a documented gender neutral seniority system (b) a senior executive exception (i.e. where the male-dominated job class is a senior executive position that is typically filled internationally) (c) a temporary training or development assignment (d) a merit pay system

True or False 1. Ontario’s Pay Equity Act is aimed at preventing wage discrimination against women and visible minorities.

TRUE/FALSE 2. In Ontario, there is no statutory requirement to implement an employment equity program.

TRUE/FALSE 3. The federal Employment Equity Act covers four designated groups: women, disabled people, visible minorities, and people over the age of 65.

TRUE/FALSE 4. Ontario’s “equal pay for equal work” and “equal pay for work of equal value” provisions require job comparisons based on the same four factors—skill, effort, responsibility, and working conditions.

TRUE/FALSE 5. Where more than one comparable male job is found using the direct job-to-job comparison method, pay equity is achieved when the female job rate at least equals the average job rate of the comparable male jobs.

TRUE/FALSE 6. Under Ontario’s Pay Equity Act, only female employees may file a complaint with the Pay Equity Commission.

TRUE/FALSE

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7. Under Ontario’s Pay Equity Act, a private sector employer who is unable to find a male comparator for any one of its female-dominated jobs using the direct job-to-job comparison method must then use the proportional value comparison method to achieve pay equity for that job.

TRUE/FALSE 8. Under Ontario’s Pay Equity Act, the proxy comparison method of making job comparisons is required in both the private and the public sectors.

TRUE/FALSE 9. Under Ontario’s Pay Equity Act, where a male job class is paid more than an equally valued female job class, the employer may correct the inequity by reducing the job rate of the male job class.

TRUE/FALSE 10. Under Ontario’s Pay Equity Act, once pay equity is achieved, subsequent pay differentials that result from differences in bargaining strength are allowable.

TRUE/FALSE 11. The purpose of Ontario’s Pay Equity Act is to ensure that all employees are paid based on the value of their job to the employer.

TRUE/FALSE 12. Employers with 10 or more employees who began operating in Ontario after January 1, 1988 are required to comply with the Pay Equity Act immediately; there is no phase-in period.

TRUE/FALSE 13. A gender-neutral job evaluation system is one that recognizes commonly overlooked features of work typically performed by women, such as multi-tasking.

TRUE/FALSE 14. There is no minimum number of jobs in a job class; a single position may constitute a job class.

TRUE/FALSE

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15. As long as the top rate of pay is the same for the female-dominated job class and its male comparator group, the Pay Equity Act does NOT require that the number of steps required to achieve that job rate be the same.

TRUE/FALSE 16. Employers covered by the Federal Contractors Program do not have to report their workforce statistics publicly.

TRUE/FALSE 17. Ontario’s Pay Equity Act basically sets out two separate pay equity processes: one for employers that had 100 or more employees as of December 31, 2000 and one for those that did not.

TRUE/FALSE 18. After employers place all jobs into job classes the next step is to determine the gender predominance of those job classes.

TRUE/FALSE 19. As long as an employer uses the four legislated factors of skill, effort, responsibility, and working conditions in making its job comparisons, it may adopt any sub-factors, and give those sub-factors any weight, that it chooses.

TRUE/FALSE 20. In a unionized environment, employers and unions are prohibited from agreeing to terms that, if implemented, would mean that the minimum requirements of the Pay Equity Act are not met.

TRUE/FALSE 21.The proportional value comparison method must be used by all Part I employers.

TRUE/FALSE

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Chapter 7: Employment Standards Act Multiple choice 1. Which of the following groups of workers may refuse to work on Sundays under Ontario’s Employment Standards Act? (a) homeworkers (b) retail workers hired before September 4, 2001 (c) workers in continuous operations (d) students under 18 years of age 2. Under Ontario’s ESA, an employer should generally keep employee records (other than vacation-related records) for at least: (a) one year after the events they record (b) two years after the events they record (c) three years after the events they record (d) five years after the events they record 3. An agreement to vary from legislated hours of work requirements requires the approval of the Director of Employment Standards if the weekly hours will exceed: (a) 40 hours (b) 44 hours (c) 48 hours (d) 60 hours 4. Even with a signed authorization from the employee, an employer cannot make a deduction from an employee’s wages to cover a cash shortage unless: (a) the employee has sole access and control over the cash in question (b) the dollar amount of the cash is less than $500 (c) the employee is a supervisor or managerial employee (d) all of the above 5. Joe earns $15 per hour. Under Ontario’s ESA overtime provisions, his overtime premium pay would be: (a) $15.00 per hour (b) $20 per hour (c) $22.50 per hour (d) $30 per hour 6. To qualify for a paid public holiday in Ontario, employees must: (a) have worked for that employer at least three months before the public holiday

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(b) have worked for that employer at least 12 days in the preceding four weeks before the public holiday (c) have worked their entire shift on their regularly scheduled days of work immediately before and after the public holiday, unless they had reasonable cause for not working (d) all of the above 7. Statutory parental leave for the biological mother is: (a) up to 17 weeks in length (b) up to 35 weeks in length (c) up to 37 weeks in length (d) up to 61 weeks in length 8. To qualify for family medical leave under Ontario’s ESA, an employee must: (a) work for an employer who has at least 50 employees in Ontario (b) have worked at least three months for the employer (c) be eligible to receive compassionate care benefits under the federal employment insurance legislation (d) none of the above 9. If Sadie started work on January 1, 2019, under Ontario’s ESA, her employer must allow her to take her statutory vacation time before: (a) January 1, 2020 (b) June 30, 2020 (c) November 1, 2020 (d) January 1, 2021 10. To calculate public holiday pay, the employer adds all regular wages and vacation pay that is owing to the employee in the four workweeks ending just before the workweek with the public holiday and divides that number by: (a) 1.5 (b) 5 (c) 10 (d) 20 11. Where a valid “averaging hours” agreement is in place, an employee who works 48 hours in one week and 40 hours in the next is entitled to receive overtime premium pay for: (a) 0 hours (b) 4 hours

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(c) 8 hours (d) none of the above 12. The legislated minimum wage for homeworkers is: (a) the same as the general minimum wage (b) slightly higher than the general minimum wage (c) slightly lower than the general minimum wage (d) the same as the rate for full-time students 13. Under the ESA, the three-hour rule means that generally an eligible employee who comes into work as scheduled but is sent home before working at least three hours is entitled to receive: (a) three hours’ pay at his or her regular rate (b) the greater of three hours’ pay at minimum wage or his or her regular wage for the time worked (c) 1.5 times his or her regular wage for the time worked (d) three hours’ pay at their regular rate (or their actual worked rate for the time worked if higher, plus their regular rate for the balance of the three hours) 14. Under the ESA, overtime premium pay must be paid in Ontario after: (a) 37.5 hours per week (b) 40 hours per week (c) 44 hours per week (d) 48 hours per week 15. Under the ESA, an employee who works 50 hours in a week and who agrees to take time off instead of receiving overtime premium pay for that overtime is entitled to: (a) 3 hours of paid time off in lieu of overtime pay (b) 6 hours of paid time off in lieu of overtime pay (c) 9 hours of paid time off in lieu of overtime pay (d) 15 hours of paid time off in lieu of overtime pay 16. Under Ontario’s ESA, an employee is entitled to receive three weeks’ vacation time after: (a) 5 years of service (b) 10 years of service (c) 15 years of service (d) none of the above 17. Which one of the following days is NOT one of the nine public holidays set out in Ontario’s ESA?

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(a) Boxing Day (b) Canada Day (c) Labour Day (d) Remembrance Day 18. To qualify for pregnancy leave under Ontario’s ESA, a pregnant employee must have: (a) worked at least 13 weeks before the expected due date (b) been hired at least 13 weeks before the expected due date (c) worked at least 17 weeks before the expected due date (d) been hired at least 17 weeks before the expected due date 19. Ontario’s family responsibility leave provisions entitle employees to up to ____ unpaid days of leave per calendar year because of an illness, injury, medical emergency, or urgent matter relating to certain relatives: (a) five (b) two (c) ten (d) three 20. Which of the following types of employees are NOT covered by any of the provisions of Ontario’s ESA? (a) professionals (b) police officers (c) high school or college students performing work in a work-experience program (d) students under 18 21. In which of the following circumstances can the employer NOT make deductions from an employee’s wages under Ontario’s ESA? (a) where there is a court order authorizing such payment (b) for Canada Pension Plan contributions (c) where the employee has signed a written statement authorizing the deduction for losses caused by faulty work (d) none of the above 22. Under Ontario’s ESA, an employer and employee may verbally agree that instead of being given a 30-minute eating period after five consecutive hours of work, the employee may: (a) forgo an eating period (b) be given two eating periods that together total at least 30 minutes

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(c) take a coffee break instead (d) none of the above 23. Under Ontario’s ESA, the time limit for filing a claim against an employer for failure to provide wage statements is: (a) 6 months (b) 12 months (c) two years (d) none of the above 24. Under Ontario’s ESA, military reservists are entitled to unpaid leave for the time they are deployed if they have worked for their employer for at least: (a) 6 consecutive months (b) 9 consecutive months (c) 12 consecutive months (d) 24 consecutive months 25. Under Ontario’s ESA, organ donor leave is for: (a) 13 weeks (b) 13 weeks, with the possibility of extension for another 13 weeks (c) 17 weeks (d) 17 weeks, with the possibility of extension for 13 weeks 26. Under Ontario’s ESA, an adoptive mother is entitled to receive a total of: (a) 17 weeks’ leave (b) 37 weeks’ leave (c) 52 weeks’ leave (d) 63 weeks’ leave 27. Beatrice works 40 hours per week and earns $1,000 each week. Assuming she works her regularly scheduled day before and after the next public holiday, how much public holiday pay will she be entitled to receive for that day? (a) $50 (b) $100 (c) $150 (d) $200 28. Janette, a telemarketer, works 46 hours this week for her employer, Ace Co. Her employment contract is silent concerning overtime pay. Under the ESA, which one of the following is true?

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(a) Janette must receive at least two hours’ pay at the overtime rate of pay (b) Ace Co. needs to get prior approval from the Ministry of Labour before allowing Janette (or any of its telemarketing employees) to work this many hours in a week (c) as a telemarketer, Janette is not covered by overtime pay requirements (d) none of the above 29. Under Ontario’s ESA, a temporary employment agency may only charge a client a fee for offering permanent employment to one of its temporary agency employees (“temps”) if the offer is made in the first: (a) month of the temporary employee’s assignment with that client (b) 3 months of the temp’s assignment with that client (c) 6 months of the temp’s assignment with that client (d) 12 months of the temp’s assignment with that client 30. Under Ontario’s ESA, bereavement leave is available to employees who work for organizations that regularly employ, in Ontario, at least (a) 10 employees (b) 25 employees (c) 50 employees (d) none of the above 31. Under Ontario’s ESA, an employee is eligible for family medical leave if a qualified medical practitioner certifies that a close relative (or other specified person) is in serious danger of dying within the next: (a) 8 weeks (b) 13 weeks (c) 20 weeks (d) 26 weeks 32. Under Ontario’s ESA, it is illegal for temporary employment agencies to do which of the following? (a) charge their employees a fee for resumé preparation (b) charge a client a fee if that client hires the temporary agency employee at any time during his or her assignment (c) terminate an employee without just cause (d) a and b 33. Under Ontario’s ESA, employees with at least six months’ service can take up to ____ weeks of unpaid leave to provide care or support to a critically ill adult family member. (a) 17 weeks Copyright © 2019 Emond Publications. All rights reserved.

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(b) 26 weeks (c) 37 weeks (d) 52 weeks 34. You work for a medium-sized employer (126 employees) and you have two small children (aged 2 and 3½). Yesterday, your babysitter called around 12:45 p.m., in the middle of your workday, to say that she was ill and would have to go home shortly.

You looked around for your supervisor to explain the situation, but she was at lunch, so you just left a message on her voicemail, telling her you had to leave for the rest of the day. (This is the first day you have taken off since the beginning of the year.)

Under Ontario’s ESA, which of the following is true? (a) even though you did not give proper advance notice, your employer has to pay you for the remainder of the workday (b) your employer does not have to pay you for the remainder of the workday because you left without giving proper advance notice (c) your employer does not have to pay you for the remainder of the workday because the law does not require this leave to be paid (d) your employer does not have to pay you for the remainder of the workday AND you can be disciplined for failing to provide proper advance notice to take this leave 35. Which one of the following employees is covered by Ontario’s general minimum wage provisions: (a) Jessie, aged 19, is a full-time student who works 28 hours a week or less when school is in session (b) Jamey works as a server in a licensed bar (c) Esther works from home as a seamstress (d) Nate works as a fishing guide 36. Adela has agreed to work on a public holiday and receive public holiday pay, plus premium pay, for the 8 hours she will work that day. Her hourly rate is $20 per hour (and therefore in the four weeks before the week of the holiday she earned $3200).

Under Ontario’s ESA, how much is she entitled to receive for working that public holiday? (a) $160 (b) $200 (c) $240 (d) $400 37. There are now additional procedural requirements on employers where employees take a substitute day off for a public holiday. The employer has to provide a written statement setting out all of the following except:

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(a) The amount of holiday pay the employee will receive for the substitute day off (b) The public holiday to be worked (c) The substitution date (d) The date the written statement is provided to the employee 38. Since the passage of Bills 148 and 47, the ESA now provides for ____ statutory leaves of absence. (a) 14 (b) 8 (c) 10 (d) 12 39. How many weeks of pregnancy leave can an employee now take after a still birth or a miscarriage? (a) 3 weeks (b) 6 weeks (c) 12 weeks (d) 17 weeks 40. Domestic or Sexual Violence leave is a separate, standalone leave for victims of domestic or sexual violence. For employees who qualify, this leave is a dual entitlement and employees may claim up to: (a) 5 days and 10 weeks of leave per calendar year (b) 10 days and 10 weeks of leave per calendar year (c) 15 days and15 weeks of leave per calendar year (d) 10 days and 15 weeks of leave per calendar year 41. Under Ontario’s ESA child death leave provisions, employees with at least six months’ service can take an unpaid leave of up to: (a) 37 weeks following the death of their child (b) 52 weeks following the death of their child (c) 78 weeks following the death of their child (d) 104 weeks following the death of their child 42. Melvin works at a gas station performing two separate jobs with two separate rates of pay: he works as a cashier in the service bar (at $14.00 an hour) and as a mechanic’s assistant (for $20.00 an hour). Last week he worked 25 hours as a cashier and the final 25 hours as a mechanic’s assistant. Under Ontario’s ESA, how much overtime pay is Melvin entitled to receive for that week: (a) 6 hours x ($14 x 1.5) = $126

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(b) 6 hours x ($20 x 1.5) = $180 (c) 6 hours x ($17 x 1.5) = $153 (d) 2 x ($20 x 1.5) = $60 43. The maximum amount of compensation that employees can receive under the federal government’s Wage Earner Protection Program (WEPP) for unpaid wages, vacation, termination pay or severance pay is approximately: (a) $2,000 (b) $4,000 (c) $7,000 (d) $20,000

True or False 1. Eating periods do not count toward overtime hours or maximum hours of work.

TRUE/FALSE 2. An employee’s consent to an agreement to vary is presumed to be valid unless an employee challenges it.

TRUE/FALSE 3. Under the ESA, all provincially regulated employers must now provide their employees with paid time off on the third Monday in February.

TRUE/FALSE 4. An employee who decides to return to work from pregnancy or parental leave earlier than previously indicated must provide the employer with at least two weeks’ notice before the new return date.

TRUE/FALSE 5. Under the sick, bereavement, and family responsibility leave provisions, a partial day may be counted as a full day in determining the number of emergency days per year that the employee has taken.

TRUE/FALSE 6. All complaints under Ontario’s ESA must be made within six months of the last violation of the legislation complained of.

TRUE/FALSE

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7. Unionized employees are not covered by Ontario’s ESA. TRUE/FALSE 8. Police officers are not covered by the provisions of the ESA, with the exception of the lie detector provisions.

TRUE/FALSE 9. Most employees in Ontario are entitled to have at least 12 consecutive hours off work each day.

TRUE/FALSE 10. Employees in Ontario can be required to work hours in excess of the statutory maximum hours of work for rush orders that their employer was unprepared for.

TRUE/FALSE 11. An employer can lower an employee’s regular wage to avoid paying overtime premium pay only if it has the employee’s written agreement.

TRUE/FALSE 12. Under the ESA, averaging agreements for overtime purposes cannot be revoked or cancelled before the expiry date unless both the employer and employee agree in writing.

TRUE/FALSE 13. Under the ESA, agreements to work excess hours may be revoked by non-union employees on two weeks’ written notice.

TRUE/FALSE 14. Under Ontario’s ESA, an employer has to pay an employee who is on statutory leave at least one-half of his or her regular wages if the employee is not eligible for employment insurance benefits.

TRUE/FALSE 15. Statutory parental leave is limited to biological parents.

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TRUE/FALSE 16. If a parent returns from pregnancy or parental leave early, he or she gives up the right to take the remainder of the leave unless the employer agrees to it.

TRUE/FALSE 17. Ontario’s family medical leave provisions allow an employee to take up to 8 weeks off in a 20-week period to take care of a gravely ill family member.

TRUE/FALSE 18. Employees who take a statutory leave are entitled to return to the same position or, if the employer chooses, to a comparable position after their leave.

TRUE/FALSE 19. Ontario’s ESA applies to every employee who works in Ontario.

TRUE/FALSE 20. Under Ontario’s ESA, employers are not legally required to provide coffee breaks to their employees.

TRUE/FALSE 21. Under Ontario’s ESA, an employee may be entitled to vacation pay but not vacation time if he or she has worked only a short period of time.

TRUE/FALSE 22. Only periods of active service (i.e., when the employee is actually working) are included in calculating an employee’s entitlement to vacation time.

TRUE/FALSE 23. Under Ontario’s ESA, an employer must provide all employees with a poster that sets out the most important employee rights found in the Act. TRUE/FALSE 24. Under Ontario’s ESA, with the agreement of the Ministry of Labour, an employee may agree to give up vacation time but not vacation pay.

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TRUE/FALSE 25. Under Ontario’s ESA, sick leave is only available to employees who work for organizations that regularly employ at least 50 people in Ontario.

TRUE/FALSE 26. Employees continue to earn credits toward vacation time while on parental leave, but unless the contract of employment specifies otherwise, vacation pay does not accrue during an unpaid leave.

TRUE/FALSE 27. In order to designate a plant shutdown for two weeks in the summer as vacation time, the employer requires the employee’s agreement in writing.

TRUE/FALSE 28. Under the ESA, the normal rule is that an employee may agree, but cannot be required, to work on a public holiday that falls on a regular working day.

TRUE/FALSE 29. An employee who was on probation at the start of a pregnancy or parental leave may be required to complete her probationary period after returning to work from the leave.

TRUE/FALSE 30. Under Ontario’s ESA, part-time employees are not eligible for family responsibility leave.

TRUE/FALSE 31. Most statutory leaves under the ESA (e.g., pregnancy, parental, and family medical leaves) are unpaid by the employer.

TRUE/FALSE 32. An employee whose wages are based on commission is not covered by Ontario’s minimum wage requirements.

TRUE/FALSE

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33. Employees who are exempt from overtime pay under the ESA may still be entitled to overtime pay under their employment contract or an office policy.

TRUE/FALSE 34. The federal Wage Earner Protection Program does not cover statutory termination or severance pay.

TRUE/FALSE 35. Under the Regulatory Modernization Act, 2007, Ontario government regulators can now share compliance and complaint-related information, but only if the ministries involved have the same, or similar, investigative rules.

TRUE/FALSE 36. In Ontario, class action lawsuits must be “certified” by a judge before they are allowed to proceed.

TRUE/FALSE 37. Class action lawsuits are only appropriate where there is a common issue of law or fact involved.

TRUE/FALSE 38. Commissioned salespeople who work outside the workplace but sell on a particular “route” are NOT covered by the minimum wage requirements under the ESA. TRUE/FALSE 39. High earning employees who exercise considerable autonomy over their own work are exempt from the ESA’s overtime pay requirements.

TRUE/FALSE 40. Every employee who works in Ontario is entitled to receive Family Day off.

TRUE/FALSE 41. Managers whose job duties are entirely managerial or supervisory in nature are not covered by any of the standards in Ontario’s ESA. TRUE/FALSE

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42. To be eligible for vacation time under Ontario’s ESA, an employee must have worked at least 10 consecutive months for his or her employer.

TRUE/FALSE 43. Fatima was hired 15 weeks before her expected due date. Soon after starting her new job, however, she has to go off on sick leave for five weeks. Fatima is eligible for pregnancy leave under Ontario’s ESA. TRUE/FALSE 44. To be eligible for family caregiver leave, an employee must provide a certificate from a health practitioner that a family member (or someone who is like family) has a serious medical condition. However, this certificate does not have to be from a physician.

TRUE/FALSE 45. Employees who qualify for critical illness leave may take up to 52 weeks of unpaid leave to provide care or support to a critically ill child whose life is at risk because of illness or injury.

TRUE/FALSE 46. A client organization may be liable to pay a temporary worker his or her unpaid wages, even if it has already paid the temporary agency for the temporary worker’s services.

TRUE/FALSE 47. There is no longer a $10,000 cap on the amount that an employer can be ordered to pay to an employee by the Ministry of Labour for amounts owing under the ESA. TRUE/FALSE 48. In most circumstances, an employment standards officer will only be assigned to a complaint after the employee has contacted, or tried to contact, his or her employer about the issue being complained about.

TRUE/FALSE 49. If an employee decides to start a court action after filing a claim for unpaid wages with the Ministry of Labour, the employee must withdraw the claim within 2 weeks of filing, or the court action will be barred.

TRUE/FALSE

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50. Unpaid internships are only allowed under Ontario’s ESA where students perform work under an approved program by a secondary school, college, or university.

TRUE/FALSE 51. Subject to certain exceptions, currently the equal pay for equal work provisions of Ontario’s ESA prohibit pay differences based on two grounds: gender and employment status.

TRUE/FALSE 52. Natasha’s shift is cancelled 3 hours before it is to begin due to a power failure. In this situation Natasha is entitled to three hours pay at her regular rate.

TRUE/FALSE 53. Mischa, who works in Mississauga, is soon going to take parental leave. Assuming he qualifies for Employment Insurance benefits, he has two basic choices: subject to a legislated benefits ceiling, he may choose to receive either (i) the standard parental benefit (35 weeks of benefits for up to 12 months) at a rate of 55% of his average weekly earnings OR (ii) the extended parental benefit (61 weeks of benefits over 18 months) at 33% of his average weekly earnings.

TRUE/FALSE 54. Noelle needs to take three days off due to a medical condition. Under Ontario’s ESA her employer cannot require her to provide a doctor’s note to support this leave.

TRUE/FALSE 55. Employees with at least six months of service can take up to 104 weeks of unpaid leave following the death of a child or on the crime-related disappearance of a child.

TRUE/FALSE 56. Cornell is a temporary help agency employee whose 6-month assignment is ending unexpectedly after only 2 months. The agency who employs him has no other assignment for him at the moment. Under Ontario’s ESA, in this situation the temporary agency must provide Cornell with at least 2 weeks’ notice or pay in lieu of notice of the early end of his assignment.

TRUE/FALSE

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Chapters 8 and 9: Occupational Health and Safety Act and Workplace Safety and Insurance Act (Ontario) Multiple choice 1. Ontario’s Occupational Health and Safety Act (OHSA) generally requires a single health and safety representative where: (a) the workplace has 6 or more workers (b) the workplace has 1 to 19 workers (c) the workplace has 6 to 19 workers (d) the workplace has 20 or more workers 2. Where a joint health and safety committee is required by law, which of the following is responsible for establishing it? (a) the Ministry of Labour (b) the employer and union jointly (c) the employer (d) the employer and employees jointly 3. Material safety data sheets expire every: (a) two years (b) three years (c) four years (d) five years 4. An employer must provide a written report of a critical injury or fatality to the Ministry of Labour within: (a) 24 hours of the workplace accident (b) 48 hours of the workplace accident (c) 72 hours of the workplace accident (d) seven days of the workplace accident 5. The right to stop work that exists under Ontario’s OHSA may be initiated by: (a) only a certified worker member of the joint health and safety committee (b) either a certified worker member or a certified management member of the joint health and safety committee (c) any member of the joint health and safety committee (d) any worker who believes that the workplace presents a health and safety risk to its workers 6. Under Ontario’s OHSA, a workplace with 35 workers:

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(a) does not require a joint health and safety committee (b) requires a joint health and safety committee of at least two people (c) requires a joint health and safety committee of at least two people, including a certified management representative and a certified worker representative (d) requires a joint health and safety committee of at least four people, including a certified management representative and a certified worker representative 7. Loss of earnings benefits under the Workplace Safety and Insurance Act, 1997 (WSIA) are: (a) 75% of an injured worker’s net earnings (b) 80% of an injured worker’s net earnings (c) 85% of an injured worker’s net earnings (d) 90% of an injured worker’s net earnings 8. Under Ontario’s WSIA, an employer must continue benefit coverage for an injured worker for up to: (a) 6 months after the date of injury (b) 12 months after the date of injury (c) indefinitely until the injured worker is declared fit for work (d) none of the above 9. Under Ontario’s WSIA, the Workplace Safety and Insurance Board (WSIB) must begin setting aside money to provide an injured worker with a retirement pension after a worker has received loss of earnings benefits for: (a) 3 consecutive months (b) 6 consecutive months (c) 12 consecutive months (d) 24 consecutive months 10. Employers who regularly employ 20 or more workers have a statutory obligation under the WSIA to reinstate an injured worker who has worked continuously for that employer for at least: (a) six months (b) one year (c) two years (d) none of the above 11. The workplace safety and insurance system is funded by: (a) employers only (b) employers and employees jointly

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(c) employers and general taxes (d) the Ministry of Labour 12. Under the Smoke-Free Ontario Act, which of the following is NOT true? (a) employers must advise all workers that smoking is prohibited in the enclosed work environment (b) employers must remove ashtrays or similar equipment from the workplace (c) employers must post “no smoking” signs at all entrances (d) employers must provide designated smoking rooms 13. The health and safety provisions under Canada’s Criminal Code apply to: (a) both federally and provincially regulated employers (b) federally regulated employers only (c) provincially regulated employers only (d) employees of the federal government only 14. Effective July 1, 2014, employers are required to provide workers and supervisors with a basic understanding of the OHSA. Which one of the following is true? (a) this training is only required for workers in safety-sensitive jobs (b) this training is required for both full-time and part-time workers, but not seasonal workers (c) for workers, this training must be completed “as soon as practicable” after being hired (d) for supervisors, this training must be completed “as soon as practicable” after being hired 15. Which one of the following statements is true? (a) a Ministry of Labour inspector may file a reprisal complaint on behalf of an employee, with or without that employee’s consent (b) responsibility for prevention of accidents has been transferred from the Workplace Safety and Insurance Board to the Ministry of Labour (c) if a JHSC fails to reach consensus on a recommendation, the two co-chairs of a JHSC may make a unilateral written recommendation to an employer. As long as it is their joint recommendation, the employer must respond to it. (d) the Office of the Employer Adviser may advise employers with under 125 employees on health and safety matters, as well as on WSIB matters 16. Which of the following is NOT true during the first stage of a work refusal? (a) the worker must have “reasonable grounds” for believing that the work is unsafe (b) the worker must be paid

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(c) the worker must remain in a safe place near the workstation until the investigation is complete (d) the worker must immediately tell the supervisor that he or she is refusing to work and state the reasons 17. Which of the following is not covered by Ontario’s OHSA workplace harassment provisions? (a) a negative performance review by an employee’s manager (b) unwelcome sexual advances by an employee’s manager (c) ongoing demeaning jokes amongst co-workers (d) the circulating of offensive materials 18. In 2014, the Workplace Safety and Insurance Appeals Tribunal found that denying an employee benefits for mental stress unless the stress arose from a “sudden and unexpected traumatic event” was unlawful. On which of the following did it base its decision? (a) the Canadian Charter of Rights and Freedoms (s 15) (b) Ontario’s Human Rights Code (c) the Employment Standards Act (d) the Employment Equity Act 19. An employer is not required to report a workplace accident to the WSIB: (a) where the injured worker requires modified work at regular pay for no more than seven calendar days after the accident (b) where the injured worker seeks medical care but is not hospitalized for the injury (c) where the injured worker requires modified work for no more than five calendar days after the accident (d) where the injured worker requires modified work for no more than seven calendar days after the accident 20. Which one of the following industries is NOT compulsorily covered by the WSIA? (a) theatres (b) construction sites (c) hospitals (d) insurance companies 21. The requirement to have a policy related to workplace violence is found in Ontario’s: (a) Occupational Health and Safety Act (b) Employment Standards Act (c) Workplace Safety and Insurance Act

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(d) Human Rights Code 22. Which one of the following workers is not covered by Ontario’s OHSA: (a) a temporary help agency employee (b) an unpaid student intern (c) an independent contractor (d) a live-in nanny 23. Subject to certain limited exceptions, under Ontario’s OHSA employers are specifically prohibited from requiring workers to wear: (a) tight fitting clothing (b) poor fitting head wear (c) high heeled footwear (d) uncomfortable ear phones 24. With respect to evaluating hazards, a poor fit between a worker and his or her work station is an example of which type of factor? (a) an ergonomic factor (b) a human factor (c) a situational factor (d) an environmental factor 25. Which one of the following is not true when comparing WHMIS 2015 (GHS) to the older WHMIS system: (a) it changes the role of suppliers, employers and workers (b) it affects how chemicals are classified (c) it affects supplier labeling requirements (d) it makes hazard classification criteria more comprehensive 26. Which one of the following statements related to investigations of workplace harassment complaints under Ontario’s OHSA is true: (a) as a rule, such investigations should be completed with 120 days of the complaint (b) the alleged harasser should not be in a position of authority over the investigator (c) only complaints, not mere rumours, of harassment should be investigated (d) the investigator’s questions to witnesses should be kept vague so the identity of the parties remains confidential 27. Maximum fines for corporations under Ontario’s OHSA are now: (a) $100,000 (b) $1,000,000

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(c) $1,500,000 (d) $10,000,000 28. Under Ontario’s WSIA, which one of the following statements is true with respect to entitlement to benefits for mental stress arising out of and in the course of employment? (a) workers are entitled to WSIA benefits for traumatic mental stress only (b) workers are entitled to WSIA benefits for chronic mental stress only (c) workers are entitled to WSIA benefits for mental stress caused by an employer’s management decisions (d) workers may be entitled to WSIA benefits for both traumatic and chronic mental stress 29. For mental stress to be compensable under the WSIA, three conditions must be met.

Which one of the following is NOT one of those three conditions? (a) an appropriate regulated health professional must provide a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (b) the worker must have experienced a substantial work-related stressor (c) the employer did not respond appropriately to the work-related stressor (d) the work-related stressor(s) is the predominant cause of the appropriately diagnosed mental stress injury 30. Most Work Reintegration Programs do not exceed: (a) 1 year in duration (b) 2 years in duration (c) 3 years in duration (d) 4 years in duration

True or False 1. Ontario’s health and safety legislation applies to all workplaces in Ontario, regardless of their size or industry.

TRUE/FALSE 2. At least one member of every joint health and safety committee must be “certified.”

TRUE/FALSE 3. Under Ontario’s health and safety legislation, the joint health and safety committee must meet at least once every three months.

TRUE/FALSE

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4. Under Ontario’s health and safety legislation, the legal onus is on the Ministry of Labour to prove that the employer did not exercise “due diligence” in preventing the workplace accident.

TRUE/FALSE 5. At the first stage of a work refusal, Ontario’s OHSA permits an employee to refuse work but only when he or she has reasonable grounds for believing that the work is unsafe.

TRUE/FALSE 6. An employer may ask an employee to perform work that another employee has previously refused for safety reasons as long as the second employee is a member of the joint health and safety committee.

TRUE/FALSE 7. Ontario employers should use Form 7 to notify both the Ministry of Labour and the Workplace Safety and Insurance Board of a workplace injury.

TRUE/FALSE 8. Workers who travel on business are usually covered by WSIA benefits for injuries suffered while participating in predictable activities such as dining in a hotel.

TRUE/FALSE 9. An employee who is injured at work as a result of his or her own deliberate recklessness is still entitled to receive workplace safety and insurance benefits if the injury results in death or serious impairment.

TRUE/FALSE 10. The older a worker is when he or she is permanently impaired through a work-related injury, the greater the amount of non-economic loss benefits that worker will be entitled to.

TRUE/FALSE 11. The statutory obligation to re-employ an injured worker under Ontario’s WSIA ends when the employee reaches age 65.

TRUE/FALSE

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12. Under Ontario’s WSIA, the WSIB pays compensation to an injured worker starting on the day after the accident.

TRUE/FALSE 13. The WSIA system is funded entirely by employers.

TRUE/FALSE 14. Ontario employees who are covered by the WSIA system may only sue their employer for a work-related injury if that injury was caused by the employer’s gross negligence.

TRUE/FALSE 15. Under the OHSA, a “supervisor” is defined as someone who has disciplinary authority over other workers.

TRUE/FALSE 16. Under the Bill 168 amendments to the OHSA, employers are required to address domestic violence when it is aware, or ought reasonably to be aware, that domestic violence may occur in the workplace.

TRUE/FALSE 17. Although the 2004 amendments to Canada’s Criminal Code that impose heightened health and safety duties on organizations were designed to hold senior management more accountable for health and safety crimes, lower-level supervisors may face the greatest risk of being charged personally.

TRUE/FALSE 18. Ontario’s health and safety legislation specifically requires an employer to prepare a pandemic plan that sets out the measures to be taken in case of a future pandemic.

TRUE/FALSE 19. There is a rebuttable presumption that an employee’s disability arises out of and in the course of employment.

TRUE/FALSE

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20. Severe stress and depression suffered by an employee as a result of management’s decision to terminate him or her is not compensable under Ontario’s WSIA. TRUE/FALSE 21. Unpaid student interns are no longer covered by the Occupational Health and Safety Act. TRUE/FALSE 22. In Blue Mountain Resorts Limited v Ontario (Labour), the Ontario Court of Appeal found that for a site to constitute a “workplace” for purposes of requiring an employer to report a critical injury or death, there must be some reasonable connection between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the workplace.

TRUE/FALSE 23. “Workplace violence” includes both the exercise and the attempt to exercise physical force, but it does not include merely a verbal threat to exercise physical force.

TRUE/FALSE 24. The right to refuse unsafe work does not apply to workplace harassment.

TRUE/FALSE 25. The Second Injury and Enhancement Fund is available when a pre-existing condition contributes to a work-related accident, increases the severity of the injury, or prolongs a worker’s recovery. Its purpose is to provide the injured worker with a higher level of benefits than he or she would receive otherwise.

TRUE/FALSE 26. The WSIB’s Workwell Program charges a premium rate to employers with a bad accident record or a history of non-compliance with the OHSA that is in addition to surcharges from its experience-rating programs.

TRUE/FALSE 27. A work transition plan is a plan prepared by the WSIB to assist an injured worker in returning to the labour market after a workplace injury. The costs of such a plan are assessed against the Second Injury and Enhancement Fund.

TRUE/FALSE

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28. It is illegal for employers to recover any part of their WSIB premiums from workers.

TRUE/FALSE 29. There are three different schemes for monetary benefits under the WSIA. Which benefit system applies depends on when the worker was injured.

TRUE/FALSE 30. Under Ontario’s OHSA, a vehicle can be a “workplace.”

TRUE/FALSE 31. A workplace violence risk assessment must be reassessed at least annually.

TRUE/FALSE 32. Generally speaking, if no other sector-specific regulation applies, a workplace is covered by the Independent Establishments regulation under Ontario’s OHSA. TRUE/FALSE 33. For a quorum to exist at a Joint Health and Safety Committee meeting, members representing both the managerial and the non-managerial members must be present.

TRUE/FALSE 34. Under Ontario’s OHSA, teachers have an unrestricted right to refuse work that they believe to be unsafe.

TRUE/FALSE 35. Under Ontario’s OHSA, a workplace violence policy should address violence from all possible sources, including customers, clients, supervisors, workers, strangers, and domestic/intimate partners.

TRUE/FALSE 36. Under Ontario’s OHSA, workplaces with six or more workers must have a written workplace harassment policy that is posted in a conspicuous place in the workplace.

TRUE/FALSE

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37. Under Ontario’s OHSA, a Ministry inspector who believes that a harassment complaint was not properly investigated may order the employer to retain an impartial, third-party investigator, to conduct an investigation at the Ministry’s expense TRUE/FALSE 38. The limitation period for bringing a prosecution under the OHSA or its regulations is one year from the date of an inspector first becoming aware of the alleged offence.

TRUE/FALSE 39. Over the past several years, the WSIB’s unfunded liability appears to be decreasing.

TRUE/FALSE

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Chapter 10: Privacy Inside and Outside the Workplace Multiple choice 1. Generally speaking, the requirements of the federal Personal Information Protection and Electronic Documents Act (PIPEDA) do NOT apply to personal information held by provincially regulated employers in Ontario that relates to their: (a) suppliers (b) employees (c) independent contractors (d) customers 2. In Centre for Addiction and Mental Health v Ontario Public Service Employees Union, the employer decided to conduct surveillance on one of its employees because it wanted to investigate a report that he was working elsewhere while on paid suspension. Upon his return from suspension, the employee claimed that an aversion to water prevented him from performing alternative work in the kitchen (i.e., washing dishes) that the employer offered to him. However, during the video surveillance he had been captured on tape watering his lawn. In the grievance arbitration related to his subsequent dismissal, the arbitrator decided that the videotaped evidence showing him watering his lawn: (a) was admissible because it was relevant to the issue of his claimed aversion to water (b) was admissible because the video surveillance occurred in a public location where he had little expectation of privacy (c) was inadmissible because the initial reason for the surveillance was different from the ultimate reason for dismissal (d) was inadmissible because the initial reason for the surveillance was not reasonable 3. Effective January 1, 2004, the requirements of PIPEDA applied to all personal information used, collected, or disclosed in Ontario in the course of: (a) commercial activity (b) employment activity (c) both of the above (d) neither of the above 4. Which one of the following provinces has NOT passed privacy legislation that covers general personal information in the private sector? (a) British Columbia (b) Alberta (c) Ontario (d) Quebec

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5. Ontario’s Freedom of Information and Protection of Privacy Act applies to personal information: (a) held by all employers in Ontario (b) of independent contractors only (c) of employees that is sold across provincial borders (d) held by the government only 6. Under PIPEDA, employers are required to respond to employees’ requests for access to personal information being held about them as soon as possible and no later than: (a) 15 days after the request is made (b) 30 days after the request is made (c) 45 days after the request is made (d) 60 days after the request is made 7. Under PIPEDA, an employee’s request for access to personal information held by its employer about her may be denied, at the employer’s discretion, where: (a) the information would reveal personal information about another individual (b) the information is protected by solicitor–client privilege (c) the employer has disclosed the personal information to a government institution for law enforcement or national security reasons and the organization has been instructed to refuse access (d) all of the above 8. In Colwell v Cornerstone Properties Inc., the court found that the Ontario employer’s covert surveillance of its employee: (a) was a contravention of PIPEDA’s requirements and therefore illegal (b) was a contravention of the employee’s common law right to privacy (c) was acceptable because there is no fully developed common law right to privacy (d) constituted constructive dismissal under the common law 9. Under PIPEDA, which one of the following pieces of information would NOT be considered “personal information”? (a) an employee’s ethnicity (b) an employee’s business address (c) an employee’s performance evaluation (d) a videotape of an employee 10. PIPEDA does not cover the personal information of employees in provincially regulated workplaces in Ontario because:

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(a) Ontario has its own general privacy legislation that is comparable to PIPEDA’s requirements and so that statute applies instead (b) PIPEDA’s requirements are being phased in over time and do not yet apply at the provincial level (c) the federal government does not have constitutional authority over employment matters in those workplaces (d) PIPEDA only deals with personal information related to customers, suppliers, and clients 11. Which one of the following is NOT one of the ten fair information principles that PIPEDA is based on? (a) ensuring accountability by appointing a senior person to oversee compliance (b) identifying the purpose of collecting the personal information (c) getting consent from the individual to whom the personal information relates (d) providing automatic access to an individual’s personal information upon request by that individual 12. In Jones v Tsige, the Ontario Court of Appeal set out three elements that a plaintiff must prove to receive damages for the new tort of “intrusion upon seclusion.” Which one of the following is NOT one of those elements? (a) the defendant’s conduct must have been intentional or reckless (b) the defendant must have invaded the plaintiff’s private affairs or concerns (c) the defendant’s invasion of the plaintiff’s private affairs must have been without lawful justification (d) the plaintiff must have regarded the invasion as highly offensive, causing distress, humiliation, or anguish 13. Which one of the following statements related to Ontario’s Personal Health Information Protection Act, 2004 (PHIPA) is NOT true? (a) PHIPA regulates how health information custodians may collect, use, and disclose personal health information (b) PHIPA prohibits disclosure of personal health information to an employee’s supervisor (c) PHIPA only allows disclosure of personal health information where the employee has given express consent or where disclosure is necessary to carry out a statutory or legal duty. (d) Organizations must notify Ontario’s Information and Privacy Commissioner if they have reasonable grounds to believe that personal health information has been stolen 14. In Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 the Supreme Court of Canada was asked to decide whether

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Alberta’s privacy legislation violated the Charter of Rights and Freedoms when it prohibited the videotaping of a picket line during a strike. The court held that: (a) Alberta’s privacy legislation was invalid because it violated the constitutionally protected freedom of expression guarantee (b) Alberta’s privacy legislation violated the Charter’s guarantee of freedom of expression but it was saved by section 1 of the Charter (i.e. it was a reasonable limit to that right in a free and democratic society) (c) Alberta’s privacy legislation is valid because videotaping a picket line is unnecessarily invasive of an individual’s privacy rights (d) Alberta’s privacy legislation is valid because the Canadian Charter of Rights and Freedoms can only override federal, not provincial, legislation 15. In Jones v Tsige, the Ontario Court of Appeal set out three elements that a plaintiff must prove to receive damages for the new tort of “intrusion upon seclusion.” Which one of the following is NOT one of those elements? (a) the defendant’s conduct must have been intentional or reckless (b) the defendant must have invaded the plaintiff’s private affairs or concerns (c) the defendant’s invasion of the plaintiff’s private affairs must have been without lawful justification (d) the plaintiff must have regarded the invasion as highly offensive, causing distress, humiliation, or anguish

True or False 1. Under PIPEDA, the only information that relates to an identifiable individual that is not considered “personal information” is information of the type that would appear on a business card.

TRUE/FALSE 2. The federal privacy commissioner has extensive powers to investigate complaints, but he or she cannot issue binding orders under PIPEDA. TRUE/FALSE 3. Under PIPEDA, an employer who collects personal information from an employee may use that personal information for any purpose that is legal and work-related.

TRUE/FALSE 4. PIPEDA applies to personal information collected, used, or disclosed in the course of commercial activity unless the province in which the organization is located has implemented substantially similar legislation.

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TRUE/FALSE 5. In Ontario, it is illegal for an employer to conduct video surveillance of a non-union employee in the workplace without the employee’s written consent.

TRUE/FALSE 6. In R v Cole, the Supreme Court of Canada held that a person who uses an employerowned computer for personal use at work does not have a reasonable expectation of privacy in that computer, even where such personal use was allowed by the employer.

TRUE/FALSE 7. Under PIPEDA, an organization should never make providing consent to the collection of personal information a precondition for supplying a product or service.

TRUE/FALSE 8. Under PIPEDA, an individual’s consent to the collection or use of his or her personal information must always be in writing.

TRUE/FALSE 9. In Wansink v TELUS Communications Inc., the Federal Court of Appeal held that all of the exceptions that allow for the collection, use, and disclosure of personal information without consent are set out specifically in the Act (PIPEDA).

TRUE/FALSE 10. In unionized workplaces in Ontario, employers are not allowed to conduct video surveillance of employees without their consent.

TRUE/FALSE 11. In deciding whether videotaped evidence obtained outside of working hours is admissible in a grievance hearing, a majority of arbitrators apply the test of “reasonableness” rather than “relevance.”

TRUE/FALSE 12. Ontario has privacy legislation comparable to PIPEDA in only one area: employee health information.

TRUE/FALSE

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13. The collection of biometric data (e.g., using a physical attribute, such as a fingerprint or voice print) from employees has generally been considered contrary to PIPEDA’s principles, regardless of the employer’s motives or the safeguards in place.

TRUE/FALSE 14. A key lesson from the R v Cole decision for employers is that they should have clearly written policies stating, among other things, that an employee’s expectation of privacy on employer-owned devices is limited.

TRUE/FALSE 15. In Eastmond v Canadian Pacific Railway, the Privacy Commissioner and the Federal Court applied the same four-part test to determine the reasonableness of the placement of cameras on the employer’s railway workyards, but they reached opposite conclusions. The Federal Court held that there were less privacy-invasive alternatives that the employer should have pursued.

TRUE/FALSE 16. Ontario is the only province to have privacy legislation that specifically only protects personal health information.

TRUE/FALSE 17. PIPEDA provides for both implied and express forms of consent, depending in the sensitivity of the personal information.

TRUE/FALSE 18. After a serious data security breach, the on-line dating service, Ashley Madison, agreed with the federal Office of the Privacy Commissioner that it will no longer store personal user information indefinitely and information will be deleted at no charge to the user.

TRUE/FALSE 19. Effective November 1, 2018, where there has been a data security breach that creates a “real risk of significant harm” to any individual, the organization must keep records of the breach and notify the Ministry of Labour, affected individuals, and potentially other organizations that were affected by the breach TRUE/FALSE

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20. In Hopkins v Kay, the Ontario Court of Appeal held that the existence of a statutory cause of action under PHIPA does not preclude a common law claim for intrusion upon seclusion because there are differences between the two types of claims.

TRUE/FALSE

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Chapter 11: Navigating the Employment Relationship Multiple choice 1. In the case of Kohler Canada Co. v Porter, the court found that the non-competition clause was unenforceable because: (a) there was no consideration given for the new obligation (b) the non-competition clause was overly broad (c) neither of the above (d) both of the above 2. In non-unionized workplaces, which one of the following steps in the progressive discipline process is often eliminated because of its legal implications? (a) verbal warning (b) written warning (c) suspension with pay (d) suspension without pay 3. In Reininger v Unique Personnel Canada Inc., the court held that: (a) the non-union employer had the right to suspend Reininger without pay (b) the non-union employer did not have the legal right to suspend Reininger because it was non-union and there was no express provision in its employment contract to allow such a suspension (c) the non-union employer had the right to suspend Reininger but the suspension was unreasonably long and so constituted constructive dismissal (d) the non-union employer did not have the right to suspend Reininger because he lost his licence due to substance abuse and therefore was protected by the Human Rights Code 4. Which of the following employer actions may constitute constructive dismissal for non-union employees? (a) suspension without pay (b) probation (c) temporary layoffs (d) all of the above 5. Condonation refers to a situation where: (a) an employer is aware of misconduct but takes no disciplinary action within a reasonable time (b) the employment contract is ambiguous and therefore will be interpreted against the employer

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(c) the employment contract no longer reflects the employment relationship (d) the termination clause in the employment contract is unenforceable 6. The practice of progressive discipline first arose: (a) in unionized workplaces (b) in non-unionized workplaces (c) in the public sector (d) none of the above 7. Vicarious liability refers to a situation where: (a) the employer is held legally responsible for the actions of its employees (b) the employer serves alcohol at company-sponsored events (c) the onus is on the employer to prove that it was not negligent (d) none of the above 8. In Daley v Depco International Inc., the judge found that: (a) the employee was wrongfully dismissed because the incidents of misconduct were not similar in nature (b) the employee was not wrongfully dismissed because progressive discipline is less applicable in the common law context (c) the employee was wrongfully dismissed because dismissal with cause is the “capital punishment” of employment law and only the most serious misconduct warrants it (d) the employee was not wrongfully dismissed because it is the quality, not the similarity, of the accumulated misconduct that matters 9. In Bennett v Sears Canada Inc., an HR representative provided advice via email to the plaintiff regarding her eligibility for its retirement benefits that was incorrect and contrary to the plain language in the employer’s policy manual. In that case, the court held: (a) in favour of the employer, because the HR representative’s advice was contrary to the plain language in the employer’s policy manual (b) in favour of the plaintiff, because the information provided by the HR representative became part of her employment agreement with the employer (c) in favour of the employer, because the policy manual was part of the plaintiff’s original written employment contract and overrode information provided by email (d) in favour of the plaintiff, because there is a power imbalance between employees and employers and employees should not be misled.

10. Well-drafted employer policy manuals serve several important purposes. Which one of the following statements related to an employer policy manual is NOT true?

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(a) it should be provided before the employee begins work (b) it should assure employees that the steps laid out in the progressive discipline policy will be carefully followed (c) it should make employees aware of the consequences of failing to follow the policies (d) it provides a convenient means for making relatively minor changes to company rules 11. A change to an employee’s employment contract is more likely to constitute constructive dismissal if it is: (a) an “across the board” change that affects many employees, rather than just one employee (b) a minor change (c) done in response to difficult market conditions (d) effective immediately 12. Where more than one employee is affected by a significant change in the terms of employment, usually an employer should provide the same notice of change to all employees based on the: (a) longest notice period to which any of the employees is entitled (b) shortest notice period to which any of the employees is entitled (c) average notice period to which the employees are collectively entitled (d) none of the above 13. Which one of the following is NOT true of fixed-term employment contracts? (a) under the common law, an employer does not need to provide notice of termination when a fixed-term contract is completed (b) under the common law, when an employer inadvertently allows an employee to continue working beyond the expiry date, the fixed-term contract automatically becomes an indefinite-term contract (c) fixed-term contracts should still contain a termination clause that allows either party to terminate the contract on a certain amount of notice (d) fixed-term contracts do not require much attention from the HR department, as they automatically come to an end at the conclusion of the specified term 14. Generally speaking, employers may ask for certain types of medical (functional abilities) information where it is necessary for the proper management of their operations. Which one of the following should an employer usually NOT ask for? (a) the employee’s medical diagnosis (b) the expected date when the employee will be fit to return to work

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(c) information concerning any limitations or restrictions on the employee’s return to work (d) an assessment of duties that the employee will be able to perform on his or her return to work 15. In Trites v Renin Corp. the court held that there is no constructive dismissal where a temporary layoff has been rolled out in accordance with Ontario’s Employment Standards Act. Subsequent cases in Ontario have: (a) confirmed this principle (b) confirmed this principle but only as long as the employer acted reasonably and in good faith in placing the employee on temporary layoff (c) overturned this principle by findng that a temporary layoff may constitute constructive dismissal even where the employer complies with the requirements of Ontario’s Employment Standards Act (d) overturned this principle in some cases while confirming it in others, depending on the specific facts of the case 16. Bruce, a non-union employee, has been temporarily laid off by his employer, who has complied with all of the requirements for a temporary lay-ff under Ontario’s Employment Standards Act. Bruce’s employment contract does not reference temporary layoffs and he is aware of only one other worker who has been laid off from his workplace. In this situation, which one of the following statements is likely true? (a) this temporary layoff will constitute constructive dismissal because there does not appear to be either an express or an implied term in Bruce’s contract of employment permitting it (b) his temporary layoff will not constitute constructive dismissal because the employer has complied with the requirements of Ontario’s Employment Standards Act (c) if Bruce is recalled to the job from which he was temporarily laid off he may refuse to return and sue the employer for reasonable notice damages under the common law (d) Bruce will not be able to successfully argue that there is no implied term in his contract permitting a temporary layoff because a co-worker was previously laid off 17. In Ivic v Lakovic, a taxi cab company was sued by a customer after she had been sexually assaulted by one of its employee drivers. In this case the Ontario Court of Appeal held that: (a) the taxi cab employer was vicariously liable for the driver’s conduct because it had put the driver in a position of authority over the customer (b) the taxi cab employer was not vicariously liable for the driver’s conduct because the customer was drunk at the time

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(c) the taxi cab employer was vicariously liable for the sexual assault because it was reasonably foreseeable that employees might carry out their driver duties in a wrongful manner (d) the taxi cab employer was not vicariously liable because the driver’s misconduct was not intimately connected to his functions; in fact, the employer’s policies discouraged any unnecessary physical contact with customers 18. Under the Merrifield v Attorney General decision, the trial court held that a plaintiff may establish the tort of harassment by meeting a four-part test. Which one of the following is Not one of the four parts of that test? (a) the defendant intended to cause (or had a reckless disregard to causing) emotional stress (b) the defendant’s conduct was outrageous (c) the plaintiff suffered extreme emotional distress (d) the defendant’s outrageous conduct was the actual and proximate cause of the emotional distress (e) the plaintiff showed that he or she suffered a visible and provable illness as a result of the defendant’s actions

True or False 1. Despite the significant number of employment-related statutes, the underlying framework of a non-union employment relationship is the individual contract of employment.

TRUE/FALSE 2. The contents of an employer’s employment policy manual automatically apply to all employees but do not cover independent contractors.

TRUE/FALSE 3. As long as an employer provides sufficient advance notice of any change to the terms of employment, it can unilaterally make even a significant change (such as a drastic decrease in wages) without facing a lawsuit for constructive dismissal.

TRUE/FALSE 4. An employer’s promise not to terminate an employee’s employment if he agrees to accept a new term in his employment contract can never constitute consideration.

TRUE/FALSE

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5. An employee’s refusal to sign a disadvantageous new employment agreement does not usually constitute just cause for dismissal.

TRUE/FALSE 6. Progressive discipline is less applicable in the context of statutory termination or severance pay requirements than it is under the common law.

TRUE/FALSE 7. An employer may not terminate an employee for innocent absenteeism.

TRUE/FALSE 8. Absences caused by a disability should be dealt with outside any attendance management program.

TRUE/FALSE 9. From a legal point of view, salary reviews should be held at the same time as performance reviews.

TRUE/FALSE 10. In Wronko v Western Inventory Service Ltd., the Ontario Court of Appeal held that the fundamental terms of an employment contract can only be changed with the consent of both the employer and the employee.

TRUE/FALSE 11. An employer can be vicariously liable for damages suffered by a third party caused by employees to use hand-held cellphones while driving.

TRUE/FALSE 12. A change to an employee’s employment contract is less likely to constitute constructive dismissal if it is an “across the board” change that affects many employees, rather than just one employee.

TRUE/FALSE 13. Even promoting an employee to a higher, better-paying position may potentially constitute constructive dismissal.

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14. An employer must apply progressive discipline before it can dismiss a non-union employee for cause.

TRUE/FALSE 15. An employer will be vicariously liable for any damages caused by an employee’s actions as long as it approved those specific actions.

TRUE/FALSE 16. There are only two reasons that an employer may request medical information from an employee: to determine whether a temporary absence due to illness or injury is legitimate and to determine whether an employee is fit to return to work after a medically related absence where there are reasonable grounds to question the employee’s fitness or ability to work safely.

TRUE/FALSE 17. Placing employees on probation is increasingly uncommon among employers because it is often not effective in either improving employee performance or preventing wrongful dismissal suits.

TRUE/FALSE 18, If an employer’s progressive discipline process is limited to only three steps, the one step that should not be eliminated is the final written warning as it is essentially mandatory.

TRUE/FALSE 19. Unless an employment contract expressly allows for layoffs (or such a right is implicit because layoffs are common in that workplace or industry), a layoff may constitute a fundamental change in the terms and conditions of employment that triggers wrongful dismissal damages.

TRUE/FALSE 20. To be an implied term of the employment contract, the right to impose a lay-off on a non-union employee must be “notorious” or obvious; otherwise, it will constitute constructive dismissal.

TRUE/FALSE

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21. An employer cannot require an employee to provide a certificate from a qualified health practitioner as evidence of the employee’s entitlement to personal emergency leave under Ontario’s Employment Standards Act. The term “qualified medical practitioner” includes only a physician or a psychologist.

TRUE/FALSE 22. Under the common law, negligent acts by employees may be grounds for just cause termination but employees are not liable to their employers for damages resulting from simple acts of negligence while on the job.

TRUE/FALSE

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Chapter 12: Resignation and Retirement Multiple choice 1. Paul is a difficult employee who doesn’t like receiving any kind of criticism. After receiving a performance review that clearly upset him, Paul storms out of his boss’s office, yelling, “I resign.” In this situation, the employer should: (a) immediately write a letter accepting the resignation since it will solve a big problem for the employer (b) give Paul time to cool off to see if that’s really what he wants to do (c) accept Paul’s resignation orally and then send a notification out to his co-workers (d) tell everyone in the office how Paul reacted to his performance review and get his co-workers’ input 2. Due to changes in how “age” is defined in Ontario’s Human Rights Code: (a) most employers cannot insist that an employee retire at age 65 but an employee who is dismissed after that age cannot sue for wrongful dismissal damages (b) most employers can now only insist that an employee retire once that employee reaches age 70 (c) most employers cannot insist that an employee retire just because he or she has reached the age of 65 (d) none of the above 3. In Blackberry Limited v Marineau-Mes, a former employee argued that the six-month notice of resignation requirement in his employment contract was unenforceable. The court decided that the requirement was: (a) enforceable because the plaintiff continued to be paid and six months was standard in the industry (b) unenforceable because it was unreasonably long and reflected a power imbalance between the employer and the employee (c) unenforceable because it was, in effect, a non-competition clause (d) unenforceable because the normal notice of resignation requirement is in the range of two to four weeks 4. To ensure that offering an early retirement incentive does not constitute age discrimination, an employer should: (a) present the offer in a neutral way, focusing on contents and eligibility (b) make sure the eligible employee understands the attractiveness of the offer by, for example, holding a number of meetings to explain it (c) arrange teleconferences with retired acquaintances of the employee to discuss the advantages of retirement (d) present the offer through the individual’s immediate supervisor

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5. Which one of the following is NOT a benefit of conducting an exit interview of a departing employee? (a) it can help the employer develop improved retention programs (b) it can uncover issues that could potentially lead to harassment or discrimination claims (c) it provides an opportunity to discuss outstanding legal obligations such as the departing employee’s duty not to disclose confidential information (d) it provides an opportunity for the employee’s direct supervisor to have a final, face-to-face, confidential meeting 6. In Gilbert v Tandet Transport, the court found that Gilbert had not resigned, and instead had been dismissed, because: (a) it was not his fault that his employer could not reach him by phone to advise him whether it was a full-time or part-time position he would be returning to (b) the employer should have indicated the nature of the position he was being recalled to on the recall notice (c) he never formed an intention to resign because he never had enough information to make that decision (d) the employer did not honestly believe that Gilbert had resigned 7. In Betts v IBM Canada Ltd. the issue was whether the plaintiff employee abandoned his job when he failed to fulfil the requirements for applying for disability benefits. In this case: (a) the court held for the employer because, despite numerous and specific requests to do so, the employee repeatedly failed to comply with those requirements (b) the court held for the employee because he was suffering from a serious depressive episode and therefore did not appreciate the urgency of complying with the plan’s requirements (c) the court held for the employee because this was the first time he had applied for disability benefits and therefore he was unfamiliar with its requirements (d) the court held for the employer because employees are held to a high standard of conduct when applying for employer-provided disability benefits

True or False 1. Under current Ontario law, employees in this province are required to retire when they reach 65 years of age.

TRUE/FALSE

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2. Where an employee tenders a resignation but later alleges that the resignation was not voluntary, the onus is on the employee to prove that the resignation was not voluntary.

TRUE/FALSE 3. Under the common law, an employee has an implied duty to provide reasonable notice of resignation just as an employer has an implied duty to provide reasonable notice of termination.

TRUE/FALSE 4. Several years ago, Ontario effectively abolished mandatory retirement at age 65 by amending the Employment Standards Act. TRUE/FALSE 5. An employee who chooses to resign, rather than be fired, is not entitled to wrongful dismissal damages even if it turns out that the employer did not have just cause for termination.

TRUE/FALSE 6. Ontario has no general legislated (statutory) requirement that an employee provide advance notice of resignation.

TRUE/FALSE 7. It is contrary to Ontario’s Human Rights Code for an employer to make an early retirement incentive package available to older workers.

TRUE/FALSE 8. When an employee fails to provide reasonable notice of resignation, the employer has a legal duty to try to mitigate its damages by attempting to find a replacement for that employee.

TRUE/FALSE 9. The test for job abandonment is similar to the test for resignation: do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract.

TRUE/FALSE

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10. Very few occupations satisfy the test that mandatory retirement at a certain age is a BFOR for the job. Three occupations that do satisfy this test are policing, firefighting and aviation.

TRUE/FALSE 11. Lucy is being permanently laid off due to her employer’s own retirement. In this situation Lucy is not entitled to reasonable notice or damages in lieu of reasonable notice under the common law because employers are also entitled to retire without penalty.

TRUE/FALSE

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Chapter 13: Dismissal With Cause Multiple choice 1. In Kelly v Linamar Corporation, an employee was dismissed for cause for being charged with, and admitting to, possessing child pornography on his home computer.

In that case, the court found that: (a) the employer had just cause because no employer can be expected to continue to employ someone who is involved in activities that offend societal norms in relation to children (b) the employer did not have just cause because the misconduct occurred entirely on the employee’s own time and equipment (c) the employer did not have just cause to dismiss the employee until he had been convicted of the offence (d) the employer had just cause in these circumstances in light of its prominence within the local community and the employee’s position 2. To establish that it had just cause to dismiss an employee, an employer must show both that the alleged misconduct took place and that the nature or degree of misconduct warranted dismissal, keeping in mind all relevant circumstances. Which one of the following is NOT one of the factors that courts normally consider? (a) the employee’s length of service and disciplinary record (b) whether the misconduct was planned and deliberate or a momentary error in judgment (c) the employer’s size and financial health (d) the nature of the employee’s position 3. In a legal dispute concerning whether or not an employer had just cause to dismiss an employee: (a) the onus is on the employer to show, on a balance of probabilities, that it had just cause (b) the onus is on the employee to show, on a balance of probabilities, that the employer did not have just cause (c) the onus is on the employer to show, beyond a reasonable doubt, that it had just cause (d) the onus is on the employee to show, beyond a reasonable doubt, that the employer did not have just cause 4. Which of the following legal concepts do the courts apply in determining whether an employer had just cause to terminate an employee? (a) near cause (b) ballpark damages

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(c) proportionality (d) none of the above 5. Which one of the following was the landmark Supreme Court of Canada decision that established the need to take a contextual approach in determining whether a dismissal was for just cause? (a) McKinley v BC Tel (b) Weisenberger v Marsh Canada Limited (c) Obeng v Canada Safeway Limited (d) Henry v Foxco Ltd. 6. Which one of the following grounds is typically the most difficult for an employer to prove constitutes “just cause”? (a) conflict of interest (b) incompetence (c) insubordination (d) intoxication 7. Which one of the following statements concerning an employer’s obligation to provide procedural fairness in investigating alleged misconduct is NOT true? (a) the employee should be given ample opportunity to respond to the allegations against him or her (b) the allegations should be investigated in good faith, thoroughly, and promptly (c) the employer should promise that the investigation will remain confidential (d) the decision must be made in good faith and not for an ulterior motive 8. Which one of the following Canadian jurisdictions does not have legislated “unjust dismissal” provisions that provide certain protections to non-union, non-management employees from dismissal without cause? (a) Quebec (b) Ontario (c) Nova Scotia (d) Canada 9. Even an employer’s off-duty conduct may provide just cause for termination in certain circumstances. Which one of the following is NOT one of those circumstances? (a) the employee’s off-duty conduct harmed the employer’s business or reputation (b) the employee’s off-duty conduct lead to a refusal, reluctance or inability of other employees to work with them (c) the employee’s off-duty conduct took place in many different locations

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(d) the employee’s off-duty conduct was a serious breach of the Criminal Code (e) the employee’s off-duty conduct made it difficult for the employer to carry out its functions and/or manage its workforce 10. Carter v 1657593 Ontario Inc. involved the termination of a 20-year service employee for alleged cause after he purchased a stake in a bar that the employers believed created a conflict of interest with his position at their Inn. In that case the court held that: (a) His employers had just cause because the employee called in sick while he was actually working at his recently purchased bar (b) His employers did not have just cause because there was no actual conflict of interest between his position and his purchase of a stake in a bar in a neighbouring community (c) His employers had just cause because they had reasonable grounds for believing that he had a conflict of interest (d) His employers did not have just cause because they were acting in bad faith

True or False 1. The same set of facts relating to misconduct may constitute just cause for one employee but not for another.

TRUE/FALSE 2. The way an employee responds to an allegation of misconduct can be a critical factor in determining whether or not the employer has just cause to dismiss an employee.

TRUE/FALSE 3. One of ABC Company’s largest customers has just gone bankrupt, and it needs to downsize 10% of its workforce to remain in business. In this situation, ABC Company has just cause under the common law to dismiss the affected employees.

TRUE/FALSE 4. In a legal dispute arising out of a termination, justification for dismissal can be based on facts discovered after dismissal.

TRUE/FALSE 5. An employee can eliminate the risk of being fired for just cause for inappropriate comments made in a social blog by writing anonymously and using aliases for the names of people referred in the organization.

TRUE/FALSE

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6. To establish just cause under the common law, an employer must prove, on a balance of probabilities, that the employee’s misconduct was “wilful.”

TRUE/FALSE 7. In a situation involving sexual harassment at the workplace, courts are more likely to find just cause where the misconduct was done by a supervisor rather than by a nonsupervisory employee.

TRUE/FALSE 8. Conduct that occurs offsite, during the social component of a business meeting, is considered part of the employment relationship for purposes of establishing just cause.

TRUE/FALSE 9. An employer that alleges dishonesty as the ground for just cause dismissal may be required to meet a higher standard of proof than a balance of probabilities.

TRUE/FALSE 10. If any part of an employee’s absences results from a disability, an employer cannot rely on those absences in determining whether it has just cause to dismiss an employee for excessive absenteeism.

TRUE/FALSE 11. A court may find just cause for dismissal based on the fact that the employee lied or tried to conceal the misconduct, even where the misconduct itself was not serious enough to constitute just cause.

TRUE/FALSE 12. An employee can be disciplined or fired for cause based on online postings or blogs made outside of working hours.

TRUE/FALSE 13. The greater the degree of trust required for a position, the more likely it is that a court will find that an employee’s misconduct constitutes just cause under the common law.

TRUE/FALSE

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14. Employers who use the tactic of making an ultimatum such as “accept this severance package or be fired for cause and be ineligible for EI” may be liable to the dismissed employee for additional damages as a result.

TRUE/FALSE 15. If an employer is alleging just cause for dismissal, it should set out in very specific terms the reasons for the dismissal.

TRUE/FALSE 16. Employers are entitled to rely on “after-acquired cause” in supporting dismissal for cause but only if the after-acquired cause relates or is similar to the original reasons for the dismissal for cause.

TRUE/FALSE 17. An employer’s failure to warn an employee after each complaint of harassment that his or her job is in jeopardy if the behaviour is not corrected is fatal to its claim of dismissal for cause.

TRUE/FALSE 18. Common law courts encourage employees to secretly record conversations with their supervisors if it is done to provide evidence in wrongful dismissal cases.

TRUE/FALSE 19. The standard for dismissing, without notice, an employee who is on probation is lower than the normal standard which requires a finding that the employee fundamentally undermined the employment relationship. For a probationary employee the standard is one of “suitability”.

TRUE/FALSE

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Chapter 14: Termination and Severance Pay Requirements Under the Employment Standards Act Multiple choice 1. Under Ontario’s ESA, what is the minimum statutory termination notice or pay in lieu of notice required for an employee who has worked for an employer for 4½ years and who is permanently laid off at the same time as 49 other employees? (a) 4 weeks (b) 5 weeks (c) 8 weeks (d) 12 weeks 2. Under Ontario’s ESA, a layoff will be considered temporary where: (a) the employee is off for no more than 13 weeks in any period of 20 consecutive weeks (b) the employee is off for no more than 35 weeks in any 52-week period (c) the employee is represented by a union (d) all of the above 3. An employee who decides to begin a court action for wrongful dismissal after filing a claim under the ESA must withdraw the statutory claim within: (a) one week of filing the claim (b) two weeks of filing the claim (c) three weeks of filing the claim (d) four weeks of filing the claim 4. Under Ontario’s ESA, what is the amount of individual termination notice or pay in lieu of notice required for an employee with 7½ years’ service? (a) 7 weeks (b) 7½ weeks (c) 7 months (d) 8 weeks 5. To remain eligible for statutory severance pay, an employee who has received notice of termination and wishes to resign during the notice period must give the employer at least: (a) one week’s written notice (b) two weeks’ written notice (c) three weeks’ written notice

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(d) none of the above 6. Under Ontario’s ESA, to be effective, a notice of termination must: (a) be in writing (b) state the reason for the termination (c) be hand-delivered to the employee (d) all of the above 7. Under Ontario’s ESA, which one of the following is an employer obligated to provide to an employee who is legitimately dismissed for wilful misconduct? (a) advance notice of termination (b) severance pay (c) wages and vacation pay owing (d) none of the above 8. What is the minimum termination and severance payment required under Ontario’s ESA for an employee who has worked for an employer for 13½ years and who is terminated without cause? (The employer has a payroll of $4 million.) (a) 8 weeks’ notice or pay in lieu and 13½ months’ severance pay (b) 8 weeks’ notice or pay in lieu and 13½ weeks’ severance pay (c) 13 weeks’ notice or pay in lieu and 13½ weeks’ severance pay (d) 13½ weeks’ notice or pay in lieu and 13½ weeks’ severance pay 9. The purpose of statutory termination notice or pay in lieu of notice is to: (a) provide the employee with time to find a comparable job while still receiving income (b) recognize the employee’s loss of benefits and seniority in the job (c) punish the employer for wrongfully dismissing the employee (d) all of the above 10. The choice of whether an employee who is terminated without legal cause will continue working throughout the notice period or receive pay in lieu of notice is made by: (a) the dismissed employee (b) the Ministry of Labour, Director of Employment Standards (c) the employer (d) the employer and dismissed employee, jointly 11. To qualify for statutory severance pay, an employee must have worked for the employer for at least: (a) one year

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(b) two years (c) five years (d) ten years 12. Under the ESA’s continuity of service rule, employees who continue to work for a new owner of a former employer’s business retain their length of service. However, there is an exception where there is a gap between the employee’s employment with the former employer and the new employer of at least: (a) 10 weeks (b) 13 weeks (c) 26 weeks (d) 35 weeks 13. With the agreement of the Director of Employment Standards, an employer may make statutory severance payments in installments as long as the installment period does not exceed: (a) one year (b) two years (c) three years (d) five years 14. Under Ontario’s ESA, an order to pay termination or severance pay cannot exceed: (a) $10,000 per employee (b) $15,000 per employee (c) $25,000 per employee (d) none of the above 15. Susan has worked for XYZ Company as a cashier for 9½ years. Two years ago, she quit her job with XYZ to work for a competitor, but after only two months, she realized that she had made a mistake, and XYZ Company rehired her. Now, XYZ Company is closing down and Susan will be permanently laid off. Under the ESA, how much termination notice or pay in lieu of notice does XYZ Company owe Susan? (a) 1 week (b) 2 weeks (c) 8 weeks (d) 9 weeks 16. Mass termination requirements under the ESA: (a) replace the individual notice requirements under the ESA (b) are in addition to individual notice requirements under the ESA Copyright © 2019 Emond Publications. All rights reserved.

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(c) require the employer to provide an employee with a monetary package rather than allowing the employer to provide working notice instead (d) are only available to non-unionized workers 17. An employee who is hired for a fixed term or task is not entitled to ESA termination notice or pay in lieu of notice unless that term or task lasts more than: (a) 3 months (b) 6 months (c) 9 months (d) 12 months 18. Farah is permanently laid off effective March 1. However, her employer receives a big order a week later. It wants to bring Farah and the other permanently laid-off workers back temporarily to fulfill this single order but only if it does not trigger a new notice period. Under Ontario’s ESA, this is allowed as long as the returned workers do not work beyond: (a) a 13-week period after their employment is terminated (b) a 17-week period after their employment is terminated (c) a 20-week period after their employment is terminated (d) a 26-week period after their employment is terminated 19. Yesterday afternoon, just before she was leaving work for the day, Ivana’s supervisor came up to her and the five other workers in her department to give them some bad news. The employer would be eliminating their department, and they would all be laid off in five to six months’ time. None of the employees in the department has more than five years’ service. Which of the following is true? (a) the supervisor’s comments start the statutory notice period running because the employer has given the employees far more notice than is required under the ESA (b) the statutory notice period has not started running yet because the exact date of termination is not clear (c) the statutory notice period has not started running yet because the supervisor did not give the notice in writing (d) both b and c 20. The mass notice requirements under Ontario’s ESA apply when: (a) 50 or more employees are terminated within four consecutive weeks (b) 100 or more employees are terminated within four consecutive weeks (c) 50 or more employees are terminated within 13 consecutive weeks (d) 100 or more employees are terminated within 13 consecutive weeks 21. Which one of the following is NOT one of the exceptions to the requirement to provide notice of termination (or pay in lieu of notice) to a dismissed employee?

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(a) where an employee is temporarily laid off (b) where an employee has been guilty of misconduct, disobedience, or neglect of duty that is not trivial and has not been condoned by the employer (c) where an employee refuses reasonable alternative work (d) where an employee is terminated during or as a result of a strike or lockout at the workplace 22. Sometimes an employer provides a payment to a dismissed employee on a voluntary basis, even though it believes it has just cause. To ensure that this payment cannot be used later on in court to argue that the employer effectively admitted lack of just cause, the employer should clearly indicate in writing that the payment is made: (a) based on frustration of contract (b) as part of a settlement negotiation (c) on a without prejudice basis (d) on a contra proferentem basis 23. After 3 ½ years of employment, James’ employer, Oldco, sold its business to Newco.

James was immediately hired by Newco and he worked there for 2 years before he was permanently laid off. Assuming Newco has a payroll of $2.25 million, under Ontario’s ESA what does Newco owe James in these circumstances? (a) 2 weeks’ notice or pay in lieu of notice of termination (including benefits), plus 2 weeks’ severance pay (b) 2 weeks’ notice or pay in lieu of notice of termination (including benefits), and no statutory severance pay because James does not have 5 years’ service with Newco (c) 5 weeks’ notice or pay in lieu of notice of termination (including benefits), plus 5 ½ weeks of severance pay (d) 5 weeks’ notice or pay in lieu of notice of termination (including benefits), and no statutory severance pay 24. Under Ontario’s ESA, employees who are permanently laid off: (a) have the same statutory entitlements as other terminated employees (b) have fewer statutory entitlements than other terminated employees (c) have greater statutory entitlements than other terminated employees (d) do not have any statutory entitlements as they are being laid off, not terminated

True or False 1. The primary purpose of statutory severance pay is to provide the dismissed employee with income while searching for a comparable job.

TRUE/FALSE

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2. The maximum amount of statutory severance pay payable under the ESA is 20 weeks’ pay.

TRUE/FALSE 3. Joe’s employment contract states that he may be temporarily laid off for a period of up to 12 months. This provision is void, as an employer cannot effectively “contract out” of the ESA by negotiating a term that allows for a temporary layoff period that is longer than that provided under the ESA. TRUE/FALSE 4. Under Ontario’s employment standards legislation, a written notice of termination must set out the reason for the termination.

TRUE/FALSE 5. Pay in lieu of termination notice must be paid to an employee, at the latest, either seven days after the employee is terminated or on the employee’s next regular pay day, whichever is later.

TRUE/FALSE 6. Under Ontario’s employment standards legislation, employers are never required to provide statutory notice of termination to employees who are hired for a fixed term or task.

TRUE/FALSE 7. Under Ontario’s employment standards legislation, a mass termination occurs where 50 or more employees are terminated at an employer’s establishment within a sixmonth period.

TRUE/FALSE 8. Under Ontario’s ESA, an employer must maintain an employee’s benefits during the statutory notice period.

TRUE/FALSE 9. Under Ontario’s ESA, a dismissed employee has a duty to mitigate his or her damages by looking for a comparable job in order to remain eligible for statutory termination notice or pay in lieu of notice, or statutory severance pay.

TRUE/FALSE

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10. Under Ontario’s ESA, the exceptions to the termination notice or pay in lieu provisions are similar, but not identical to, the exceptions to the severance pay requirements.

TRUE/FALSE

11. Under the ESA, a “termination” that triggers termination notice or pay in lieu of notice obligations includes a situation where the employer stops employing the individual because of bankruptcy or insolvency.

TRUE/FALSE

12. A notice of mass termination is not effective until the employer submits the necessary form to the Director of Employment Standards and posts a copy of that form in the workplace.

TRUE/FALSE

13. “Bumping” occurs where a laid-off employee displaces another employee on the basis of seniority.

TRUE/FALSE

14. In the Bombardier decision, the Ontario Court of Appeal found that the “sale of part of a business” under section 9 of the ESA does not include the outsourcing of jobs.

TRUE/FALSE

15. George has worked for his small, family-owned employer for 30½ years. Under Ontario’s ESA, if George is terminated without just cause, he is entitled to only 8 weeks’ termination notice, or pay in lieu of notice with no statutory severance pay.

TRUE/FALSE

16. The mass notice requirements under Ontario’s ESA do NOT apply if the employer is terminating 10% or less of its workforce at an establishment and none of the terminations is caused by the permanent discontinuance of part of the employer’s business.

TRUE/FALSE

17. Under Ontario’s ESA, statutory severance pay includes credit for partial years, but termination notice (or pay in lieu of notice) does not.

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TRUE/FALSE

18. Gillian’s large employer provides her with 12 months’ notice of termination. Since this notice period is far in excess of the notice required under Ontario’s ESA (and therefore is a “greater benefit”), the employer does not have to provide her with statutory severance pay.

TRUE/FALSE

19. An employee who both retains recall rights and is entitled to statutory severance pay must choose to either keep the recall rights and not receive severance pay immediately or give up his or her recall rights.

TRUE/FALSE

20. Attempts to “soften” the message of termination by hinting at the possibility of other positions in the organization becoming available soon may negate the termination notice.

TRUE/FALSE

21. Robyn receives a termination notice indicating that it will become effective “sometime in the next 120 days, depending on operational needs”. This notice meets the requirement for written notice of termination under the ESA. TRUE/FALSE

22. Under Ontario’s ESA a permanent layoff is a deemed termination. This means that employees who are permanently laid off for economic reasons have the same statutory entitlements on termination as other terminated employees.

TRUE/FALSE

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Chapters 15 and 16: Dismissal Without Cause and Post-Employment Obligations Multiple choice 1. Which of the following is NOT one of the factors a court will consider in determining reasonable notice under the common law? (a) the employee’s age (b) the employee’s length of service (c) the employer’s size and financial health (d) the employee’s position 2. Which of the following factors is NOT considered by a court in determining whether an employment contract has been frustrated in the case of prolonged employee illness? (a) sick pay provisions in the employment contract (b) the length of employment (c) the age of the employee (d) the nature of the illness 3. An employer may require a dismissed employee to sign a release before providing her with: (a) statutory termination and severance pay (b) payment related to the common law reasonable notice period (c) neither of the above (d) both of the above 4. According to Mifsud v MacMillan Bathurst, an employee who has been constructively dismissed has a duty to mitigate by taking the altered job offered by the employer where: (a) the salary and working conditions remain the same and the working relationships are not acrimonious (b) the employee is in a non-supervisory position (c) the employer is relatively large (d) all of the above 5. Wrongful dismissal actions may be heard in Small Claims Court as long as the claim is for: (a) $5,000 or less (b) $10,000 or less (c) $20,000 or less

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(d) $25,000 or less 6. Under the federal Employment Insurance Act, an employer must issue a record of employment within: (a) 5 calendar days of the employee’s interruption of earnings (b) 7 calendar days of the employee’s interruption of earnings (c) 10 calendar days of the employee’s interruption of earnings (d) 14 calendar days of the employee’s interruption of earnings 7. Under which of the following employment statutes is it possible for an employee to be reinstated? (a) the Employment Standards Act (b) the Human Rights Code (c) the Occupational Health and Safety Act (d) all of the above 8. An employee whose hours of work are unilaterally reduced from 40 hours to 28 hours per week may have a common law claim against the employer based on: (a) the employer’s failure to mitigate (b) constructive dismissal (c) condonation (d) reformulated Wallace damages 9. In Honda Canada Inc. v Keays, the Supreme Court of Canada decided that Wallace damages for an employer’s bad-faith conduct in the manner of dismissal should: (a) be given as an extension of the reasonable notice period (b) reflect actual damages suffered (c) go beyond compensating the employee where the employer’s conduct is deserving of punishment (d) only be granted where the employer has committed an independent actionable wrong 10. In Honda Canada Inc. v Keays, the Supreme Court of Canada overturned the Ontario Court of Appeal’s decision. Which of the following reflects one of the Supreme Court’s rulings in that case? (a) Keays’ reasonable notice period should be increased because Honda is such a large company (b) Keays should not receive an extension to his notice period based on Wallace-type damages (c) Keays’ punitive damages award should be reduced to $100,000 because Honda’s conduct was not as serious as the trial judge said it was

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(d) Honda should not have insisted that Keays meet with its own medical doctor 11. In Evans v Teamsters Local Union No. 31, Evans was an employee who was fired without just cause. After several months of unsuccessful negotiations over the size of his severance package, the employer told Evans to return to his former position and work out the rest of his reasonable notice period. Evans rejected this offer and sued the employer for wrongful dismissal damages. This case went all the way to the Supreme Court of Canada, which decided that: (a) Evans was entitled to punitive damages because of the harsh way in which his employer had treated him during the negotiations (b) Evans was entitled to reasonable notice damages of 22 months, based on the Bardal factors (c) Evans was not entitled to any wrongful dismissal damages because he had tried to blackmail his former employer into hiring his wife (d) Evans was not entitled to any wrongful dismissal damages because he failed to mitigate his losses by returning to the job from which he had been previously terminated to work out his notice period 12. Under the common law, frustration of contract often relates to: (a) culpable absenteeism (b) innocent absenteeism (c) chronic lateness (d) off-duty misconduct 13. Before the Honda Canada Inc. v Keays decision, a “Wallace-type” extension of the reasonable notice period was given where: (a) the dismissed employee was lured away from another job (b) the manner of dismissal was unduly harsh or unfair (c) the dismissed employee was too old to find another job easily (d) the dismissed employee tried to mitigate his or her losses 14. A dismissed employee’s “duty to mitigate” applies under: (a) the common law (b) the Employment Standards Act (c) both of the above (d) neither of the above 15. To determine what the termination notice or payment in lieu of notice period should be for an employee who is dismissed without just cause, the employer needs to look to which three areas? (a) the employment contract, the Human Rights Code, and the common law

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(b) the Employment Standards Act, the common law, and the Canadian Charter of Rights and Freedoms (c) the employment contract, the Employment Standards Act, and the common law (d) the Human Rights Code, the Employment Standards Act, and the common law 16. In Boucher v Wal-Mart Canada Corp., the Ontario Court of Appeal held that: (a) the punitive award against Wal-Mart and Boucher’s supervisor should be reduced because the large awards for aggravated damages already contained an element of punishment (b) the punitive award against Wal-Mart and Boucher’s supervisor should be increased because their misconduct was especially serious, placing it “at the highest end of the scale” (c) the punitive award against Boucher’s supervisor should be eliminated as it is not fair to make such an award against an individual (d) none of the above 17. Employees’ agreements to repay the cost of their training if they leave their job before a certain date: (a) is unenforceable under any circumstances (b) is unenforceable unless the employer derives no benefit from the training (c) is unenforceable if the employer even suggests that the commitment is “unlikely to be enforced” (d) is usually enforceable 18. In determining what constitutes “reasonable notice” of termination under the common law, generally speaking the longer an employee has worked for an employer: (a) the shorter the reasonable notice period (b) the longer the reasonable notice period (c) the more likely courts are to apply the one month per year of service “rule of thumb” (d) none of the above – length of service is not a relevant consideration in determining the period of reasonable notice 19. In Potter v New Brunswick (Legal Aid Services) the Supreme of Court Canada held that: (a) an employer does not have an unfettered discretion to withhold work from an employee, even when a suspension is with pay (b) as long as it is a paid leave, an employer can put a non-union employee on administrative leave without having to explain the reason for the leave (c) a paid leave does not substantially change the essential terms of an employee’s contract and therefore does not constitute constructive dismissal

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(d) a paid leave will not constitute constructive dismissal if it is under one month in duration 20. Which one of the following is NOT included in calculations of loss of earnings during the reasonable notice period? (a) salary and commissions (b) estimated increases in salary and commissions (c) a discretionary bonus that requires employees to be in “active service” for the bonus to be paid (d) a discretionary bonus that clearly states that employees will have no entitlement to a bonus during a period of reasonable notice 21. Where there is no genuine issue requiring a trial in a wrongful dismissal action, either party may bring ______________, to ask a judge to resolve the dispute based on the written record. (a) a resolution motion (b) an interim judgment motion (c) an evidentiary motion (d) a summary judgement motion 22. Generally speaking, a successful party in a court case is entitled to be reimbursed for costs from the other party on a partial indemnity basis which is approximately: (a) 40% of total legal costs (b) 60% of total legal costs (c) 75% of total legal costs (d) 85% of total legal costs 23. Employers should provide employees with a reasonable opportunity to obtain independent legal advice when reviewing a proposed employment contract. A reasonable opportunity generally consists of at least: (a) 1–3 business days (b) 3–5 business days (c) 5–7 business days (d) 7–9 business days 24. Three elements are necessary to initially establish the tort of defamation. In the context of a negative job reference, which one of the following is NOT one of those elements? (a) The employer’s comments were untrue (b) The employer’s comments would tend to lower the former employee’s reputation in the eyes of a reasonable person

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(c) The words referred to the former employee (d) The words were communicated to at least one person other than the former employee 25. Employers who provide a negative job reference have two possible defences against the tort of defamation. If the statements were true they have the defence of “justification”. If the statements were made without malice or recklessness they have the defence of: (a) reference privilege (b) qualified privilege (c) protected privilege (d) standard of care privilege 26. In Sateria (Shandhai) Management Limited v Vinall, the former employer sued the plaintiff, Vinall, for breach of his common law duties of confidentiality and loyalty. It alleged that he had shared confidential information about a mill that was for sale with a competitor he was hoping to get employment with. In that decision the court held that: (a) Vinall had not breached his common law duties as the information was not confidential (b) Vinall had not breached his common law duties as he was not a fiduciary employee (c) Vinall had breached his common law duties but no damages were awarded because no damages had been suffered (d) Vinall had breached his common law duties and significant damages were awarded against him

True or False 1. When a contract of employment has been legally frustrated because of an employee’s prolonged disability, the employer is also free from liability under human rights legislation.

TRUE/FALSE 2. The concept of constructive dismissal is recognized under both the common law and under Ontario’s ESA. TRUE/FALSE 3. There is an unofficial “cap” of 12 months on wrongful dismissal damages for nonsupervisory employees.

TRUE/FALSE

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4. Under the common law, all non-union employees who are dismissed without just cause are entitled to receive reasonable notice (or pay in lieu of reasonable notice) upon termination.

TRUE/FALSE 5. The termination clause in Joseph’s employment contract does not provide him with as much termination notice, or pay in lieu of notice, as that required by Ontario’s Employment Standards Act. If Joseph is terminated without just cause, the clause is null and void, and Joseph should go to the Ministry of Labour to enforce his rights under the ESA. TRUE/FALSE 6. Where an employment contract contains an enforceable notice of termination provision, the employer does not have an implied duty to provide “reasonable” notice of termination or pay in lieu of such notice under the common law.

TRUE/FALSE 7. Courts may award a longer reasonable notice period to an employee who is pregnant at the time she is wrongfully terminated.

TRUE/FALSE 8. An employer should not give working notice to an employee who is unable to use the notice period to look for a new job, such as an employee who is on sickness, pregnancy, or parental leave.

TRUE/FALSE 9. In RBC Dominion Securities Inc. v Merrill Lynch Canada Inc., the Supreme Court of Canada held that only management employees who are also fiduciaries have an implied duty of good faith that includes the duty to try to retain employees.

TRUE/FALSE 10. A minor geographic relocation, such as moving an office or plant from one part of a city to another part, typically does not constitute constructive dismissal.

TRUE/FALSE

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11. Where an employer serves an offer to settle before trial that is as good as, or better than, the judgment that the wrongfully dismissed employee eventually obtains at trial, the employer may be awarded costs from the date of its offer.

TRUE/FALSE 12. The common law duty not to disclose confidential or proprietary information obtained as a result of employment applies equally to managerial and non-managerial employees.

TRUE/FALSE 13. The obligation of fiduciary employees not to take advantage of corporate opportunities presented because of their former employment does not prevent such employees from accepting a contract offered, without solicitation, by a former client.

TRUE/FALSE 14. The single most effective way for an employer to limit its liability when terminating non-union employees is to negotiate a fair and enforceable termination clause in the employment agreement.

TRUE/FALSE 15. There is no right of reinstatement for wrongful dismissal under the common law.

TRUE/FALSE 16. In Evans v Teamsters Local Union No. 31, the majority of the Supreme Court of Canada held that the duty to mitigate could require an employee to return to work for the employer that dismissed him as long as the employee received the same salary during the remainder of the notice period.

TRUE/FALSE 17. According to the Supreme Court of Canada’s decision in Honda, an employer’s insistence on dealing with an employee directly, rather than through an employee’s lawyer, is outrageous behaviour that should result in punitive damages being awarded.

TRUE/FALSE 18. Employees who have worked for short periods typically receive less than one month’s notice for each year of service.

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TRUE/FALSE 19. It is highly unlikely that a 70-year-old machine operator with 20 years’ service would receive a reasonable notice damages award in excess of 12 months.

TRUE/FALSE 20. A termination clause that does not expressly require the employer to maintain benefit coverage during the statutory notice period may be unenforceable, even if the employer in fact maintains such coverage.

TRUE/FALSE

21. Employees who allege that they have been constructively dismissed must resign and sue for damages; they cannot remain on the job and sue for damages while still employed with that employer.

TRUE/FALSE 22. “Special damages” are intended to compensate an employee for the hurt feelings and mental distress that can arise from being terminated.

TRUE/FALSE 23. Ontario’s Court of Appeal has rejected applying the tort of “negligent infliction of mental suffering” in the employment context.

TRUE/FALSE 24. Bertrand recently told his employer that he planned to retire within the next several months. If Bertrand’s employer dismisses Bertrand shortly thereafter, his stated intention to retire is a relevant factor that a court may consider in assessing what constitutes reasonable notice of termination.

TRUE/FALSE 25. Generally-speaking, an employer’s obligation to provide pay in lieu of reasonable notice of termination ends on the date the plaintiff has the opportunity to work fulltime and mitigate all of their damages, regardless of whether the plaintiff took that opportunity.

TRUE/FALSE

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26. After Kenlyn was permanently laid off from her main job, she increased the hours she worked at her “side” job. In this situation all of the monies earned from the second job are considered mitigation income that reduces the amount owed to her by her former employer.

TRUE/FALSE 27. The relatively new “duty of honesty” in contract performance means that an employer is now required to explain a decision to terminate an employee even if it is done on a without cause basis.

TRUE/FALSE 28. Jeremy is being dismissed without cause. His commission sales have increased by over 10% in each of the previous three years before his dismissal. In this situation a court would probably base the commission calculation for the reasonable notice period on his average commissions over the previous three years.

TRUE/FALSE 29. Neither expert evidence nor a recognized psychiatric illness is a prerequisite for an award of aggravated damages for mental stress.

TRUE/FALSE 30. Jury trials are not available if a wrongful dismissal claim goes to trial.

TRUE/FALSE 31. In providing a negative job reference, employers are protected by two possible defences against allegations of defamation. These are the defences of “justification” (i.e. the statements were substantially true) and “qualified privilege” (the statements were made in the context of a job reference).

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals Revised Fourth Edition Kathryn J. Filsinger

Test Bank Instructor Version

Note to Instructors: Answers to the questions appear in the Answer Keys at the end of each chapter.

2019 Emond Montgomery Publications Toronto, Canada

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Table of Contents Chapter 1: Overview of Legal Framework ........................................................................................................ 4 Multiple choice.............................................................................................................................................................................4 True or False .................................................................................................................................................................................9 Chapter 1: Answer Key ....................................................................................................................................................... 14 Chapter 2: Human Rights Issues: Hiring ........................................................................................................ 16 Multiple choice.......................................................................................................................................................................... 16 True or False .............................................................................................................................................................................. 20 Chapter 2: Answer Key ....................................................................................................................................................... 24 Chapters 3 and 4: Common Law Issues and the Employment Contract ............................................. 26 Multiple choice.......................................................................................................................................................................... 26 True or False .............................................................................................................................................................................. 30 Chapters 3 and 4: Answer Key ....................................................................................................................................... 34 Chapter 5: Human Rights Issues: Duty to Accommodate, Harassment, Accessibility Standards .............................................................................................................. 36 Multiple choice.......................................................................................................................................................................... 36 True or False .............................................................................................................................................................................. 41 Chapter 5: Answer Key ....................................................................................................................................................... 46 Chapter 6: Equity in the Workplace ................................................................................................................. 48 Multiple choice.......................................................................................................................................................................... 48 True or False .............................................................................................................................................................................. 51 Chapter 6: Answer Key ....................................................................................................................................................... 54 Chapter 7: Employment Standards Act ........................................................................................................... 56 Multiple choice.......................................................................................................................................................................... 56 True or False .............................................................................................................................................................................. 64 Chapter 7: Answer Key ....................................................................................................................................................... 71 Chapters 8 and 9: Occupational Health and Safety Act and Workplace Safety and Insurance Act (Ontario) .......................................................................................... 75 Multiple choice.......................................................................................................................................................................... 75 True or False .............................................................................................................................................................................. 80 Chapters 8 and 9: Answer Key ....................................................................................................................................... 86 Chapter 10: Privacy Inside and Outside the Workplace .......................................................................... 89 Multiple choice.......................................................................................................................................................................... 89 True or False .............................................................................................................................................................................. 92 Chapter 10: Answer Key .................................................................................................................................................... 96 Chapter 11: Navigating the Employment Relationship ............................................................................ 98 Multiple choice.......................................................................................................................................................................... 98

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True or False ........................................................................................................................................................................... 102 Chapter 11: Answer Key ................................................................................................................................................. 106 Chapter 12: Resignation and Retirement ................................................................................................... 108 Multiple choice....................................................................................................................................................................... 108 True or False ........................................................................................................................................................................... 109 Chapter 12: Answer Key ................................................................................................................................................. 112 Chapter 13: Dismissal With Cause ................................................................................................................. 113 Multiple choice....................................................................................................................................................................... 113 True or False ........................................................................................................................................................................... 115 Chapter 13: Answer Key ................................................................................................................................................. 118 Chapter 14: Termination and Severance Pay Requirements Under the Employment Standards Act ........................................................................................................ 119 Multiple choice....................................................................................................................................................................... 119 True or False ........................................................................................................................................................................... 123 Chapter 14: Answer Key ................................................................................................................................................. 127 Chapters 15 and 16: Dismissal Without Cause and Post-Employment Obligations .................. 129 Multiple choice....................................................................................................................................................................... 129 True or False ........................................................................................................................................................................... 134 Chapters 15 to 16: Answer Key ................................................................................................................................... 139

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 1: Overview of Legal Framework Multiple choice 1. Which one of the following employers is covered by the Canada Labour Code? (a) a book store (b) a mining company (c) a bank (d) a hair styling salon 2. The “common law” refers to law that is: (a) passed by a legislature (b) made by judges (c) common to both private and public sector employees (d) none of the above 3. To become a statute, a provincial bill must: (a) pass two readings in the provincial legislature (b) pass three readings in the provincial legislature (c) pass a vote in the Senate (d) receive royal assent 4. The Canadian Charter of Rights and Freedoms applies: (a) only where there is some element of government action or conduct (b) whenever someone’s rights to equality have been infringed (c) to federally regulated employees only (d) to individuals between the ages of 18 and 64 only 5. The Canadian Charter of Rights and Freedoms: (a) forms part of Canada’s Constitution (b) can be used to strike down employment laws that contravene its requirements (c) applies only where there is some element of government action or conduct (d) all of the above 6. Most employment statutes in Ontario are interpreted and enforced by: (a) Small Claims Court (b) specialized tribunals and boards (c) Ontario’s Superior Court (d) none of the above

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7. Most employees in Ontario (about 90%) are covered by: (a) provincial employment laws (b) federal employment laws (c) municipal employment laws (d) none of the above 8. A bill in the provincial legislature goes to committee after: (a) first reading (b) second reading (c) third reading (d) receiving royal assent 9. “Statute law” refers to: (a) law passed by a legislative body (b) law made by judges (c) law based on the Napoleonic Code (d) law that covers employed citizens only 10. In common law jurisdictions such as Ontario, the non-union employment relationship is viewed as being: (a) based in statute law (b) based in contract law (c) based in tort law (d) none of the above 11. Which of the following people are covered by some or all of the standards in Ontario’s Employment Standards Act? (a) a judge in Scarborough, Ontario (b) an HR analyst at Bell Canada in Toronto, Ontario (c) a bank teller in Hamilton, Ontario (d) a unionized construction worker in Brampton, Ontario 12. The Canadian Charter of Rights and Freedoms can be used to strike down employment laws that are found to contravene its requirements because: (a) it forms part of Canada’s Constitution (b) it was written in 1867 and so takes precedence over later laws (c) it outlines the legislative authority of Parliament and the provincial legislatures (d) it protects individual rights

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13. The “notwithstanding clause” in the Canadian Charter of Rights and Freedoms allows the federal or provincial governments to enact legislation that infringes the Charter if: (a) the government expressly declares that the law will operate notwithstanding the Charter (b) the law in question applies only to government employees (c) the law in question will expire in five years or less (d) none of the above 14. If you work in a grocery store in Toronto, you are covered by: (a) federal employment laws (b) Ontario employment laws (c) Toronto employment laws (d) all of the above 15. A privative clause: (a) attempts to limit the parties’ ability to have a decision of an administrative tribunal reviewed by the courts (b) entirely displaces the jurisdiction of the courts (c) attempts to protect the privacy of the parties to a legal action (d) none of the above 16. Section 15 of the Canadian Charter of Rights and Freedoms guarantees people in Canada: (a) freedom of religion (b) equality rights (c) freedom of association (d) freedom from arbitrary detention 17. Whether your workplace is covered by provincial or federal employment laws depends on: (a) the number of employees in the organization (b) whether the employer operates in more than one province or territory (c) the jurisdiction in which the employer is incorporated (d) the industry sector (e.g., mining, health, manufacturing) in which the employer operates 18. Which one of the following originates with the provincial legislature? (a) statute law (b) regulations

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(c) common law (d) the Canadian Charter of Rights and Freedoms 19. Which of the following is NOT true? (a) independent contractors can deduct their expenses for tax purposes (b) independent contractors are covered by only some of the provisions of the Employment Standards Act (c) workers are more likely to be characterized as independent contractors if they own their own tools (d) workers are more likely to be characterized as independent contractors if they work for more than one organization 20. A judge in Ontario is hearing a dispute over an employment contract. The lawyer representing the plaintiff points to a case from British Columbia that covers exactly the same issue and supports her client’s position. In this situation, this case would be: (a) binding (b) persuasive (c) distinguishable (d) none of the above 21. The Supreme Court of Canada decision in Vriend v Alberta is notable because in that decision: (a) the court used the notwithstanding clause in the Charter to deny statutory benefits to the claimant (b) the court used the Charter to strike down the definition of “spouse” in the Family Law Act (c) the court used the Charter to strike down the denial of statutory severance pay to employees whose contracts have been frustrated because of illness or injury. (d) the court applied the Charter to “read in” to a human rights law a category of people that a provincial legislature had previously excluded 22. Which of the following is NOT true of agents? (a) agents can bind an organization to a contract with customers or other parties, even without the organization’s knowledge (b) agents represent a “principal” in dealings with a third party (c) agents are almost always categorized as independent contractors (d) a human resources manager who hires a new employee is an agent 23. “Private” bills cover non-public matters. Based on its title, which of the following is a private bill? (a) Bill PR47

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(b) Bill 47e (c) Bill PM47 (d) Bill NP47 24. In the 1925 decision of Toronto Electric Commissioners v Snider, the court held that in Canada employment law falls within: (a) the federal government’s jurisdiction based on its authority over commerce. (b) the provincial government’s jurisdiction based on its authority over property and civil rights (c) the provincial government’s jurisdiction based on its authority over labour relations (d) the federal government’s jurisdiction based on its authority over peace, order and good government 25. Health and safety protections for employees working in provincially regulated workplaces in Ontario are primarily found in Ontario’s Occupational Health and Safety Act, Health and safety protections for workers in federally regulated workplaces are primarily: (a) based in the common law, rather than statute law (b) found in the Canadian Occupational Health and Safety Act (c) found in the Canada Labour Code (d) found in the Canadian Human Rights Act 26. In a civil action based on breach of contract, the burden of proof is on: (a) the plaintiff to prove, beyond a reasonable doubt, all of the elements required for a successful claim of breach of contract (b) the defendant to prove, beyond a reasonable doubt, that she did not breach the contract (c) the plaintiff to prove, on the balance of probabilities, all of the elements required for a successful claim of breach of contract (d) the defendant to prove, on the balance of probabilities, that he did not breach the contract 27. In Keenan v Canac Kitchens Limited the Ontario Court of Appeal looked at the issue of exclusivity in the context of dependent contractors and decided that: (a) workers will not be considered dependent contractors if a significant portion of their income was earned working for a competitor. (b) workers will be considered dependent contractors even if a significant portion of their income was earned working for a competitor as long as those earnings were earned several years before their business relationship with the defendant ended.

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(c) workers will not be considered dependent contractors if any portion of their income was earned working for a competitor. (d) workers will still be considered dependent contractors if, looking at the totality of the relationship, there was sufficient economic reliance on the defendant to warrant such a finding.

True or False 1. The employees of a company that is incorporated under the laws of Canada will be covered by federal employment legislation.

TRUE/FALSE 2. Governments that use the notwithstanding clause in the Canadian Charter of Rights and Freedoms must renew this declaration every five years or it will no longer be effective.

TRUE/FALSE 3. Applications for judicial review of the decisions of administrative tribunals are rarely successful.

TRUE/FALSE 4. In Canada, the federal and provincial governments appoint judges; they are not elected.

TRUE/FALSE 5. Statute law is the part of the law that has developed through the decisions of judges.

TRUE/FALSE 6. All employees who work in Ontario are covered by Ontario’s employment legislation.

TRUE/FALSE 7. In the case of Smith v Jones, Smith is the plaintiff (the person bringing the action against the other party) and Jones is the defendant.

TRUE/FALSE 8. Tort law applies only where there is already a contractual relationship between the two parties.

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TRUE/FALSE 9. General requirements of law are contained in statutes while more detailed, specific requirements are typically contained in the regulations.

TRUE/FALSE 10. Federally regulated companies are those that are incorporated under the laws of Canada rather than under a provincial law.

TRUE/FALSE 11. The Ontario Court of Appeal is the highest and final level of appeal for all disputes arising in Ontario.

TRUE/FALSE 12. Stare decisis is a common law principle that requires lower courts to follow legal decisions of higher courts where similar issues are involved.

TRUE/FALSE 13. A “respondent” is the party opposing an appeal of a previous decision.

TRUE/FALSE 14. Employees of a federally regulated employer who work in Nova Scotia will be covered by the employment laws of Nova Scotia.

TRUE/FALSE 15. All pieces of provincial legislation automatically come into force on the day that they receive royal assent.

TRUE/FALSE 16. The Canadian Charter of Rights and Freedoms is part of Canada’s Constitution.

TRUE/FALSE 17. Where there is a conflict between the common law and statute law, the common law governs.

TRUE/FALSE

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18. A tort occurs whenever there is a breach of contract.

TRUE/FALSE 19. In Ontario Nurses’ Association v Mount Sinai Hospital, the Ontario Court of Appeal held that denying ESA severance pay to employees whose contracts have become frustrated because of illness or injury does not violate the Charter’s equality provision because the dominant purpose of severance pay is to compensate employees who will return to the workforce.

TRUE/FALSE 20. Private members’ bills rarely pass.

TRUE/FALSE 21. It is easier for a government to change a regulation than to change a statute.

TRUE/FALSE 22. The most important factor in creating a valid independent contractor relationship is having a properly drafted contract.

TRUE/FALSE 23. Independent contractors are not covered by the pregnancy or parental leave provisions of Ontario’s Employment Standards Act. TRUE/FALSE 24. All bills require royal assent before they can become a statute.

TRUE/FALSE 25. An individual who is hired for a specific period or task is automatically considered an independent contractor under the law.

TRUE/FALSE 26. An independent contractor is entitled to the same rights and remedies as employees under Ontario’s employment standards legislation.

TRUE/FALSE

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27. As long as the contract clearly establishes that the parties intend their relationship to be one of independent contractor and principal, courts and tribunals will usually accept their characterization of the relationship.

TRUE/FALSE 28. In Jones v Tsige, the Ontario Court of Appeal recognized a new tort of “intrusion upon seclusion.”

TRUE/FALSE 29. To maintain solicitor–client privilege, when a lawyer is retained as part of an investigation into workplace misconduct, the retainer agreement should clearly state that its dominant purpose is to ensure a proper and timely investigation.

TRUE/FALSE 30. A private member’s bill that relates to employment law must be introduced into the legislature by the Minister of Labour.

TRUE/FALSE 31. Where a court looks to a scholarly article for assistance in interpreting a statute, it is said to be using an “external aid” for interpretation.

TRUE/FALSE 32. “Gender identity” is not one of the protected grounds set out in the equality section (s 15) of the Charter of Rights and Freedoms but it is likely that a court would consider it an analogous ground and thereby covered.

TRUE/FALSE 33. The first step in the process of analyzing whether or not a statute violates section 15 of the Canadian Charter of Rights and Freedoms is determining if it is a reasonable limit in a free and democratic society.

TRUE/FALSE 34. Defamation is an example of an unintentional tort.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

35. Under the 2017 amendments to the Employment Standards Act, it is now an offence for an employer to misclassify a worker as an employee when they are in actual fact an independent contractor.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 1: Answer Key Multiple choice 1. c 2. b 3. d 4. a 5. d 6. b 7. a 8. b 9. a 10. b 11. d 12. a 13. a 14. b 15. a 16. b 17. d 18. a 19. b 20. b 21. d 22. c 23. a 24. b 25. c 26. c 27. d True or False 1. false 2. true

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

3. true 4. true 5. false 6. false 7. true 8. false 9. true 10. false 11. false 12. true 13. true 14. false 15. false 16. true 17. false 18. false 19. false 20. true 21. true 22. false 23. true 24. true 25. false 26. false 27. false 28. true 29. false 30. false 31. true 32. true 33. false 34. false 35. false Copyright © 2019 Emond Publications. All rights reserved.

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

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Chapter 2: Human Rights Issues: Hiring Multiple choice 1. Under Ontario’s Human Rights Code, discrimination in employment is prohibited on: (a) 16 grounds (b) 15 grounds (c) 14 grounds (d) 13 grounds 2. According to the Supreme Court of Canada, discrimination on the basis of “family status” includes discrimination based on: (a) the status of having a family (b) the identity of one’s family members (c) a and b (d) none of the above 3. If pre-employment medical examinations are performed, they should be done: (a) before the job application is filled out (b) at the end of the job interview (c) after a conditional offer of employment is made (d) none of the above 4. In the Mottu decision, the arbitrator decided that requiring the complainant to wear a bikini top at work for the “beach theme” evening: (a) constituted discrimination based on sex because only female servers were required to wear gender-specific outfits of a sexual nature (b) did not constitute discrimination because the employer left it up to her whether she worked that evening or not (c) did not constitute discrimination because a night club is a special service organization and therefore can discriminate on the basis of gender (d) none of the above 5. Which of the following is NOT covered by one of the prohibited grounds of discrimination in employment under Ontario’s Human Rights Code? (a) physical appearance (b) pregnancy (c) creed (religion) (d) perceived disability 6. During a job interview, it is NOT acceptable to request information concerning:

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(a) work experience (b) home address (c) preferred form of address (e.g., Miss, Mrs., Ms.) (d) highest level of education achieved 7. On a job application form, it is NOT acceptable to request one of the following: (a) work history (b) name (c) home address (d) name of elementary school attended 8. Under Ontario’s current Human Rights Code, an employer may discriminate against a job applicant or employee based on age: (a) when the person is under 18 years of age (b) when the person is under 18 or over 64 years of age (c) when the discrimination is unintentional (d) never 9. Section 14 of Ontario’s Human Rights Code covers “special programs” and it: (a) requires Ontario employers to have a special program designed to relieve hardship or economic disadvantage for certain disadvantaged groups (b) allows Ontario employers to have a special program designed to relieve hardship or economic disadvantage for certain disadvantaged groups (c) requires Ontario employers to hire members of disadvantaged groups regardless of their qualifications (d) none of the above 10. Under Ontario’s Human Rights Code, the term “disability” generally does NOT include: (a) perceived disabilities (b) psychological problems (c) drug or alcohol dependencies (d) the flu 11. Job applicants should be asked for their social insurance number: (a) on the application form (b) during the job interview (c) after a conditional offer of employment is made (d) never

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12. The preamble to Ontario’s Human Rights Code sets out: (a) the five social areas in which discrimination is prohibited (b) the prohibited grounds of discrimination (c) the intent of the Code (d) all of the above 13. In Ontario Human Rights Commission v Christian Horizons, the Ontario Divisional Court found that the employer, an evangelical Christian organization that operated residential homes for people with developmental disabilities: (a) could restrict employment to individuals who followed its values because it was a special service organization (b) could restrict employment to individuals who followed its values as long as following those values was a BFOR for the position (c) could not restrict employment to individuals who followed its values because discriminating against someone based on sexual orientation is specifically prohibited under the Code (d) could not restrict employment to individuals who followed its values because it was a publicly funded general residential care provider and did not require its residents to comply with the same restrictions 14. Which of the following situations is probably NOT covered by Ontario’s Human Rights Code? (a) Sadie is dismissed for being away from work for three days with the flu (b) Bert is suspended for three days for taking a day off work for a religious holiday because the employer knows that other employees of the same faith did not take that day off (c) Nancy is demoted for breastfeeding her baby at work (d) Ernie is dismissed after undergoing a sex change operation 15. Applications under Ontario’s Human Rights Code are made to which one of the following bodies? (a) the Ontario Labour Relations Board (b) the Ontario Human Rights Commission (c) the Human Rights Tribunal (d) the Ministry of Labour 16. Your employer intends to deny a 17-year-old female job applicant a job in customer service because she does not believe the student is mature enough to handle customer complaints. If the employer takes this action, which one of the following is true? (a) the employer has violated the Human Rights Code because the job applicant is female and therefore from a traditionally disadvantaged group

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(b) the employer has not violated the Human Rights Code because in these circumstances, it is clearly a BFOQ that the person be mature enough to handle the job duties (c) the employer has violated the Human Rights Code unless her or she can show that he or she could not accommodate the job applicant without suffering undue hardship (d) the employer has not violated the Human Rights Code because the Code does not protect employees or applicants under the age of 18 from age-based discrimination 17. With respect to the two newest grounds of prohibited discrimination—gender identity and gender expression—which one of the following is true? (a) an employer should require medical documentation before accommodating an employee on the basis of gender identity (b) an employer should insist that an employee who is transitioning to become a woman, for example, be treated as a man until sex reassignment surgery is complete (c) a workplace rule that prohibits cross-dressing is acceptable if the employer can prove that it is based on customer preferences (d) how an employee self-identifies is the key factor in triggering the duty to accommodate on the basis of gender identity 18. Which one of the following is not allowed under the Ontario Human Rights Code? (a) a nepotism policy that gives preference for student employment to the children of current employees (b) a nepotism policy that prevents closely related employees from working in the same area (c) an affirmative action program that allows an employer to prefer or promote people who are from an historically disadvantaged group (d) parents who refuse to hire a live-in nanny for their young children based on one of the prohibited grounds of discrimination 19. Religious beliefs and practices are protected against discrimination as long as: (a) those beliefs are sincerely held and those practices are an essential element in that religion (b) those beliefs are sincerely held (c) the majority of adherents to that faith engage in those same practices (d) those practices are required of all adherents to that faith 20. Which one of the following is NOT covered under the prohibited ground of “sex”: (a) someone who is discriminated against based on being pregnant

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(b) someone who is discriminated against based on trying to become pregnant, including someone who is receiving fertility treatments (c) someone who is discriminated against based on recovering from childbirth (d) someone who is discriminated against based on their gender identity 21. Under which one of the following Ontario statutes are employers prohibited from requiring employees to wear high heeled shoes? (a) the Ontario Human Rights Code (b) the Occupational Health and Safety Act (c) the Employment Standards Act (d) the Workplace Safety and Insurance Act 22. To prove a “prima facie” case of discrimination, the applicant must establish three elements. Which one of the following is NOT one of those three elements: (a) the applicant must show that she is a member of a group protected by the Code (b) the applicant must show that she suffered adverse (negative) treatment (c) the applicant must show that the respondent employer intended to discriminate against her (d) the applicant must show that there was a connection between the adverse treatment and the protected ground of discrimination 23. Which one of the following grounds of discrimination covers how a person publicly represents their gender? (a) gender identity (b) gender expression (c) sex (d) sexual orientation

True or False 1. A recruiter should not ask a job applicant if he or she is able to relocate (even if that is a BFOR) until a conditional offer of employment is made.

TRUE/FALSE 2. Discrimination on the basis of citizenship is allowed where the employer imposes a preference that a supervisor is, or intends to become, a Canadian citizen.

TRUE/FALSE 3. A person who is discriminated against in employment because he is a member of the Green Party may file an application under Ontario’s Human Rights Code.

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TRUE/FALSE 4. Although language is not one of the prohibited grounds of discrimination under Ontario’s Human Rights Code, it can be an element of a complaint based on one or more of the other grounds.

TRUE/FALSE 5. Ontario’s Human Rights Code applies only where there is an element of government action or conduct.

TRUE/FALSE 6. If operating a vehicle is an essential job duty, the requirement for a valid driver’s licence may be referred to in an advertisement, even though it bars applicants who are unable to obtain a driver’s licence because of a disability.

TRUE/FALSE 7. Under Ontario’s Human Rights Code, the prohibited ground of “disability” includes psychiatric, as well as physical, disabilities.

TRUE/FALSE 8. On a job application form, an employer may ask whether the applicant has ever been convicted of a crime.

TRUE/FALSE 9. An employer and a union may contract out of certain provisions of Ontario’s Human Rights Code.

TRUE/FALSE 10. A special service organization that primarily serves a group protected by Ontario’s Human Rights Code may choose to employ only members of that group, regardless of the position.

TRUE/FALSE 11. It is acceptable to ask a job applicant if she is legally entitled to work in Canada at the job interview stage, but not on the job application form.

TRUE/FALSE

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12. Denying an employee a training opportunity because she is 65 is a contravention of Ontario’s Human Rights Code.

TRUE/FALSE 13. Under Ontario’s Human Rights Code, customer preference is not one of the factors considered in deciding if a job-related standard is reasonable and bona fide.

TRUE/FALSE 14. It is never appropriate to ask a job applicant during an interview whether he or she has a record of convictions under a provincial statute such as the Highway Traffic Act. TRUE/FALSE 15. The special service organization exemption does not apply to private businesses.

TRUE/FALSE 16. An employer may automatically reject a job candidate on the basis that he or she is overqualified for the position because education is not one of the prohibited grounds of discrimination under the Code.

TRUE/FALSE 17. Pre-employment drug tests are prima facie discrimination on the ground of perceived disability.

TRUE/FALSE 18. As long as it is non-profit, an organization that falls within the “special services organization” exception can discriminate against a job candidate based on any of the grounds found in the Human Rights Code.

TRUE/FALSE 19. Once an employee establishes a prima facie case of discrimination, the onus moves to the employer to show, beyond a reasonable doubt, that it did not discriminate contrary to the Human Rights Code.

TRUE/FALSE 20. Under the Ontario Human Rights Code, it is sometimes acceptable to ask during an interview whether the applicant is a Canadian citizen.

TRUE/FALSE

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21. Teresa is refused a job because of her association with an anti-poverty group. In this situation, the employer has violated the Ontario Human Rights Code.

TRUE/FALSE 22. Under section 17 of the Ontario Human Rights Code, only essential job duties can be considered in determining a job applicant’s ability to perform the job.

TRUE/FALSE 23. When a discriminatory factor such as age played only a minor part in the employer’s decision not to hire a job candidate, the Tribunal will find in favour of the employer.

TRUE/FALSE 24. Although “language” is not one of the 16 prohibited grounds of discrimination set out in Ontario’s Human Rights Code, generally an employer cannot discriminate on the basis of language unless language proficiency is a BFOR for the employee’s role.

TRUE/FALSE 25. The prohibited ground of “creed” protects individuals from discrimination on the basis of their religion or faith, as well as on the basis of being an atheist or agnostic.

TRUE/FALSE 26. Once an applicant has made out a prima facie case of discrimination in employment on a protected ground, the only remaining legal question is what remedy the adjudicator will impose on the respondent employer.

TRUE/FALSE 27. In Ontario, obesity is only considered a disability if it results from an underlying physical condition.

TRUE/FALSE 28. Provincially-regulated employers in Ontario are expressly prohibited from using genetic tests to see if a prospective employee is genetically predisposed to certain diseases.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 2: Answer Key Multiple choice 1. a 2. c 3. c 4. a 5. a 6. c 7. d 8. a 9. b 10. d 11. c 12. c 13. b 14. a 15. c 16. d 17. d 18. d 19. b 20. d 21. b 22. c 23. b

True or False 1. false 2. false 3. false 4. true 5. false 6. true

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

7. true 8. false 9. false 10. false 11. false 12. true 13. true 14. false 15. true 16. false 17. false 18. false 19. false 20. true 21. false 22. true 23. false 24. true 25. true 26. false 27. true 28. false

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

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Chapters 3 and 4: Common Law Issues and the Employment Contract Multiple choice 1. The common law tort of “allurement” refers to a situation where an employer: (a) hires the employee without properly checking references (b) breaches the employment contract before it begins (c) entices the job applicant from another job through aggressive recruiting or inflated promises (d) none of the above 2. The restrictive clause that courts are least likely to enforce is: (a) a non-competition clause (b) a non-solicitation clause (c) a non-disclosure clause (d) an ownership of intellectual property clause 3. The rule of contra proferentem means that: (a) ambiguous or unclear language in a contract will usually be interpreted against the party that drafted it (b) ambiguous or unclear language in a contract will usually be interpreted in favour of the employee (c) ambiguous or unclear language in a contract will make that provision unenforceable (d) none of the above 4. A “severability clause” in a written employment contract means that: (a) the terms of a severance agreement are set out in the contract (b) if any part of the agreement is ruled invalid, the rest of the agreement remains enforceable (c) the employment contract sets out all of the terms of the contract (d) none of the above 5. If a written employment contract does not specify a probationary period, and a dispute arises, a court will find that under the common law: (a) there is a probationary period of 3 months (b) there is a probationary period of 6 months (c) there is a probationary period of one year (d) there is no probationary period

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6. It is best to have a written employment contract signed: (a) just after the employee starts work (b) at the end of the employee’s probationary period (c) before the employee starts work (d) before the employee gets a chance to read it 7. In common law jurisdictions such as Ontario, the non-union employment relationship is viewed as being: (a) based in statute (b) based in contract (c) based in tort (d) none of the above 8. Which of the following is NOT true of a non-competition clause? (a) it is a restrictive covenant (b) it is difficult to enforce (c) if broken, it might lead to a claim against the employee for breach of contract (d) it protects an employer’s right to own the employee’s inventions 9. From a legal point of view, the practice of checking a job applicant’s references relates to: (a) complying with requirements found in statute (b) avoiding common law claims (c) avoiding human rights claims (d) none of the above 10. Which one of the following is correct with respect to background checks (e.g., police checks, reference checks, credit checks, education checks): (a) most types of background checks should be done after a conditional offer of employment is made (b) all types of background checks should be done after a conditional offer of employment is made (c) most types of background checks should be done immediately before a conditional offer of employment is made (d) all types of background checks should be done immediately before a conditional offer of employment is made 11. A temporary employment agency may only charge a client for hiring an agency employee if it does so within: (a) the first 6 months of the assignment

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(b) the first 9 months of the assignment (c) the first 12 months of the assignment (d) none of the above 12. To be enforceable, an employment contract requires “consideration.” This means that: (a) something of value must be exchanged for the promises given (b) the parties must not be unreasonable in the terms imposed (c) the employer must consider the employee’s situation in setting the terms (d) none of the above 13. Which one of the following clauses found in many written employment contracts is typically the most contentious? (a) severability clause (b) probationary clause (c) governing law clause (d) termination clause 14. Which of the following is NOT true? (a) the more a job exposes others to harm, the stronger the employer’s duty to check references becomes (b) before checking references, an employer should obtain the written permission of the applicant (c) inquiries made during reference checking should be tailored to each particular applicant (d) a paper trail documenting reference checks should include references who did not respond, as well as information received from those who did respond 15. The following clause is part of your employment contract: “Any modification to this Agreement must be in writing and signed by the parties or it shall have no effect and shall be void.” Which one of the following is true? (a) this is an “entire agreement clause,” whereby a court can only look at the words in the contract; oral conversations and promises will not be considered (b) this is a “severability clause,” and it ensures that if one provision in a contract is unenforceable, the rest of the contract will still be enforceable (c) this is a clause that primarily protects the interests of the employee (d) this is a clause that courts rarely enforce because it too often favours the employer 16. Which one of the following types of background checks should generally be done before a conditional offer of employment has been made? (a) education checks (b) job reference checks Copyright © 2019 Emond Publications. All rights reserved.

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(c) credit checks (d) police record checks 17. What is the name of the clause that typically appears at the end of a job application form that states that the information provided is true and complete to the applicant’s knowledge and that a false statement may lead to dismissal for cause? (a) a promissory clause (b) a reference confirmation clause (c) a good faith clause (d) an attestation clause 18. A prospective employer who is considering hiring an employee who is contractually bound to provide significant advance notice of resignation to his current employer must be particularly aware of the following common law action: (a) inducing breach of contract (b) allurement (c) anticipatory breach of contract (d) negligent misrepresentation 19. Generally speaking, an employer’s obligation to provide reasonable notice of termination to a non-unionized employee is: (a) an implied term of the employment contract (b) an express term of the employment contract (c) a contingent term of the employment contract (d) an ancillary term of the employment contract 20. What is the name of the contract terms that are found in such things as employee handbooks, HR policy manuals, retirement plans, and benefits handbooks. (a) implied terms (b) ancillary terms (c) contingent terms (d) express terms 21. Pia’s initial offer letter, which she accepted, did not contain a termination clause.

However, when she received the follow-up formal employment contract, she noticed that it contained a termination clause limiting her to minimum statutory entitlements on termination. In this situation, which one of the following is true? (a) the termination clause is likely enforceable because it is contained within the formal employment contract that governs the employment relationship (b) the termination clause is likely not enforceable because Pia did not receive new consideration for this new term

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(c) the termination clause is likely enforceable because the employment contract was written after the offer letter and therefore supersedes (overrides) the original offer letter (d) the termination clause is likely not enforceable because a non-union employee cannot be limited to the statutory minimum entitlements on termination.

22. Howard’s written employment contract was for a five-year term and it did not contain a termination clause. Half way into his fixed term contract his employer dismissed Howard on a without cause basis due to a slowdown in its business. In this situation, what monetary award would Howard probably be entitled to receive? (a) reasonable notice damages, as determined by the court (approximately 4 months pay) (b) payment for the remainder of his fixed term contract (i.e. 2 ½ years’ pay) (c) statutory entitlements only (2 weeks’ pay) as the employer had acted in good faith, dismissing him for justifiable business reasons (d) none of the above 23. In Wood v Fred Deeley Imports Ltd the Ontario Court of Appeal noted that if employers can remedy illegal termination clauses by making additional, voluntary payments upon termination: (a) they will be more likely to make those payments and thereby avoid a law suit (b) they will be less likely to take advantage of employees during pre-employment negotiations (c) they will have little incentive to draft legal and enforceable ones at the beginning of the employment relationship (d) they will be less likely to negotiate a termination clause in the employment contract in the first place

True or False 1. If an employment contract does not contain a clause setting out a probationary period, a judge will read such a clause into the contract and assume a probationary period of a minimum of three months.

TRUE/FALSE 2. A restrictive covenant is an agreement between the employer and employee that sets limits on what the employee may do even after he or she leaves the employment relationship.

TRUE/FALSE

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3. If an employment contract does not contain a termination clause, a judge will read into the contract an implied requirement that the employer provide reasonable notice of termination.

TRUE/FALSE 4. If an employer withdraws a job offer because of changed economic circumstances, it may still be legally liable for reasonable notice of termination of the employment contract.

TRUE/FALSE 5. As long as an employment contract is in writing, only two elements are needed to form a binding agreement—offer and acceptance.

TRUE/FALSE 6. An employer will be liable for negligent misrepresentation even if the person who made the misrepresentation honestly believed the statement was true.

TRUE/FALSE 7. Only written employment contracts are legally enforceable.

TRUE/FALSE 8. In Egan v Alcatel Canada Inc., the court decided that the new employer should not be liable for greater pay in lieu of reasonable notice damages based on the tort of inducement because it was her former colleagues, not the new employer, who had misled the plaintiff by failing to reveal that they had a financial stake in her taking the new job.

TRUE/FALSE 9. Lawsuits against former employers for giving negative references are rare.

TRUE/FALSE 10. Under the common law, an employee has an implied duty to provide reasonable notice of resignation.

TRUE/FALSE

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11. It is best to have a written employment contract signed by a new employee just after that employee starts work.

TRUE/FALSE 12. In Ontario, an employer may refuse to hire someone who has an unpardoned criminal record, even if the record does not relate to the job being applied for.

TRUE/FALSE 13. Under Ontario law, an employer who rejects an applicant for whom it has done a credit check may be required to advise the applicant of all information that it considered in the job application process, not just the credit report information.

TRUE/FALSE 14. An employer in Ontario is required to conduct a police check for all job applicants whose job duties include handling money.

TRUE/FALSE 15. The only background check that should be done after a conditional offer of employment is the job reference check.

TRUE/FALSE 16. To be considered a full-time employee in Ontario, an employee must work at least 35 hours per week for that employer.

TRUE/FALSE 17. Under the contra proferentem rule, ambiguous language in the employment contract will tend to be interpreted against the interests of the party who drafted that contract.

TRUE/FALSE 18. To be liable for committing the tort of fraudulent misrepresentation during the hiring process, the employer must have known that the misrepresentation was untrue.

TRUE/FALSE 19. The existence of a probationary clause in an employment contract undermines an employee’s later claim that they were improperly induced into leaving their former, secure employment.

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TRUE/FALSE 20. To be liable for inducing breach of contract the new employer must have either intended such a breach or was substantially certain that such a breach would result from its conduct.

TRUE/FALSE 21. Subject to certain exceptions, employers in Ontario must pay part-time employees the same rate of pay as full-time employees who are performing the same or substantially the same work under substantially the same working conditions.

TRUE/FALSE 22. Probationary clauses should be carefully drafted, specifically setting out what is precisely meant by the term “probation”. Otherwise, a court will probably find the term too ambiguous to be enforceable.

TRUE/FALSE 23. Non-competition clauses found in independent contractor agreements cannot be subject to the same level of judicial scrutiny as those found in employment agreements.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapters 3 and 4: Answer Key Multiple choice 1. c 2. a 3. a 4. b 5. d 6. c 7. b 8. d 9. b 10. a 11. a 12. a 13. d 14. c 15. a 16. b 17. d 18. a 19. a 20. b 21. b 22. b 23. c True or False 1. false 2. true 3. true 4. true 5. false 6. true

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

7. false 8. false 9. true 10. true 11. false 12. true 13. true 14. false 15. false 16. false 17. true 18. true 19. true 20. true 21. true 22. false 23. false

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 5: Human Rights Issues: Duty to Accommodate, Harassment, Accessibility Standards Multiple choice 1. Which party (or parties) has the burden of proof to show that accommodating an employee would constitute “undue hardship”? (a) the employee seeking accommodation (b) the employer asked to provide accommodation (c) the Ontario Human Rights Commission (d) the Human Rights Tribunal 2. The Ontario Human Rights Commission considers “undue hardship” shown where the cost of the accommodation would: (a) exceed $500 (b) exceed $10,000 (c) exceed $50,000 (d) substantially affect the viability of the employer’s business 3. Remedies under Ontario’s Human Rights Code can include: (a) ordering the employer to hire or reinstate an individual (b) compensation for lost earnings (c) compensation for non-monetary damages (d) all of the above 4. Under Ontario’s Human Rights Code, an employer is automatically responsible for: (a) workplace harassment based on a prohibited ground (b) workplace discrimination based on a prohibited ground (c) both of the above (d) neither of the above 5. The Ontario Human Rights Tribunal may refuse to deal with an application if the applicant has waited longer than: (a) 6 months from the last incident of discrimination to file the application (b) 9 months from the last incident of discrimination to file the application (c) 12 months from the last incident of discrimination to file the application (d) 24 months from the last incident of discrimination to file the application 6. The majority of decisions on human rights applications in Ontario are made by: (a) arbitrators appointed under collective agreements

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(b) the Ontario Human Rights Commission (c) the Ontario Human Rights Tribunal (d) Ontario’s Superior Court 7. Providing a voice synthesizer to help a physically disabled employee perform an essential job duty is an example of: (a) constructive discrimination (b) undue hardship (c) a BFOQ (d) reasonable accommodation 8. Under Ontario’s Human Rights Code, damages for mental anguish cannot exceed: (a) $1,000 per violation (b) $5,000 per violation (c) $10,000 per violation (d) none of the above 9. Under Ontario’s Human Rights Code, sexual harassment covers a broad range of comments or conduct. Whether any given comment or conduct constitutes sexual harassment depends on: (a) whether the harasser intended it to be offensive (b) whether a reasonable person in the recipient’s position would find the comments or conduct offensive (c) whether the recipient found the comments or conduct offensive (d) none of the above 10. In the Hydro-Québec case, the Supreme Court of Canada decided that the “duty to accommodate” requires an employer to: (a) make reasonable and moderate efforts at accommodation (b) accommodate up to the point where further accommodation is impossible (c) prove that it is impossible to accommodate the individual further without incurring undue hardship (d) none of the above 11. Which of the following is NOT true during an investigation of alleged sexual harassment? (a) witnesses should be interviewed together so that they can confirm or correct each other’s statements (b) witnesses should be interviewed separately (c) witnesses should be asked non-leading questions

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(d) witnesses should be asked to put their statements in writing 12. Where an employee files a human rights application with the Ontario Human Rights Tribunal, under the Code, an employer generally has: (a) 35 days to respond (b) 45 days to respond (c) 55 days to respond (d) 60 days to respond 13. In CEP v Irving Pulp and Paper Ltd., the Supreme Court of Canada ruled on the employer’s random alcohol testing policy. In that case, it decided that: (a) random drug and alcohol testing is justified as a BFOQ as long as the employer proves that the workplace is dangerous (b) random drug and alcohol testing can only be justified when the employer proves that the workplace is dangerous and that there is a serious problem with alcohol and drugs in the workplace (c) for privacy reasons, there are no workplaces in which random drug and alcohol testing is justified (d) none of the above 14. Employees who seek accommodation under Ontario’s Human Rights Code have a duty to cooperate in the accommodation process. Which one of the following is NOT part of that duty? (a) to request accommodation from the employer (b) to provide information to the employer regarding relevant restrictions or limitations (c) to provide the employer with a diagnosis of the disability from a qualified health care professional (d) none of the above 15. The human rights concept of “inclusive design” specifically means that: (a) employers must include disabled employees in their decision-making processes around the duty to accommodate (b) employers must be prepared to make exceptions to their employment policies when it is necessary to properly accommodate a disabled employee or job applicant (c) employers must keep special needs and requirements in mind when developing workplace rules and practices (d) all of the above 16. Applications under Ontario’s Human Rights Code are made to which one of the following bodies?

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(a) the Ontario Labour Relations Board (b) the Ontario Human Rights Tribunal (c) the Ontario Human Rights Commission (d) the Ministry of Labour 17. Firing an employee for filing a human rights complaint is called: (a) constructive discrimination (b) a reprisal (c) systemic discrimination (d) adverse impact discrimination 18. In Johnstone v Canada, the Federal Court of Appeal laid out several elements that a complainant must prove to establish a prima facie case of discrimination based on an employer’s failure to accommodate his or her employee’s childcare obligations.

Which one of the following is NOT one of those elements? (a) the complainant has already made reasonable efforts to meet his or her childcare obligations (b) the child is under the complainant’s care and supervision (c) the complainant’s childcare obligations include attending extracurricular activities that a parent would reasonably be expected to attend (d) the workplace interferes with the fulfillment of the employee’s legal childcare obligations 19. Under the Accessibility for Ontarians with Disabilities Act, 2005, the one workplace standard that came into effect in 2012 for all employers, regardless of size, relates to: (a) recruitment, assessment, and selection (b) workplace emergency response information (c) accessible formats and communication supports (d) performance management 20. Which one of the following is an example of ableism: (a) Nick’s employer allows him to work a flexible work schedule for health-related reasons (b) Carla’s employer modifies her duties to accommodate her physical disability (c) John, who uses a wheelchair, is unable to attend a training session held on the second floor because there is no elevator at his workplace (d) Linda’s employer bundles together job duties currently being performed by other employees to create a job that Linda is physically capable of performing

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21. In Bottiglia v Ottawa Catholic School Board the key issue was whether the employer could request that the employee undergo an independent medical examination (IME).

In that case the court held that: (a) an employer is entitled to request an IME whenever it thinks that a second opinion would be helpful (b) an employer is entitled to request an IME where it has legitimate concerns regarding the reliability of the employee’s treating expert (c) an employer is never entitled to request an IME as this would violate the employee’s privacy and human rights (d) an employer is entitled to request an IME whenever the employee is in receipt of employer-paid sick benefits 22. Which one of the following is NOT true concerning an employer’s process for responding to an employee’s request for accommodation: (a) there should be one process for responding to all requests for accommodation (b) it should be a two-way dialogue (or a three-way dialogue where the employee is unionized) (c) confidentiality should be maintained (d) it must provide that employees receive their preferred accommodation unless it would result in undue hardship to the employer 23. Which one of the following statements related to an employer’s duty to accommodate the use of marijuana for medical purposes is NOT true: (a) an employer may be required to allow an employee to smoke marijuana while on the job (b) an employer may be required to allow an employee to smoke marijuana during working hours (c) an employer may explore whether the marijuana may be taken in other forms, such as ingesting it in food (d) an employer may be required to consider a modified work schedule or leave of absence during the period of treatment 24. In French v Selkin Logging Ltd the human rights tribunal found that accommodating French’s medical use of marijuana at his safety sensitive workplace constituted undue hardship because: (a) French was only pretending to have a disability so his use of marijuana at work was purely recreational (b) other employees were complaining about French’s frequent use of marijuana at work as they believed it was a safety hazard (c) French did not have medical authorization for using marijuana and did not advise his employer that he was using an impairing substance at work

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(d) French was in a motor vehicle accident that was caused by his impairment at work 25. Currently the test in Ontario for establishing a prima facie case of discrimination based on family status in a child care situation is based on: (a) the four-part Johnstone test (which includes asking whether the employee made reasonable efforts to self-accommodate – i.e. to look for suitable child care – before making the request for accommodation) (b) the Health Sciences test (which requires asking whether the employer’s rule or requirement “significantly interferes with a substantial family obligation”) (c) the Misetich test (which rejects asking whether the employee made efforts to selfaccommodate first) (d) the Devaney test (which requires the employer to allow the employee to work from home) 26. According to the OHRC Policy on drug and alcohol testing 2016, the components of a justifiable testing policy include all of the following except: (a) the policy is put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored (b) the policy allows the employer to terminate an employee but only after that employee has tested positive for drugs or alcohol at least twice within a six-month time period (c) testing is used as part of a larger assessment of drug or alcohol addiction (e.g. including an employee assistance program) (d) testing is used only in limited circumstances, such as where there is reason to suspect impairment 27. In Stewart v Elk Valley Coal Corp the Supreme Court of Canada rejected the employee’s argument that his addiction prevented him from disclosing his cocaine use to his employer because: (a) drug addicts still retain the capacity to disclose (b) based on the evidence in this case it found that Stewart retained the capacity to disclose (c) employers in safety sensitive workplaces are entitled to have zero tolerance policies for substance abuse (d) the employer’s alcohol and drug policy offered support and assistance with rehabilitation to employees who proactively self-disclose their addiction

True or False 1. The Human Rights Code is usually enforced by individuals filing applications, and the Employment Standards Act is usually enforced by individuals filing complaints.

TRUE/FALSE

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2. Arbitrators appointed under collective agreements make the majority of human rights decisions in Ontario.

TRUE/FALSE 3. “Harassment” under Ontario’s Human Rights Code usually requires a course of vexatious comment or conduct, rather than a single incident.

TRUE/FALSE 4. Under Ontario’s Human Rights Code, health and safety is one of the factors considered in determining undue hardship.

TRUE/FALSE 5. In Ontario, courts are more likely to uphold an employer’s alcohol- and drug-testing policy if it states that such tests are carried out on a random basis.

TRUE/FALSE 6. As part of its duty to accommodate, an employer may be required to create a new position by “cobbling together” a number of less demanding tasks performed by other employees.

TRUE/FALSE 7. Under the Ontario Human Rights Code, the employer must accommodate an employee up to the point of undue hardship to perform both the essential and the nonessential functions of the job.

TRUE/FALSE 8. Courts and tribunals generally do not require small employers to accommodate employees who require time off from work for religious observance.

TRUE/FALSE 9. Clients or customers who act in a discriminatory or harassing way are not liable under the Human Rights Code.

TRUE/FALSE 10. Ontario’s Human Rights Code prohibits employers from terminating the employment of employees for poor attendance where their absences relate to substance abuse.

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TRUE/FALSE 11. To comply with Ontario’s Human Rights Code prohibiting discrimination based on creed, employers must give employees who are not of the (western) Christian faith at least two paid days off for their religious observances annually.

TRUE/FALSE 12. In the Health Sciences Association of BC v Campbell River case, the court decided that an employer has a duty to accommodate wherever its rule or requirement interferes with an employee’s family obligations.

TRUE/FALSE 13. An employer is only responsible for harassment of which it is aware.

TRUE/FALSE 14. The Human Rights Legal Support Centre provides free legal advice to applicants but not to respondents in a human rights action.

TRUE/FALSE 15. An employer should only investigate a complaint of harassment with the consent of the individual being harassed.

TRUE/FALSE 16. In unionized workplaces, unions, as well as employers and employees, have a legal obligation to participate in the accommodation process.

TRUE/FALSE 17. The duty to accommodate contains both procedural and substantive elements but the substantive element is the most important.

TRUE/FALSE 18. For a workplace to be considered “poisoned,” it is not necessary that the employee making the claim be the target of the insulting or degrading comments or actions.

TRUE/FALSE

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19. An employee can only pursue an action for discrimination or harassment in the courts if it is tied to a civil lawsuit such as a wrongful dismissal action.

TRUE/FALSE 20. Like Ontario’s Human Rights Code, the Accessibility for Ontarians with Disabilities Act, 2005 is based on a complaint-driven enforcement model.

TRUE/FALSE 21. Under the Accessibility for Ontarians with Disabilities Act, 2005, employers with 25 or more employees are required to develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

TRUE/FALSE 22. If an employer can show that an accommodation would result in undue hardship, the person with the disability should be given the option of providing or paying for that portion of the accommodation that results in undue hardship.

TRUE/FALSE 23. Unless an employer can show that accommodation would result in undue hardship, there is no limit to an employee’s right to accommodation.

TRUE/FALSE 24. An employer’s duty to accommodate only applies to accommodating employees to be able to perform their own position, not to accommodate them in another position within the workplace.

TRUE/FALSE 25. Sonja has just told her employer that she has a drug addiction problem and medical documentation provided by her physician confirms this. As part of its duty to accommodate, her employer must pay for the costs of a rehabilitation program unless doing so would result in undue hardship.

TRUE/FALSE 26. Sherona asks her employer to accommodate her need for a flexible work schedule while she is going through fertility treatments. Her employer may accommodate her if

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it wishes but it is not legally obliged to do so because Ontario’s human rights law (on the protected ground of “sex”) only protects employees who are already pregnant.

TRUE/FALSE 27. In Stewart v Elk Valley Coal Corp the Supreme Court of Canada rejected the previously widely accepted principle that “denial” is an inherent part of the disease of addiction by finding that in this situation, Stewart’s addiction did not prevent him from disclosing his cocaine use to his employer as required by the employer’s policy.

TRUE/FALSE 28. Ella is being harassed at work based on the fact that she stutters and her employer refuses to do anything about it. In this situation Ella may either file an application with the Human Rights Tribunal (based on the protected ground of “disability) or file a harassment complaint with the Ministry of Labour under the Occupational Health and Safety Act but she may not do both.

TRUE/FALSE 29. Anand, a manager, is having a rough day and he uncharacteristically snaps at Thea when she asks what appears to him to be a silly question. Even though Thea reports to Anand and is really hurt by his sarcastic response to her question, this incident probably would not be considered harassment.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 5: Answer Key Multiple choice 1. b 2. d 3. d 4. b 5. c 6. a 7. d 8. d 9. b 10. c 11. a 12. a 13. b 14. c 15. c 16. b 17. b 18. c 19. b 20. c 21. b 22. d 23. a 24. c 25. c 26. b 27. b True or False 1. true 2. true

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

3. true 4. true 5. false 6. true 7. false 8. false 9. true 10. false 11. false 12. false 13. false 14. true 15. false 16. true 17. false 18. true 19. true 20. false 21. false 22. true 23. false 24. false 25. false 26. false 27. true 28. false 29. true

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Chapter 6: Equity in the Workplace Multiple choice 1. Ontario’s Pay Equity Act applies to all provincially regulated private sector employers that have: (a) 10 or more employees (b) 20 or more employees (c) 50 or more employees (d) 100 or more employee 2. The Federal Contractors Program applies to: (a) companies with at least 50 employees who bid on federal contracts worth $100,000 or more (b) companies with at least 100 employees who bid on federal contracts worth $100,000 or more (c) companies with at least 100 employees who bid on federal contracts worth at least $1,000,000 (d) companies with at least 200 employees who bid on federal contracts worth at least $1,200,000 3. Generally speaking, under Ontario’s Pay Equity Act, a job class is considered “female-dominated” when: (a) 50% of the incumbents are female (b) 60% of the incumbents are female (c) 70% of the incumbents are female (d) none of the above 4. Under Ontario’s Pay Equity Act, an employer that has three bargaining units, as well as non-union employees, in its establishment is allowed to have: (a) two pay equity plans (b) three pay equity plans (c) four pay equity plans (d) none of the above 5. Under Ontario’s Pay Equity Act, there is a cap on the amount of pay equity adjustments that a Part II private sector employer who prepared a pay equity plan has to make each year. This cap is equal to: (a) 1% of the employer’s annual payroll (b) 2% of the employer’s annual payroll (c) 3% of the employer’s annual payroll

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(d) 5% of the employer’s annual payroll 6. Ontario’s “equal pay for equal work” requirements are found in the: (a) Pay Equity Act (b) Employment Standards Act (c) Employment Equity Act (d) Human Rights Code 7. Ontario’s Pay Equity Act applies to all public sector employers in Ontario as long as they have: (a) 10 or more employees (b) 50 or more employees (c) 100 or more employees (d) none of the above 8. Which one of the following is NOT true of jobs that are part of the same female job class? (a) the jobs have similar qualifications (b) the jobs are filled by similar recruiting procedures (c) the jobs have the same compensation schedule or range (d) the jobs only have female incumbents 9. “Job rate” is defined as: (a) the lowest rate of pay (b) the top rate of pay (c) the average rate of pay (d) the median rate of pay 10. Which one of the following is NOT required of employers covered by the Federal Contractors Program? (a) to collect data on its workforce composition (b) to complete a workforce analysis (c) to meet hiring quotas established by the federal government (d) to make reasonable progress and reasonable efforts toward achieving employment equity 11. Which one of the following is a true statement concerning Ontario’s gender-based equal pay for equal work requirement? (a) It only applies where the employer intends to discriminate between male and female employees

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(b) Enforcement is complaint based (c) It requires employers to pay women and men at the same rate if they are performing substantially the same kind of work, in the same establishment (d) It is covered by Ontario’s Pay Equity Act 12. Compared with other countries within the Organization for Economic Cooperation and Development (the “OECD), Canada’s current gender wage gap is: (a) much less than the OECD average (b) slightly less than the OECD average (c) approximately the same as the OECD average (d) larger than the OECD average 13. To comply with Ontario’s pay equity legislation, which one of the following statements is not true concerning the job evaluation system used to compare jobs? (a) it must be gender neutral by not undervaluing aspects of typically femaledominated jobs (b) it must base job value on the four factors of skill, effort, responsibility and working conditions (c) employers may choose any sub-factors they want, as long as those sub-factors are gender-neutral (d) employees in both male and female job classes can file a complaint that their work is undervalued 14. The process of achieving pay equity involves a number of steps. What is the step that immediately follows after the employer places jobs into job classes? (a) determining the gender predominance of each job class (b) determining the value of each job class (c) gathering job content information for each job class (d) conducting comparisons between female and male job classes 15. Under the job evaluation method called “the point factor system”, the employer decides on a total number of points and then attributes points to each factor and subfactor chosen, based on the weight given to it. For example, if the total number of points is 1,000, and skill is weighted at 30% of total value (e.g. 10% interpersonal skills, 8% knowledge, and 12% problem-solving), the factor of “knowledge” would be worth: (a) 30 points (b) 80 points (c) 100 points (d) 120 points

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16. Under Ontario’s Pay Equity Act, different pay levels are permitted between comparable male and female-dominated jobs if the pay differential results from one of a list of factors. Which one of the following is NOT one of those acceptable factors? (a) a documented gender neutral seniority system (b) a senior executive exception (i.e. where the male-dominated job class is a senior executive position that is typically filled internationally) (c) a temporary training or development assignment (d) a merit pay system

True or False 1. Ontario’s Pay Equity Act is aimed at preventing wage discrimination against women and visible minorities.

TRUE/FALSE 2. In Ontario, there is no statutory requirement to implement an employment equity program.

TRUE/FALSE 3. The federal Employment Equity Act covers four designated groups: women, disabled people, visible minorities, and people over the age of 65.

TRUE/FALSE 4. Ontario’s “equal pay for equal work” and “equal pay for work of equal value” provisions require job comparisons based on the same four factors—skill, effort, responsibility, and working conditions.

TRUE/FALSE 5. Where more than one comparable male job is found using the direct job-to-job comparison method, pay equity is achieved when the female job rate at least equals the average job rate of the comparable male jobs.

TRUE/FALSE 6. Under Ontario’s Pay Equity Act, only female employees may file a complaint with the Pay Equity Commission.

TRUE/FALSE

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7. Under Ontario’s Pay Equity Act, a private sector employer who is unable to find a male comparator for any one of its female-dominated jobs using the direct job-to-job comparison method must then use the proportional value comparison method to achieve pay equity for that job.

TRUE/FALSE 8. Under Ontario’s Pay Equity Act, the proxy comparison method of making job comparisons is required in both the private and the public sectors.

TRUE/FALSE 9. Under Ontario’s Pay Equity Act, where a male job class is paid more than an equally valued female job class, the employer may correct the inequity by reducing the job rate of the male job class.

TRUE/FALSE 10. Under Ontario’s Pay Equity Act, once pay equity is achieved, subsequent pay differentials that result from differences in bargaining strength are allowable.

TRUE/FALSE 11. The purpose of Ontario’s Pay Equity Act is to ensure that all employees are paid based on the value of their job to the employer.

TRUE/FALSE 12. Employers with 10 or more employees who began operating in Ontario after January 1, 1988 are required to comply with the Pay Equity Act immediately; there is no phase-in period.

TRUE/FALSE 13. A gender-neutral job evaluation system is one that recognizes commonly overlooked features of work typically performed by women, such as multi-tasking.

TRUE/FALSE 14. There is no minimum number of jobs in a job class; a single position may constitute a job class.

TRUE/FALSE

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15. As long as the top rate of pay is the same for the female-dominated job class and its male comparator group, the Pay Equity Act does NOT require that the number of steps required to achieve that job rate be the same.

TRUE/FALSE 16. Employers covered by the Federal Contractors Program do not have to report their workforce statistics publicly.

TRUE/FALSE 17. Ontario’s Pay Equity Act basically sets out two separate pay equity processes: one for employers that had 100 or more employees as of December 31, 2000 and one for those that did not.

TRUE/FALSE 18. After employers place all jobs into job classes the next step is to determine the gender predominance of those job classes.

TRUE/FALSE 19. As long as an employer uses the four legislated factors of skill, effort, responsibility, and working conditions in making its job comparisons, it may adopt any sub-factors, and give those sub-factors any weight, that it chooses.

TRUE/FALSE 20. In a unionized environment, employers and unions are prohibited from agreeing to terms that, if implemented, would mean that the minimum requirements of the Pay Equity Act are not met.

TRUE/FALSE 21.The proportional value comparison method must be used by all Part I employers.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 6: Answer Key Multiple choice 1. a 2. c 3. b 4. c 5. a 6. b 7. d 8. d 9. b 10. c 11. c 12. d 13. d 14. a 15. b 16. b 17. c True or False 1. false 2. true 3. false 4. true 5. false 6. false 7. true 8. false 9. false 10. true 11. false 12. true

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13. true 14. true 15. true 16. true 17. true 18. true 19. false 20. true 21. false

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 7: Employment Standards Act Multiple choice 1. Which of the following groups of workers may refuse to work on Sundays under Ontario’s Employment Standards Act? (a) homeworkers (b) retail workers hired before September 4, 2001 (c) workers in continuous operations (d) students under 18 years of age 2. Under Ontario’s ESA, an employer should generally keep employee records (other than vacation-related records) for at least: (a) one year after the events they record (b) two years after the events they record (c) three years after the events they record (d) five years after the events they record 3. An agreement to vary from legislated hours of work requirements requires the approval of the Director of Employment Standards if the weekly hours will exceed: (a) 40 hours (b) 44 hours (c) 48 hours (d) 60 hours 4. Even with a signed authorization from the employee, an employer cannot make a deduction from an employee’s wages to cover a cash shortage unless: (a) the employee has sole access and control over the cash in question (b) the dollar amount of the cash is less than $500 (c) the employee is a supervisor or managerial employee (d) all of the above 5. Joe earns $15 per hour. Under Ontario’s ESA overtime provisions, his overtime premium pay would be: (a) $15.00 per hour (b) $20 per hour (c) $22.50 per hour (d) $30 per hour 6. To qualify for a paid public holiday in Ontario, employees must: (a) have worked for that employer at least three months before the public holiday

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(b) have worked for that employer at least 12 days in the preceding four weeks before the public holiday (c) have worked their entire shift on their regularly scheduled days of work immediately before and after the public holiday, unless they had reasonable cause for not working (d) all of the above 7. Statutory parental leave for the biological mother is: (a) up to 17 weeks in length (b) up to 35 weeks in length (c) up to 37 weeks in length (d) up to 61 weeks in length 8. To qualify for family medical leave under Ontario’s ESA, an employee must: (a) work for an employer who has at least 50 employees in Ontario (b) have worked at least three months for the employer (c) be eligible to receive compassionate care benefits under the federal employment insurance legislation (d) none of the above 9. If Sadie started work on January 1, 2019, under Ontario’s ESA, her employer must allow her to take her statutory vacation time before: (a) January 1, 2020 (b) June 30, 2020 (c) November 1, 2020 (d) January 1, 2021 10. To calculate public holiday pay, the employer adds all regular wages and vacation pay that is owing to the employee in the four workweeks ending just before the workweek with the public holiday and divides that number by: (a) 1.5 (b) 5 (c) 10 (d) 20 11. Where a valid “averaging hours” agreement is in place, an employee who works 48 hours in one week and 40 hours in the next is entitled to receive overtime premium pay for: (a) 0 hours (b) 4 hours

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(c) 8 hours (d) none of the above 12. The legislated minimum wage for homeworkers is: (a) the same as the general minimum wage (b) slightly higher than the general minimum wage (c) slightly lower than the general minimum wage (d) the same as the rate for full-time students 13. Under the ESA, the three-hour rule means that generally an eligible employee who comes into work as scheduled but is sent home before working at least three hours is entitled to receive: (a) three hours’ pay at his or her regular rate (b) the greater of three hours’ pay at minimum wage or his or her regular wage for the time worked (c) 1.5 times his or her regular wage for the time worked (d) three hours’ pay at their regular rate (or their actual worked rate for the time worked if higher, plus their regular rate for the balance of the three hours) 14. Under the ESA, overtime premium pay must be paid in Ontario after: (a) 37.5 hours per week (b) 40 hours per week (c) 44 hours per week (d) 48 hours per week 15. Under the ESA, an employee who works 50 hours in a week and who agrees to take time off instead of receiving overtime premium pay for that overtime is entitled to: (a) 3 hours of paid time off in lieu of overtime pay (b) 6 hours of paid time off in lieu of overtime pay (c) 9 hours of paid time off in lieu of overtime pay (d) 15 hours of paid time off in lieu of overtime pay 16. Under Ontario’s ESA, an employee is entitled to receive three weeks’ vacation time after: (a) 5 years of service (b) 10 years of service (c) 15 years of service (d) none of the above 17. Which one of the following days is NOT one of the nine public holidays set out in Ontario’s ESA?

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(a) Boxing Day (b) Canada Day (c) Labour Day (d) Remembrance Day 18. To qualify for pregnancy leave under Ontario’s ESA, a pregnant employee must have: (a) worked at least 13 weeks before the expected due date (b) been hired at least 13 weeks before the expected due date (c) worked at least 17 weeks before the expected due date (d) been hired at least 17 weeks before the expected due date 19. Ontario’s family responsibility leave provisions entitle employees to up to ____ unpaid days of leave per calendar year because of an illness, injury, medical emergency, or urgent matter relating to certain relatives: (a) five (b) two (c) ten (d) three 20. Which of the following types of employees are NOT covered by any of the provisions of Ontario’s ESA? (a) professionals (b) police officers (c) high school or college students performing work in a work-experience program (d) students under 18 21. In which of the following circumstances can the employer NOT make deductions from an employee’s wages under Ontario’s ESA? (a) where there is a court order authorizing such payment (b) for Canada Pension Plan contributions (c) where the employee has signed a written statement authorizing the deduction for losses caused by faulty work (d) none of the above 22. Under Ontario’s ESA, an employer and employee may verbally agree that instead of being given a 30-minute eating period after five consecutive hours of work, the employee may: (a) forgo an eating period (b) be given two eating periods that together total at least 30 minutes

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(c) take a coffee break instead (d) none of the above 23. Under Ontario’s ESA, the time limit for filing a claim against an employer for failure to provide wage statements is: (a) 6 months (b) 12 months (c) two years (d) none of the above 24. Under Ontario’s ESA, military reservists are entitled to unpaid leave for the time they are deployed if they have worked for their employer for at least: (a) 6 consecutive months (b) 9 consecutive months (c) 12 consecutive months (d) 24 consecutive months 25. Under Ontario’s ESA, organ donor leave is for: (a) 13 weeks (b) 13 weeks, with the possibility of extension for another 13 weeks (c) 17 weeks (d) 17 weeks, with the possibility of extension for 13 weeks 26. Under Ontario’s ESA, an adoptive mother is entitled to receive a total of: (a) 17 weeks’ leave (b) 37 weeks’ leave (c) 52 weeks’ leave (d) 63 weeks’ leave 27. Beatrice works 40 hours per week and earns $1,000 each week. Assuming she works her regularly scheduled day before and after the next public holiday, how much public holiday pay will she be entitled to receive for that day? (a) $50 (b) $100 (c) $150 (d) $200 28. Janette, a telemarketer, works 46 hours this week for her employer, Ace Co. Her employment contract is silent concerning overtime pay. Under the ESA, which one of the following is true?

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(a) Janette must receive at least two hours’ pay at the overtime rate of pay (b) Ace Co. needs to get prior approval from the Ministry of Labour before allowing Janette (or any of its telemarketing employees) to work this many hours in a week (c) as a telemarketer, Janette is not covered by overtime pay requirements (d) none of the above 29. Under Ontario’s ESA, a temporary employment agency may only charge a client a fee for offering permanent employment to one of its temporary agency employees (“temps”) if the offer is made in the first: (a) month of the temporary employee’s assignment with that client (b) 3 months of the temp’s assignment with that client (c) 6 months of the temp’s assignment with that client (d) 12 months of the temp’s assignment with that client 30. Under Ontario’s ESA, bereavement leave is available to employees who work for organizations that regularly employ, in Ontario, at least (a) 10 employees (b) 25 employees (c) 50 employees (d) none of the above 31. Under Ontario’s ESA, an employee is eligible for family medical leave if a qualified medical practitioner certifies that a close relative (or other specified person) is in serious danger of dying within the next: (a) 8 weeks (b) 13 weeks (c) 20 weeks (d) 26 weeks 32. Under Ontario’s ESA, it is illegal for temporary employment agencies to do which of the following? (a) charge their employees a fee for resumé preparation (b) charge a client a fee if that client hires the temporary agency employee at any time during his or her assignment (c) terminate an employee without just cause (d) a and b 33. Under Ontario’s ESA, employees with at least six months’ service can take up to ____ weeks of unpaid leave to provide care or support to a critically ill adult family member. (a) 17 weeks Copyright © 2019 Emond Publications. All rights reserved.

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(b) 26 weeks (c) 37 weeks (d) 52 weeks 34. You work for a medium-sized employer (126 employees) and you have two small children (aged 2 and 3½). Yesterday, your babysitter called around 12:45 p.m., in the middle of your workday, to say that she was ill and would have to go home shortly.

You looked around for your supervisor to explain the situation, but she was at lunch, so you just left a message on her voicemail, telling her you had to leave for the rest of the day. (This is the first day you have taken off since the beginning of the year.)

Under Ontario’s ESA, which of the following is true? (a) even though you did not give proper advance notice, your employer has to pay you for the remainder of the workday (b) your employer does not have to pay you for the remainder of the workday because you left without giving proper advance notice (c) your employer does not have to pay you for the remainder of the workday because the law does not require this leave to be paid (d) your employer does not have to pay you for the remainder of the workday AND you can be disciplined for failing to provide proper advance notice to take this leave 35. Which one of the following employees is covered by Ontario’s general minimum wage provisions: (a) Jessie, aged 19, is a full-time student who works 28 hours a week or less when school is in session (b) Jamey works as a server in a licensed bar (c) Esther works from home as a seamstress (d) Nate works as a fishing guide 36. Adela has agreed to work on a public holiday and receive public holiday pay, plus premium pay, for the 8 hours she will work that day. Her hourly rate is $20 per hour (and therefore in the four weeks before the week of the holiday she earned $3200).

Under Ontario’s ESA, how much is she entitled to receive for working that public holiday? (a) $160 (b) $200 (c) $240 (d) $400 37. There are now additional procedural requirements on employers where employees take a substitute day off for a public holiday. The employer has to provide a written statement setting out all of the following except:

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(a) The amount of holiday pay the employee will receive for the substitute day off (b) The public holiday to be worked (c) The substitution date (d) The date the written statement is provided to the employee 38. Since the passage of Bills 148 and 47, the ESA now provides for ____ statutory leaves of absence. (a) 14 (b) 8 (c) 10 (d) 12 39. How many weeks of pregnancy leave can an employee now take after a still birth or a miscarriage? (a) 3 weeks (b) 6 weeks (c) 12 weeks (d) 17 weeks 40. Domestic or Sexual Violence leave is a separate, standalone leave for victims of domestic or sexual violence. For employees who qualify, this leave is a dual entitlement and employees may claim up to: (a) 5 days and 10 weeks of leave per calendar year (b) 10 days and 10 weeks of leave per calendar year (c) 15 days and15 weeks of leave per calendar year (d) 10 days and 15 weeks of leave per calendar year 41. Under Ontario’s ESA child death leave provisions, employees with at least six months’ service can take an unpaid leave of up to: (a) 37 weeks following the death of their child (b) 52 weeks following the death of their child (c) 78 weeks following the death of their child (d) 104 weeks following the death of their child 42. Melvin works at a gas station performing two separate jobs with two separate rates of pay: he works as a cashier in the service bar (at $14.00 an hour) and as a mechanic’s assistant (for $20.00 an hour). Last week he worked 25 hours as a cashier and the final 25 hours as a mechanic’s assistant. Under Ontario’s ESA, how much overtime pay is Melvin entitled to receive for that week: (a) 6 hours x ($14 x 1.5) = $126

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(b) 6 hours x ($20 x 1.5) = $180 (c) 6 hours x ($17 x 1.5) = $153 (d) 2 x ($20 x 1.5) = $60 43. The maximum amount of compensation that employees can receive under the federal government’s Wage Earner Protection Program (WEPP) for unpaid wages, vacation, termination pay or severance pay is approximately: (a) $2,000 (b) $4,000 (c) $7,000 (d) $20,000

True or False 1. Eating periods do not count toward overtime hours or maximum hours of work.

TRUE/FALSE 2. An employee’s consent to an agreement to vary is presumed to be valid unless an employee challenges it.

TRUE/FALSE 3. Under the ESA, all provincially regulated employers must now provide their employees with paid time off on the third Monday in February.

TRUE/FALSE 4. An employee who decides to return to work from pregnancy or parental leave earlier than previously indicated must provide the employer with at least two weeks’ notice before the new return date.

TRUE/FALSE 5. Under the sick, bereavement, and family responsibility leave provisions, a partial day may be counted as a full day in determining the number of emergency days per year that the employee has taken.

TRUE/FALSE 6. All complaints under Ontario’s ESA must be made within six months of the last violation of the legislation complained of.

TRUE/FALSE

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7. Unionized employees are not covered by Ontario’s ESA. TRUE/FALSE 8. Police officers are not covered by the provisions of the ESA, with the exception of the lie detector provisions.

TRUE/FALSE 9. Most employees in Ontario are entitled to have at least 12 consecutive hours off work each day.

TRUE/FALSE 10. Employees in Ontario can be required to work hours in excess of the statutory maximum hours of work for rush orders that their employer was unprepared for.

TRUE/FALSE 11. An employer can lower an employee’s regular wage to avoid paying overtime premium pay only if it has the employee’s written agreement.

TRUE/FALSE 12. Under the ESA, averaging agreements for overtime purposes cannot be revoked or cancelled before the expiry date unless both the employer and employee agree in writing.

TRUE/FALSE 13. Under the ESA, agreements to work excess hours may be revoked by non-union employees on two weeks’ written notice.

TRUE/FALSE 14. Under Ontario’s ESA, an employer has to pay an employee who is on statutory leave at least one-half of his or her regular wages if the employee is not eligible for employment insurance benefits.

TRUE/FALSE 15. Statutory parental leave is limited to biological parents.

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TRUE/FALSE 16. If a parent returns from pregnancy or parental leave early, he or she gives up the right to take the remainder of the leave unless the employer agrees to it.

TRUE/FALSE 17. Ontario’s family medical leave provisions allow an employee to take up to 8 weeks off in a 20-week period to take care of a gravely ill family member.

TRUE/FALSE 18. Employees who take a statutory leave are entitled to return to the same position or, if the employer chooses, to a comparable position after their leave.

TRUE/FALSE 19. Ontario’s ESA applies to every employee who works in Ontario.

TRUE/FALSE 20. Under Ontario’s ESA, employers are not legally required to provide coffee breaks to their employees.

TRUE/FALSE 21. Under Ontario’s ESA, an employee may be entitled to vacation pay but not vacation time if he or she has worked only a short period of time.

TRUE/FALSE 22. Only periods of active service (i.e., when the employee is actually working) are included in calculating an employee’s entitlement to vacation time.

TRUE/FALSE 23. Under Ontario’s ESA, an employer must provide all employees with a poster that sets out the most important employee rights found in the Act. TRUE/FALSE 24. Under Ontario’s ESA, with the agreement of the Ministry of Labour, an employee may agree to give up vacation time but not vacation pay.

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TRUE/FALSE 25. Under Ontario’s ESA, sick leave is only available to employees who work for organizations that regularly employ at least 50 people in Ontario.

TRUE/FALSE 26. Employees continue to earn credits toward vacation time while on parental leave, but unless the contract of employment specifies otherwise, vacation pay does not accrue during an unpaid leave.

TRUE/FALSE 27. In order to designate a plant shutdown for two weeks in the summer as vacation time, the employer requires the employee’s agreement in writing.

TRUE/FALSE 28. Under the ESA, the normal rule is that an employee may agree, but cannot be required, to work on a public holiday that falls on a regular working day.

TRUE/FALSE 29. An employee who was on probation at the start of a pregnancy or parental leave may be required to complete her probationary period after returning to work from the leave.

TRUE/FALSE 30. Under Ontario’s ESA, part-time employees are not eligible for family responsibility leave.

TRUE/FALSE 31. Most statutory leaves under the ESA (e.g., pregnancy, parental, and family medical leaves) are unpaid by the employer.

TRUE/FALSE 32. An employee whose wages are based on commission is not covered by Ontario’s minimum wage requirements.

TRUE/FALSE

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33. Employees who are exempt from overtime pay under the ESA may still be entitled to overtime pay under their employment contract or an office policy.

TRUE/FALSE 34. The federal Wage Earner Protection Program does not cover statutory termination or severance pay.

TRUE/FALSE 35. Under the Regulatory Modernization Act, 2007, Ontario government regulators can now share compliance and complaint-related information, but only if the ministries involved have the same, or similar, investigative rules.

TRUE/FALSE 36. In Ontario, class action lawsuits must be “certified” by a judge before they are allowed to proceed.

TRUE/FALSE 37. Class action lawsuits are only appropriate where there is a common issue of law or fact involved.

TRUE/FALSE 38. Commissioned salespeople who work outside the workplace but sell on a particular “route” are NOT covered by the minimum wage requirements under the ESA. TRUE/FALSE 39. High earning employees who exercise considerable autonomy over their own work are exempt from the ESA’s overtime pay requirements.

TRUE/FALSE 40. Every employee who works in Ontario is entitled to receive Family Day off.

TRUE/FALSE 41. Managers whose job duties are entirely managerial or supervisory in nature are not covered by any of the standards in Ontario’s ESA. TRUE/FALSE

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42. To be eligible for vacation time under Ontario’s ESA, an employee must have worked at least 10 consecutive months for his or her employer.

TRUE/FALSE 43. Fatima was hired 15 weeks before her expected due date. Soon after starting her new job, however, she has to go off on sick leave for five weeks. Fatima is eligible for pregnancy leave under Ontario’s ESA. TRUE/FALSE 44. To be eligible for family caregiver leave, an employee must provide a certificate from a health practitioner that a family member (or someone who is like family) has a serious medical condition. However, this certificate does not have to be from a physician.

TRUE/FALSE 45. Employees who qualify for critical illness leave may take up to 52 weeks of unpaid leave to provide care or support to a critically ill child whose life is at risk because of illness or injury.

TRUE/FALSE 46. A client organization may be liable to pay a temporary worker his or her unpaid wages, even if it has already paid the temporary agency for the temporary worker’s services.

TRUE/FALSE 47. There is no longer a $10,000 cap on the amount that an employer can be ordered to pay to an employee by the Ministry of Labour for amounts owing under the ESA. TRUE/FALSE 48. In most circumstances, an employment standards officer will only be assigned to a complaint after the employee has contacted, or tried to contact, his or her employer about the issue being complained about.

TRUE/FALSE 49. If an employee decides to start a court action after filing a claim for unpaid wages with the Ministry of Labour, the employee must withdraw the claim within 2 weeks of filing, or the court action will be barred.

TRUE/FALSE

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50. Unpaid internships are only allowed under Ontario’s ESA where students perform work under an approved program by a secondary school, college, or university.

TRUE/FALSE 51. Subject to certain exceptions, currently the equal pay for equal work provisions of Ontario’s ESA prohibit pay differences based on two grounds: gender and employment status.

TRUE/FALSE 52. Natasha’s shift is cancelled 3 hours before it is to begin due to a power failure. In this situation Natasha is entitled to three hours pay at her regular rate.

TRUE/FALSE 53. Mischa, who works in Mississauga, is soon going to take parental leave. Assuming he qualifies for Employment Insurance benefits, he has two basic choices: subject to a legislated benefits ceiling, he may choose to receive either (i) the standard parental benefit (35 weeks of benefits for up to 12 months) at a rate of 55% of his average weekly earnings OR (ii) the extended parental benefit (61 weeks of benefits over 18 months) at 33% of his average weekly earnings.

TRUE/FALSE 54. Noelle needs to take three days off due to a medical condition. Under Ontario’s ESA her employer cannot require her to provide a doctor’s note to support this leave.

TRUE/FALSE 55. Employees with at least six months of service can take up to 104 weeks of unpaid leave following the death of a child or on the crime-related disappearance of a child.

TRUE/FALSE 56. Cornell is a temporary help agency employee whose 6-month assignment is ending unexpectedly after only 2 months. The agency who employs him has no other assignment for him at the moment. Under Ontario’s ESA, in this situation the temporary agency must provide Cornell with at least 2 weeks’ notice or pay in lieu of notice of the early end of his assignment.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 7: Answer Key Multiple choice 1. b 2. c 3. c 4. a 5. c 6. c 7. d 8. d 9. c 10. d 11. a 12. b 13. d 14. c 15. c 16. a 17. d 18. b 19. d 20. c 21. c 23. b 24. c 25. a 26. b 28. d 30. d 31. a 32. c 33. d

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34. d 35. a 36. a 37. c 38. a 41. d 42. a 43. d 44. c 45.d 47. d 48. b 49. b True or False 1. true 2. true 3. false 4. false 5. true 6. false 7. false 8. true 9. false 10. false 11. false 12. true 13. true 14. false 15. false 16. true 17. false 18. false 19. false Copyright © 2019 Emond Publications. All rights reserved.

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20. true 21. true 22. false 23. true 24. true 25. false 26. true 27. false 28. true 29. true 30. false 31. true 32. false 33. true 34. false 35. false 36. true 37. true 38. false 39. false 40. false 41. false 42. false 43. true 44. true 45. false 46. true 47. true 48. false 49. true 50. true 51. false 52. false Copyright © 2019 Emond Publications. All rights reserved.

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53. true 54. false 55. true 56. false

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Chapters 8 and 9: Occupational Health and Safety Act and Workplace Safety and Insurance Act (Ontario) Multiple choice 1. Ontario’s Occupational Health and Safety Act (OHSA) generally requires a single health and safety representative where: (a) the workplace has 6 or more workers (b) the workplace has 1 to 19 workers (c) the workplace has 6 to 19 workers (d) the workplace has 20 or more workers 2. Where a joint health and safety committee is required by law, which of the following is responsible for establishing it? (a) the Ministry of Labour (b) the employer and union jointly (c) the employer (d) the employer and employees jointly 3. Material safety data sheets expire every: (a) two years (b) three years (c) four years (d) five years 4. An employer must provide a written report of a critical injury or fatality to the Ministry of Labour within: (a) 24 hours of the workplace accident (b) 48 hours of the workplace accident (c) 72 hours of the workplace accident (d) seven days of the workplace accident 5. The right to stop work that exists under Ontario’s OHSA may be initiated by: (a) only a certified worker member of the joint health and safety committee (b) either a certified worker member or a certified management member of the joint health and safety committee (c) any member of the joint health and safety committee (d) any worker who believes that the workplace presents a health and safety risk to its workers 6. Under Ontario’s OHSA, a workplace with 35 workers:

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(a) does not require a joint health and safety committee (b) requires a joint health and safety committee of at least two people (c) requires a joint health and safety committee of at least two people, including a certified management representative and a certified worker representative (d) requires a joint health and safety committee of at least four people, including a certified management representative and a certified worker representative 7. Loss of earnings benefits under the Workplace Safety and Insurance Act, 1997 (WSIA) are: (a) 75% of an injured worker’s net earnings (b) 80% of an injured worker’s net earnings (c) 85% of an injured worker’s net earnings (d) 90% of an injured worker’s net earnings 8. Under Ontario’s WSIA, an employer must continue benefit coverage for an injured worker for up to: (a) 6 months after the date of injury (b) 12 months after the date of injury (c) indefinitely until the injured worker is declared fit for work (d) none of the above 9. Under Ontario’s WSIA, the Workplace Safety and Insurance Board (WSIB) must begin setting aside money to provide an injured worker with a retirement pension after a worker has received loss of earnings benefits for: (a) 3 consecutive months (b) 6 consecutive months (c) 12 consecutive months (d) 24 consecutive months 10. Employers who regularly employ 20 or more workers have a statutory obligation under the WSIA to reinstate an injured worker who has worked continuously for that employer for at least: (a) six months (b) one year (c) two years (d) none of the above 11. The workplace safety and insurance system is funded by: (a) employers only (b) employers and employees jointly

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(c) employers and general taxes (d) the Ministry of Labour 12. Under the Smoke-Free Ontario Act, which of the following is NOT true? (a) employers must advise all workers that smoking is prohibited in the enclosed work environment (b) employers must remove ashtrays or similar equipment from the workplace (c) employers must post “no smoking” signs at all entrances (d) employers must provide designated smoking rooms 13. The health and safety provisions under Canada’s Criminal Code apply to: (a) both federally and provincially regulated employers (b) federally regulated employers only (c) provincially regulated employers only (d) employees of the federal government only 14. Effective July 1, 2014, employers are required to provide workers and supervisors with a basic understanding of the OHSA. Which one of the following is true? (a) this training is only required for workers in safety-sensitive jobs (b) this training is required for both full-time and part-time workers, but not seasonal workers (c) for workers, this training must be completed “as soon as practicable” after being hired (d) for supervisors, this training must be completed “as soon as practicable” after being hired 15. Which one of the following statements is true? (a) a Ministry of Labour inspector may file a reprisal complaint on behalf of an employee, with or without that employee’s consent (b) responsibility for prevention of accidents has been transferred from the Workplace Safety and Insurance Board to the Ministry of Labour (c) if a JHSC fails to reach consensus on a recommendation, the two co-chairs of a JHSC may make a unilateral written recommendation to an employer. As long as it is their joint recommendation, the employer must respond to it. (d) the Office of the Employer Adviser may advise employers with under 125 employees on health and safety matters, as well as on WSIB matters 16. Which of the following is NOT true during the first stage of a work refusal? (a) the worker must have “reasonable grounds” for believing that the work is unsafe (b) the worker must be paid

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(c) the worker must remain in a safe place near the workstation until the investigation is complete (d) the worker must immediately tell the supervisor that he or she is refusing to work and state the reasons 17. Which of the following is not covered by Ontario’s OHSA workplace harassment provisions? (a) a negative performance review by an employee’s manager (b) unwelcome sexual advances by an employee’s manager (c) ongoing demeaning jokes amongst co-workers (d) the circulating of offensive materials 18. In 2014, the Workplace Safety and Insurance Appeals Tribunal found that denying an employee benefits for mental stress unless the stress arose from a “sudden and unexpected traumatic event” was unlawful. On which of the following did it base its decision? (a) the Canadian Charter of Rights and Freedoms (s 15) (b) Ontario’s Human Rights Code (c) the Employment Standards Act (d) the Employment Equity Act 19. An employer is not required to report a workplace accident to the WSIB: (a) where the injured worker requires modified work at regular pay for no more than seven calendar days after the accident (b) where the injured worker seeks medical care but is not hospitalized for the injury (c) where the injured worker requires modified work for no more than five calendar days after the accident (d) where the injured worker requires modified work for no more than seven calendar days after the accident 20. Which one of the following industries is NOT compulsorily covered by the WSIA? (a) theatres (b) construction sites (c) hospitals (d) insurance companies 21. The requirement to have a policy related to workplace violence is found in Ontario’s: (a) Occupational Health and Safety Act (b) Employment Standards Act (c) Workplace Safety and Insurance Act

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(d) Human Rights Code 22. Which one of the following workers is not covered by Ontario’s OHSA: (a) a temporary help agency employee (b) an unpaid student intern (c) an independent contractor (d) a live-in nanny 23. Subject to certain limited exceptions, under Ontario’s OHSA employers are specifically prohibited from requiring workers to wear: (a) tight fitting clothing (b) poor fitting head wear (c) high heeled footwear (d) uncomfortable ear phones 24. With respect to evaluating hazards, a poor fit between a worker and his or her work station is an example of which type of factor? (a) an ergonomic factor (b) a human factor (c) a situational factor (d) an environmental factor 25. Which one of the following is not true when comparing WHMIS 2015 (GHS) to the older WHMIS system: (a) it changes the role of suppliers, employers and workers (b) it affects how chemicals are classified (c) it affects supplier labeling requirements (d) it makes hazard classification criteria more comprehensive 26. Which one of the following statements related to investigations of workplace harassment complaints under Ontario’s OHSA is true: (a) as a rule, such investigations should be completed with 120 days of the complaint (b) the alleged harasser should not be in a position of authority over the investigator (c) only complaints, not mere rumours, of harassment should be investigated (d) the investigator’s questions to witnesses should be kept vague so the identity of the parties remains confidential 27. Maximum fines for corporations under Ontario’s OHSA are now: (a) $100,000 (b) $1,000,000

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(c) $1,500,000 (d) $10,000,000 28. Under Ontario’s WSIA, which one of the following statements is true with respect to entitlement to benefits for mental stress arising out of and in the course of employment? (a) workers are entitled to WSIA benefits for traumatic mental stress only (b) workers are entitled to WSIA benefits for chronic mental stress only (c) workers are entitled to WSIA benefits for mental stress caused by an employer’s management decisions (d) workers may be entitled to WSIA benefits for both traumatic and chronic mental stress 29. For mental stress to be compensable under the WSIA, three conditions must be met.

Which one of the following is NOT one of those three conditions? (a) an appropriate regulated health professional must provide a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (b) the worker must have experienced a substantial work-related stressor (c) the employer did not respond appropriately to the work-related stressor (d) the work-related stressor(s) is the predominant cause of the appropriately diagnosed mental stress injury 30. Most Work Reintegration Programs do not exceed: (a) 1 year in duration (b) 2 years in duration (c) 3 years in duration (d) 4 years in duration

True or False 1. Ontario’s health and safety legislation applies to all workplaces in Ontario, regardless of their size or industry.

TRUE/FALSE 2. At least one member of every joint health and safety committee must be “certified.”

TRUE/FALSE 3. Under Ontario’s health and safety legislation, the joint health and safety committee must meet at least once every three months.

TRUE/FALSE

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4. Under Ontario’s health and safety legislation, the legal onus is on the Ministry of Labour to prove that the employer did not exercise “due diligence” in preventing the workplace accident.

TRUE/FALSE 5. At the first stage of a work refusal, Ontario’s OHSA permits an employee to refuse work but only when he or she has reasonable grounds for believing that the work is unsafe.

TRUE/FALSE 6. An employer may ask an employee to perform work that another employee has previously refused for safety reasons as long as the second employee is a member of the joint health and safety committee.

TRUE/FALSE 7. Ontario employers should use Form 7 to notify both the Ministry of Labour and the Workplace Safety and Insurance Board of a workplace injury.

TRUE/FALSE 8. Workers who travel on business are usually covered by WSIA benefits for injuries suffered while participating in predictable activities such as dining in a hotel.

TRUE/FALSE 9. An employee who is injured at work as a result of his or her own deliberate recklessness is still entitled to receive workplace safety and insurance benefits if the injury results in death or serious impairment.

TRUE/FALSE 10. The older a worker is when he or she is permanently impaired through a work-related injury, the greater the amount of non-economic loss benefits that worker will be entitled to.

TRUE/FALSE 11. The statutory obligation to re-employ an injured worker under Ontario’s WSIA ends when the employee reaches age 65.

TRUE/FALSE

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12. Under Ontario’s WSIA, the WSIB pays compensation to an injured worker starting on the day after the accident.

TRUE/FALSE 13. The WSIA system is funded entirely by employers.

TRUE/FALSE 14. Ontario employees who are covered by the WSIA system may only sue their employer for a work-related injury if that injury was caused by the employer’s gross negligence.

TRUE/FALSE 15. Under the OHSA, a “supervisor” is defined as someone who has disciplinary authority over other workers.

TRUE/FALSE 16. Under the Bill 168 amendments to the OHSA, employers are required to address domestic violence when it is aware, or ought reasonably to be aware, that domestic violence may occur in the workplace.

TRUE/FALSE 17. Although the 2004 amendments to Canada’s Criminal Code that impose heightened health and safety duties on organizations were designed to hold senior management more accountable for health and safety crimes, lower-level supervisors may face the greatest risk of being charged personally.

TRUE/FALSE 18. Ontario’s health and safety legislation specifically requires an employer to prepare a pandemic plan that sets out the measures to be taken in case of a future pandemic.

TRUE/FALSE 19. There is a rebuttable presumption that an employee’s disability arises out of and in the course of employment.

TRUE/FALSE

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20. Severe stress and depression suffered by an employee as a result of management’s decision to terminate him or her is not compensable under Ontario’s WSIA. TRUE/FALSE 21. Unpaid student interns are no longer covered by the Occupational Health and Safety Act. TRUE/FALSE 22. In Blue Mountain Resorts Limited v Ontario (Labour), the Ontario Court of Appeal found that for a site to constitute a “workplace” for purposes of requiring an employer to report a critical injury or death, there must be some reasonable connection between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the workplace.

TRUE/FALSE 23. “Workplace violence” includes both the exercise and the attempt to exercise physical force, but it does not include merely a verbal threat to exercise physical force.

TRUE/FALSE 24. The right to refuse unsafe work does not apply to workplace harassment.

TRUE/FALSE 25. The Second Injury and Enhancement Fund is available when a pre-existing condition contributes to a work-related accident, increases the severity of the injury, or prolongs a worker’s recovery. Its purpose is to provide the injured worker with a higher level of benefits than he or she would receive otherwise.

TRUE/FALSE 26. The WSIB’s Workwell Program charges a premium rate to employers with a bad accident record or a history of non-compliance with the OHSA that is in addition to surcharges from its experience-rating programs.

TRUE/FALSE 27. A work transition plan is a plan prepared by the WSIB to assist an injured worker in returning to the labour market after a workplace injury. The costs of such a plan are assessed against the Second Injury and Enhancement Fund.

TRUE/FALSE

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28. It is illegal for employers to recover any part of their WSIB premiums from workers.

TRUE/FALSE 29. There are three different schemes for monetary benefits under the WSIA. Which benefit system applies depends on when the worker was injured.

TRUE/FALSE 30. Under Ontario’s OHSA, a vehicle can be a “workplace.”

TRUE/FALSE 31. A workplace violence risk assessment must be reassessed at least annually.

TRUE/FALSE 32. Generally speaking, if no other sector-specific regulation applies, a workplace is covered by the Independent Establishments regulation under Ontario’s OHSA. TRUE/FALSE 33. For a quorum to exist at a Joint Health and Safety Committee meeting, members representing both the managerial and the non-managerial members must be present.

TRUE/FALSE 34. Under Ontario’s OHSA, teachers have an unrestricted right to refuse work that they believe to be unsafe.

TRUE/FALSE 35. Under Ontario’s OHSA, a workplace violence policy should address violence from all possible sources, including customers, clients, supervisors, workers, strangers, and domestic/intimate partners.

TRUE/FALSE 36. Under Ontario’s OHSA, workplaces with six or more workers must have a written workplace harassment policy that is posted in a conspicuous place in the workplace.

TRUE/FALSE

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37. Under Ontario’s OHSA, a Ministry inspector who believes that a harassment complaint was not properly investigated may order the employer to retain an impartial, third-party investigator, to conduct an investigation at the Ministry’s expense TRUE/FALSE 38. The limitation period for bringing a prosecution under the OHSA or its regulations is one year from the date of an inspector first becoming aware of the alleged offence.

TRUE/FALSE 39. Over the past several years, the WSIB’s unfunded liability appears to be decreasing.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapters 8 and 9: Answer Key Multiple choice 1. c 2. c 3. b 4. b 5. b 6. c 7. c 8. b 9. c 10. b 11. a 12. d 13. a 14. c 15. b 16. a 17. b 18. a 19. a 20. d 21. a 22. d 23. c 24. a 25. a 26. b 27. c 28. d 29. c 30. c

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True or False 1. false 2. false 3. true 4. false 5. false 6. false 7. false 8. true 9. true 10. false 11. true 12. true 13. true 14. false 15. false 16. true 17. true 18. false 19. false 20. true 21. false 22. true 23. false 24. true 25. false 26. true 27. false 28. true 29. true 30. true 31. true 32. false Copyright © 2019 Emond Publications. All rights reserved.

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33. true 34. false 35. true 36. true 37. false 38. true 39. true

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Chapter 10: Privacy Inside and Outside the Workplace Multiple choice 1. Generally speaking, the requirements of the federal Personal Information Protection and Electronic Documents Act (PIPEDA) do NOT apply to personal information held by provincially regulated employers in Ontario that relates to their: (a) suppliers (b) employees (c) independent contractors (d) customers 2. In Centre for Addiction and Mental Health v Ontario Public Service Employees Union, the employer decided to conduct surveillance on one of its employees because it wanted to investigate a report that he was working elsewhere while on paid suspension. Upon his return from suspension, the employee claimed that an aversion to water prevented him from performing alternative work in the kitchen (i.e., washing dishes) that the employer offered to him. However, during the video surveillance he had been captured on tape watering his lawn. In the grievance arbitration related to his subsequent dismissal, the arbitrator decided that the videotaped evidence showing him watering his lawn: (a) was admissible because it was relevant to the issue of his claimed aversion to water (b) was admissible because the video surveillance occurred in a public location where he had little expectation of privacy (c) was inadmissible because the initial reason for the surveillance was different from the ultimate reason for dismissal (d) was inadmissible because the initial reason for the surveillance was not reasonable 3. Effective January 1, 2004, the requirements of PIPEDA applied to all personal information used, collected, or disclosed in Ontario in the course of: (a) commercial activity (b) employment activity (c) both of the above (d) neither of the above 4. Which one of the following provinces has NOT passed privacy legislation that covers general personal information in the private sector? (a) British Columbia (b) Alberta (c) Ontario

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(d) Quebec 5. Ontario’s Freedom of Information and Protection of Privacy Act applies to personal information: (a) held by all employers in Ontario (b) of independent contractors only (c) of employees that is sold across provincial borders (d) held by the government only 6. Under PIPEDA, employers are required to respond to employees’ requests for access to personal information being held about them as soon as possible and no later than: (a) 15 days after the request is made (b) 30 days after the request is made (c) 45 days after the request is made (d) 60 days after the request is made 7. Under PIPEDA, an employee’s request for access to personal information held by its employer about her may be denied, at the employer’s discretion, where: (a) the information would reveal personal information about another individual (b) the information is protected by solicitor–client privilege (c) the employer has disclosed the personal information to a government institution for law enforcement or national security reasons and the organization has been instructed to refuse access (d) all of the above 8. In Colwell v Cornerstone Properties Inc., the court found that the Ontario employer’s covert surveillance of its employee: (a) was a contravention of PIPEDA’s requirements and therefore illegal (b) was a contravention of the employee’s common law right to privacy (c) was acceptable because there is no fully developed common law right to privacy (d) constituted constructive dismissal under the common law 9. Under PIPEDA, which one of the following pieces of information would NOT be considered “personal information”? (a) an employee’s ethnicity (b) an employee’s business address (c) an employee’s performance evaluation (d) a videotape of an employee 10. PIPEDA does not cover the personal information of employees in provincially regulated workplaces in Ontario because:

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(a) Ontario has its own general privacy legislation that is comparable to PIPEDA’s requirements and so that statute applies instead (b) PIPEDA’s requirements are being phased in over time and do not yet apply at the provincial level (c) the federal government does not have constitutional authority over employment matters in those workplaces (d) PIPEDA only deals with personal information related to customers, suppliers, and clients 11. Which one of the following is NOT one of the ten fair information principles that PIPEDA is based on? (a) ensuring accountability by appointing a senior person to oversee compliance (b) identifying the purpose of collecting the personal information (c) getting consent from the individual to whom the personal information relates (d) providing automatic access to an individual’s personal information upon request by that individual 12. In Jones v Tsige, the Ontario Court of Appeal set out three elements that a plaintiff must prove to receive damages for the new tort of “intrusion upon seclusion.” Which one of the following is NOT one of those elements? (a) the defendant’s conduct must have been intentional or reckless (b) the defendant must have invaded the plaintiff’s private affairs or concerns (c) the defendant’s invasion of the plaintiff’s private affairs must have been without lawful justification (d) the plaintiff must have regarded the invasion as highly offensive, causing distress, humiliation, or anguish 13. Which one of the following statements related to Ontario’s Personal Health Information Protection Act, 2004 (PHIPA) is NOT true? (a) PHIPA regulates how health information custodians may collect, use, and disclose personal health information (b) PHIPA prohibits disclosure of personal health information to an employee’s supervisor (c) PHIPA only allows disclosure of personal health information where the employee has given express consent or where disclosure is necessary to carry out a statutory or legal duty. (d) Organizations must notify Ontario’s Information and Privacy Commissioner if they have reasonable grounds to believe that personal health information has been stolen 14. In Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 the Supreme Court of Canada was asked to decide whether

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Alberta’s privacy legislation violated the Charter of Rights and Freedoms when it prohibited the videotaping of a picket line during a strike. The court held that: (a) Alberta’s privacy legislation was invalid because it violated the constitutionally protected freedom of expression guarantee (b) Alberta’s privacy legislation violated the Charter’s guarantee of freedom of expression but it was saved by section 1 of the Charter (i.e. it was a reasonable limit to that right in a free and democratic society) (c) Alberta’s privacy legislation is valid because videotaping a picket line is unnecessarily invasive of an individual’s privacy rights (d) Alberta’s privacy legislation is valid because the Canadian Charter of Rights and Freedoms can only override federal, not provincial, legislation 15. In Jones v Tsige, the Ontario Court of Appeal set out three elements that a plaintiff must prove to receive damages for the new tort of “intrusion upon seclusion.” Which one of the following is NOT one of those elements? (a) the defendant’s conduct must have been intentional or reckless (b) the defendant must have invaded the plaintiff’s private affairs or concerns (c) the defendant’s invasion of the plaintiff’s private affairs must have been without lawful justification (d) the plaintiff must have regarded the invasion as highly offensive, causing distress, humiliation, or anguish

True or False 1. Under PIPEDA, the only information that relates to an identifiable individual that is not considered “personal information” is information of the type that would appear on a business card.

TRUE/FALSE 2. The federal privacy commissioner has extensive powers to investigate complaints, but he or she cannot issue binding orders under PIPEDA. TRUE/FALSE 3. Under PIPEDA, an employer who collects personal information from an employee may use that personal information for any purpose that is legal and work-related.

TRUE/FALSE 4. PIPEDA applies to personal information collected, used, or disclosed in the course of commercial activity unless the province in which the organization is located has implemented substantially similar legislation.

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TRUE/FALSE 5. In Ontario, it is illegal for an employer to conduct video surveillance of a non-union employee in the workplace without the employee’s written consent.

TRUE/FALSE 6. In R v Cole, the Supreme Court of Canada held that a person who uses an employerowned computer for personal use at work does not have a reasonable expectation of privacy in that computer, even where such personal use was allowed by the employer.

TRUE/FALSE 7. Under PIPEDA, an organization should never make providing consent to the collection of personal information a precondition for supplying a product or service.

TRUE/FALSE 8. Under PIPEDA, an individual’s consent to the collection or use of his or her personal information must always be in writing.

TRUE/FALSE 9. In Wansink v TELUS Communications Inc., the Federal Court of Appeal held that all of the exceptions that allow for the collection, use, and disclosure of personal information without consent are set out specifically in the Act (PIPEDA).

TRUE/FALSE 10. In unionized workplaces in Ontario, employers are not allowed to conduct video surveillance of employees without their consent.

TRUE/FALSE 11. In deciding whether videotaped evidence obtained outside of working hours is admissible in a grievance hearing, a majority of arbitrators apply the test of “reasonableness” rather than “relevance.”

TRUE/FALSE 12. Ontario has privacy legislation comparable to PIPEDA in only one area: employee health information.

TRUE/FALSE

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13. The collection of biometric data (e.g., using a physical attribute, such as a fingerprint or voice print) from employees has generally been considered contrary to PIPEDA’s principles, regardless of the employer’s motives or the safeguards in place.

TRUE/FALSE 14. A key lesson from the R v Cole decision for employers is that they should have clearly written policies stating, among other things, that an employee’s expectation of privacy on employer-owned devices is limited.

TRUE/FALSE 15. In Eastmond v Canadian Pacific Railway, the Privacy Commissioner and the Federal Court applied the same four-part test to determine the reasonableness of the placement of cameras on the employer’s railway workyards, but they reached opposite conclusions. The Federal Court held that there were less privacy-invasive alternatives that the employer should have pursued.

TRUE/FALSE 16. Ontario is the only province to have privacy legislation that specifically only protects personal health information.

TRUE/FALSE 17. PIPEDA provides for both implied and express forms of consent, depending in the sensitivity of the personal information.

TRUE/FALSE 18. After a serious data security breach, the on-line dating service, Ashley Madison, agreed with the federal Office of the Privacy Commissioner that it will no longer store personal user information indefinitely and information will be deleted at no charge to the user.

TRUE/FALSE 19. Effective November 1, 2018, where there has been a data security breach that creates a “real risk of significant harm” to any individual, the organization must keep records of the breach and notify the Ministry of Labour, affected individuals, and potentially other organizations that were affected by the breach TRUE/FALSE

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20. In Hopkins v Kay, the Ontario Court of Appeal held that the existence of a statutory cause of action under PHIPA does not preclude a common law claim for intrusion upon seclusion because there are differences between the two types of claims.

TRUE/FALSE

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Chapter 10: Answer Key Multiple choice 1. b 2. d 3. a 4. c 5. d 6. b 7. b 8. d 9. b 10. c 11. d 12. d 13. b 14. a 15. d True or False 1. true 2. true 3. false 4. true 5. false 6. false 7. false 8. false 9. true 10. false 11. true 12. true 13. false 14. false

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15. false 16. false 17. true 18. true 19. false 20. true

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Chapter 11: Navigating the Employment Relationship Multiple choice 1. In the case of Kohler Canada Co. v Porter, the court found that the non-competition clause was unenforceable because: (a) there was no consideration given for the new obligation (b) the non-competition clause was overly broad (c) neither of the above (d) both of the above 2. In non-unionized workplaces, which one of the following steps in the progressive discipline process is often eliminated because of its legal implications? (a) verbal warning (b) written warning (c) suspension with pay (d) suspension without pay 3. In Reininger v Unique Personnel Canada Inc., the court held that: (a) the non-union employer had the right to suspend Reininger without pay (b) the non-union employer did not have the legal right to suspend Reininger because it was non-union and there was no express provision in its employment contract to allow such a suspension (c) the non-union employer had the right to suspend Reininger but the suspension was unreasonably long and so constituted constructive dismissal (d) the non-union employer did not have the right to suspend Reininger because he lost his licence due to substance abuse and therefore was protected by the Human Rights Code 4. Which of the following employer actions may constitute constructive dismissal for non-union employees? (a) suspension without pay (b) probation (c) temporary layoffs (d) all of the above 5. Condonation refers to a situation where: (a) an employer is aware of misconduct but takes no disciplinary action within a reasonable time (b) the employment contract is ambiguous and therefore will be interpreted against the employer

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(c) the employment contract no longer reflects the employment relationship (d) the termination clause in the employment contract is unenforceable 6. The practice of progressive discipline first arose: (a) in unionized workplaces (b) in non-unionized workplaces (c) in the public sector (d) none of the above 7. Vicarious liability refers to a situation where: (a) the employer is held legally responsible for the actions of its employees (b) the employer serves alcohol at company-sponsored events (c) the onus is on the employer to prove that it was not negligent (d) none of the above 8. In Daley v Depco International Inc., the judge found that: (a) the employee was wrongfully dismissed because the incidents of misconduct were not similar in nature (b) the employee was not wrongfully dismissed because progressive discipline is less applicable in the common law context (c) the employee was wrongfully dismissed because dismissal with cause is the “capital punishment” of employment law and only the most serious misconduct warrants it (d) the employee was not wrongfully dismissed because it is the quality, not the similarity, of the accumulated misconduct that matters 9. In Bennett v Sears Canada Inc., an HR representative provided advice via email to the plaintiff regarding her eligibility for its retirement benefits that was incorrect and contrary to the plain language in the employer’s policy manual. In that case, the court held: (a) in favour of the employer, because the HR representative’s advice was contrary to the plain language in the employer’s policy manual (b) in favour of the plaintiff, because the information provided by the HR representative became part of her employment agreement with the employer (c) in favour of the employer, because the policy manual was part of the plaintiff’s original written employment contract and overrode information provided by email (d) in favour of the plaintiff, because there is a power imbalance between employees and employers and employees should not be misled.

10. Well-drafted employer policy manuals serve several important purposes. Which one of the following statements related to an employer policy manual is NOT true?

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(a) it should be provided before the employee begins work (b) it should assure employees that the steps laid out in the progressive discipline policy will be carefully followed (c) it should make employees aware of the consequences of failing to follow the policies (d) it provides a convenient means for making relatively minor changes to company rules 11. A change to an employee’s employment contract is more likely to constitute constructive dismissal if it is: (a) an “across the board” change that affects many employees, rather than just one employee (b) a minor change (c) done in response to difficult market conditions (d) effective immediately 12. Where more than one employee is affected by a significant change in the terms of employment, usually an employer should provide the same notice of change to all employees based on the: (a) longest notice period to which any of the employees is entitled (b) shortest notice period to which any of the employees is entitled (c) average notice period to which the employees are collectively entitled (d) none of the above 13. Which one of the following is NOT true of fixed-term employment contracts? (a) under the common law, an employer does not need to provide notice of termination when a fixed-term contract is completed (b) under the common law, when an employer inadvertently allows an employee to continue working beyond the expiry date, the fixed-term contract automatically becomes an indefinite-term contract (c) fixed-term contracts should still contain a termination clause that allows either party to terminate the contract on a certain amount of notice (d) fixed-term contracts do not require much attention from the HR department, as they automatically come to an end at the conclusion of the specified term 14. Generally speaking, employers may ask for certain types of medical (functional abilities) information where it is necessary for the proper management of their operations. Which one of the following should an employer usually NOT ask for? (a) the employee’s medical diagnosis (b) the expected date when the employee will be fit to return to work

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(c) information concerning any limitations or restrictions on the employee’s return to work (d) an assessment of duties that the employee will be able to perform on his or her return to work 15. In Trites v Renin Corp. the court held that there is no constructive dismissal where a temporary layoff has been rolled out in accordance with Ontario’s Employment Standards Act. Subsequent cases in Ontario have: (a) confirmed this principle (b) confirmed this principle but only as long as the employer acted reasonably and in good faith in placing the employee on temporary layoff (c) overturned this principle by findng that a temporary layoff may constitute constructive dismissal even where the employer complies with the requirements of Ontario’s Employment Standards Act (d) overturned this principle in some cases while confirming it in others, depending on the specific facts of the case 16. Bruce, a non-union employee, has been temporarily laid off by his employer, who has complied with all of the requirements for a temporary lay-ff under Ontario’s Employment Standards Act. Bruce’s employment contract does not reference temporary layoffs and he is aware of only one other worker who has been laid off from his workplace. In this situation, which one of the following statements is likely true? (a) this temporary layoff will constitute constructive dismissal because there does not appear to be either an express or an implied term in Bruce’s contract of employment permitting it (b) his temporary layoff will not constitute constructive dismissal because the employer has complied with the requirements of Ontario’s Employment Standards Act (c) if Bruce is recalled to the job from which he was temporarily laid off he may refuse to return and sue the employer for reasonable notice damages under the common law (d) Bruce will not be able to successfully argue that there is no implied term in his contract permitting a temporary layoff because a co-worker was previously laid off 17. In Ivic v Lakovic, a taxi cab company was sued by a customer after she had been sexually assaulted by one of its employee drivers. In this case the Ontario Court of Appeal held that: (a) the taxi cab employer was vicariously liable for the driver’s conduct because it had put the driver in a position of authority over the customer (b) the taxi cab employer was not vicariously liable for the driver’s conduct because the customer was drunk at the time

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(c) the taxi cab employer was vicariously liable for the sexual assault because it was reasonably foreseeable that employees might carry out their driver duties in a wrongful manner (d) the taxi cab employer was not vicariously liable because the driver’s misconduct was not intimately connected to his functions; in fact, the employer’s policies discouraged any unnecessary physical contact with customers 18. Under the Merrifield v Attorney General decision, the trial court held that a plaintiff may establish the tort of harassment by meeting a four-part test. Which one of the following is Not one of the four parts of that test? (a) the defendant intended to cause (or had a reckless disregard to causing) emotional stress (b) the defendant’s conduct was outrageous (c) the plaintiff suffered extreme emotional distress (d) the defendant’s outrageous conduct was the actual and proximate cause of the emotional distress (e) the plaintiff showed that he or she suffered a visible and provable illness as a result of the defendant’s actions

True or False 1. Despite the significant number of employment-related statutes, the underlying framework of a non-union employment relationship is the individual contract of employment.

TRUE/FALSE 2. The contents of an employer’s employment policy manual automatically apply to all employees but do not cover independent contractors.

TRUE/FALSE 3. As long as an employer provides sufficient advance notice of any change to the terms of employment, it can unilaterally make even a significant change (such as a drastic decrease in wages) without facing a lawsuit for constructive dismissal.

TRUE/FALSE 4. An employer’s promise not to terminate an employee’s employment if he agrees to accept a new term in his employment contract can never constitute consideration.

TRUE/FALSE

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5. An employee’s refusal to sign a disadvantageous new employment agreement does not usually constitute just cause for dismissal.

TRUE/FALSE 6. Progressive discipline is less applicable in the context of statutory termination or severance pay requirements than it is under the common law.

TRUE/FALSE 7. An employer may not terminate an employee for innocent absenteeism.

TRUE/FALSE 8. Absences caused by a disability should be dealt with outside any attendance management program.

TRUE/FALSE 9. From a legal point of view, salary reviews should be held at the same time as performance reviews.

TRUE/FALSE 10. In Wronko v Western Inventory Service Ltd., the Ontario Court of Appeal held that the fundamental terms of an employment contract can only be changed with the consent of both the employer and the employee.

TRUE/FALSE 11. An employer can be vicariously liable for damages suffered by a third party caused by employees to use hand-held cellphones while driving.

TRUE/FALSE 12. A change to an employee’s employment contract is less likely to constitute constructive dismissal if it is an “across the board” change that affects many employees, rather than just one employee.

TRUE/FALSE 13. Even promoting an employee to a higher, better-paying position may potentially constitute constructive dismissal.

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14. An employer must apply progressive discipline before it can dismiss a non-union employee for cause.

TRUE/FALSE 15. An employer will be vicariously liable for any damages caused by an employee’s actions as long as it approved those specific actions.

TRUE/FALSE 16. There are only two reasons that an employer may request medical information from an employee: to determine whether a temporary absence due to illness or injury is legitimate and to determine whether an employee is fit to return to work after a medically related absence where there are reasonable grounds to question the employee’s fitness or ability to work safely.

TRUE/FALSE 17. Placing employees on probation is increasingly uncommon among employers because it is often not effective in either improving employee performance or preventing wrongful dismissal suits.

TRUE/FALSE 18, If an employer’s progressive discipline process is limited to only three steps, the one step that should not be eliminated is the final written warning as it is essentially mandatory.

TRUE/FALSE 19. Unless an employment contract expressly allows for layoffs (or such a right is implicit because layoffs are common in that workplace or industry), a layoff may constitute a fundamental change in the terms and conditions of employment that triggers wrongful dismissal damages.

TRUE/FALSE 20. To be an implied term of the employment contract, the right to impose a lay-off on a non-union employee must be “notorious” or obvious; otherwise, it will constitute constructive dismissal.

TRUE/FALSE

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21. An employer cannot require an employee to provide a certificate from a qualified health practitioner as evidence of the employee’s entitlement to personal emergency leave under Ontario’s Employment Standards Act. The term “qualified medical practitioner” includes only a physician or a psychologist.

TRUE/FALSE 22. Under the common law, negligent acts by employees may be grounds for just cause termination but employees are not liable to their employers for damages resulting from simple acts of negligence while on the job.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 11: Answer Key Multiple choice 1. d 2. d 3. c 4. d 5. a 6. a 7. a 8. d 9. b 10. b 11. d 12. a 13. d 14. a 15. c 16. a 17. d 18. e True or False 1. true 2. false 3. false 4. false 5. true 6. true 7. false 8. true 9. false 10. false 11. true

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12. true 13. true 14. false 15. false 16. false 17. true 18. true 19. true 20. true 21. false 22. true

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Chapter 12: Resignation and Retirement Multiple choice 1. Paul is a difficult employee who doesn’t like receiving any kind of criticism. After receiving a performance review that clearly upset him, Paul storms out of his boss’s office, yelling, “I resign.” In this situation, the employer should: (a) immediately write a letter accepting the resignation since it will solve a big problem for the employer (b) give Paul time to cool off to see if that’s really what he wants to do (c) accept Paul’s resignation orally and then send a notification out to his co-workers (d) tell everyone in the office how Paul reacted to his performance review and get his co-workers’ input 2. Due to changes in how “age” is defined in Ontario’s Human Rights Code: (a) most employers cannot insist that an employee retire at age 65 but an employee who is dismissed after that age cannot sue for wrongful dismissal damages (b) most employers can now only insist that an employee retire once that employee reaches age 70 (c) most employers cannot insist that an employee retire just because he or she has reached the age of 65 (d) none of the above 3. In Blackberry Limited v Marineau-Mes, a former employee argued that the six-month notice of resignation requirement in his employment contract was unenforceable. The court decided that the requirement was: (a) enforceable because the plaintiff continued to be paid and six months was standard in the industry (b) unenforceable because it was unreasonably long and reflected a power imbalance between the employer and the employee (c) unenforceable because it was, in effect, a non-competition clause (d) unenforceable because the normal notice of resignation requirement is in the range of two to four weeks 4. To ensure that offering an early retirement incentive does not constitute age discrimination, an employer should: (a) present the offer in a neutral way, focusing on contents and eligibility (b) make sure the eligible employee understands the attractiveness of the offer by, for example, holding a number of meetings to explain it (c) arrange teleconferences with retired acquaintances of the employee to discuss the advantages of retirement (d) present the offer through the individual’s immediate supervisor

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5. Which one of the following is NOT a benefit of conducting an exit interview of a departing employee? (a) it can help the employer develop improved retention programs (b) it can uncover issues that could potentially lead to harassment or discrimination claims (c) it provides an opportunity to discuss outstanding legal obligations such as the departing employee’s duty not to disclose confidential information (d) it provides an opportunity for the employee’s direct supervisor to have a final, face-to-face, confidential meeting 6. In Gilbert v Tandet Transport, the court found that Gilbert had not resigned, and instead had been dismissed, because: (a) it was not his fault that his employer could not reach him by phone to advise him whether it was a full-time or part-time position he would be returning to (b) the employer should have indicated the nature of the position he was being recalled to on the recall notice (c) he never formed an intention to resign because he never had enough information to make that decision (d) the employer did not honestly believe that Gilbert had resigned 7. In Betts v IBM Canada Ltd. the issue was whether the plaintiff employee abandoned his job when he failed to fulfil the requirements for applying for disability benefits. In this case: (a) the court held for the employer because, despite numerous and specific requests to do so, the employee repeatedly failed to comply with those requirements (b) the court held for the employee because he was suffering from a serious depressive episode and therefore did not appreciate the urgency of complying with the plan’s requirements (c) the court held for the employee because this was the first time he had applied for disability benefits and therefore he was unfamiliar with its requirements (d) the court held for the employer because employees are held to a high standard of conduct when applying for employer-provided disability benefits

True or False 1. Under current Ontario law, employees in this province are required to retire when they reach 65 years of age.

TRUE/FALSE

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2. Where an employee tenders a resignation but later alleges that the resignation was not voluntary, the onus is on the employee to prove that the resignation was not voluntary.

TRUE/FALSE 3. Under the common law, an employee has an implied duty to provide reasonable notice of resignation just as an employer has an implied duty to provide reasonable notice of termination.

TRUE/FALSE 4. Several years ago, Ontario effectively abolished mandatory retirement at age 65 by amending the Employment Standards Act. TRUE/FALSE 5. An employee who chooses to resign, rather than be fired, is not entitled to wrongful dismissal damages even if it turns out that the employer did not have just cause for termination.

TRUE/FALSE 6. Ontario has no general legislated (statutory) requirement that an employee provide advance notice of resignation.

TRUE/FALSE 7. It is contrary to Ontario’s Human Rights Code for an employer to make an early retirement incentive package available to older workers.

TRUE/FALSE 8. When an employee fails to provide reasonable notice of resignation, the employer has a legal duty to try to mitigate its damages by attempting to find a replacement for that employee.

TRUE/FALSE 9. The test for job abandonment is similar to the test for resignation: do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract.

TRUE/FALSE

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10. Very few occupations satisfy the test that mandatory retirement at a certain age is a BFOR for the job. Three occupations that do satisfy this test are policing, firefighting and aviation.

TRUE/FALSE 11. Lucy is being permanently laid off due to her employer’s own retirement. In this situation Lucy is not entitled to reasonable notice or damages in lieu of reasonable notice under the common law because employers are also entitled to retire without penalty.

TRUE/FALSE

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Chapter 12: Answer Key Multiple choice 1. b 2. c 3. a 4. a 5. d 6. c 7. a True or False 1. false 2. false 3. true 4. false 5. false 6. true 7. false 8. true 9. true 10. true 11. false

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Chapter 13: Dismissal With Cause Multiple choice 1. In Kelly v Linamar Corporation, an employee was dismissed for cause for being charged with, and admitting to, possessing child pornography on his home computer.

In that case, the court found that: (a) the employer had just cause because no employer can be expected to continue to employ someone who is involved in activities that offend societal norms in relation to children (b) the employer did not have just cause because the misconduct occurred entirely on the employee’s own time and equipment (c) the employer did not have just cause to dismiss the employee until he had been convicted of the offence (d) the employer had just cause in these circumstances in light of its prominence within the local community and the employee’s position 2. To establish that it had just cause to dismiss an employee, an employer must show both that the alleged misconduct took place and that the nature or degree of misconduct warranted dismissal, keeping in mind all relevant circumstances. Which one of the following is NOT one of the factors that courts normally consider? (a) the employee’s length of service and disciplinary record (b) whether the misconduct was planned and deliberate or a momentary error in judgment (c) the employer’s size and financial health (d) the nature of the employee’s position 3. In a legal dispute concerning whether or not an employer had just cause to dismiss an employee: (a) the onus is on the employer to show, on a balance of probabilities, that it had just cause (b) the onus is on the employee to show, on a balance of probabilities, that the employer did not have just cause (c) the onus is on the employer to show, beyond a reasonable doubt, that it had just cause (d) the onus is on the employee to show, beyond a reasonable doubt, that the employer did not have just cause 4. Which of the following legal concepts do the courts apply in determining whether an employer had just cause to terminate an employee? (a) near cause (b) ballpark damages

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(c) proportionality (d) none of the above 5. Which one of the following was the landmark Supreme Court of Canada decision that established the need to take a contextual approach in determining whether a dismissal was for just cause? (a) McKinley v BC Tel (b) Weisenberger v Marsh Canada Limited (c) Obeng v Canada Safeway Limited (d) Henry v Foxco Ltd. 6. Which one of the following grounds is typically the most difficult for an employer to prove constitutes “just cause”? (a) conflict of interest (b) incompetence (c) insubordination (d) intoxication 7. Which one of the following statements concerning an employer’s obligation to provide procedural fairness in investigating alleged misconduct is NOT true? (a) the employee should be given ample opportunity to respond to the allegations against him or her (b) the allegations should be investigated in good faith, thoroughly, and promptly (c) the employer should promise that the investigation will remain confidential (d) the decision must be made in good faith and not for an ulterior motive 8. Which one of the following Canadian jurisdictions does not have legislated “unjust dismissal” provisions that provide certain protections to non-union, non-management employees from dismissal without cause? (a) Quebec (b) Ontario (c) Nova Scotia (d) Canada 9. Even an employer’s off-duty conduct may provide just cause for termination in certain circumstances. Which one of the following is NOT one of those circumstances? (a) the employee’s off-duty conduct harmed the employer’s business or reputation (b) the employee’s off-duty conduct lead to a refusal, reluctance or inability of other employees to work with them (c) the employee’s off-duty conduct took place in many different locations

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(d) the employee’s off-duty conduct was a serious breach of the Criminal Code (e) the employee’s off-duty conduct made it difficult for the employer to carry out its functions and/or manage its workforce 10. Carter v 1657593 Ontario Inc. involved the termination of a 20-year service employee for alleged cause after he purchased a stake in a bar that the employers believed created a conflict of interest with his position at their Inn. In that case the court held that: (a) His employers had just cause because the employee called in sick while he was actually working at his recently purchased bar (b) His employers did not have just cause because there was no actual conflict of interest between his position and his purchase of a stake in a bar in a neighbouring community (c) His employers had just cause because they had reasonable grounds for believing that he had a conflict of interest (d) His employers did not have just cause because they were acting in bad faith

True or False 1. The same set of facts relating to misconduct may constitute just cause for one employee but not for another.

TRUE/FALSE 2. The way an employee responds to an allegation of misconduct can be a critical factor in determining whether or not the employer has just cause to dismiss an employee.

TRUE/FALSE 3. One of ABC Company’s largest customers has just gone bankrupt, and it needs to downsize 10% of its workforce to remain in business. In this situation, ABC Company has just cause under the common law to dismiss the affected employees.

TRUE/FALSE 4. In a legal dispute arising out of a termination, justification for dismissal can be based on facts discovered after dismissal.

TRUE/FALSE 5. An employee can eliminate the risk of being fired for just cause for inappropriate comments made in a social blog by writing anonymously and using aliases for the names of people referred in the organization.

TRUE/FALSE

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6. To establish just cause under the common law, an employer must prove, on a balance of probabilities, that the employee’s misconduct was “wilful.”

TRUE/FALSE 7. In a situation involving sexual harassment at the workplace, courts are more likely to find just cause where the misconduct was done by a supervisor rather than by a nonsupervisory employee.

TRUE/FALSE 8. Conduct that occurs offsite, during the social component of a business meeting, is considered part of the employment relationship for purposes of establishing just cause.

TRUE/FALSE 9. An employer that alleges dishonesty as the ground for just cause dismissal may be required to meet a higher standard of proof than a balance of probabilities.

TRUE/FALSE 10. If any part of an employee’s absences results from a disability, an employer cannot rely on those absences in determining whether it has just cause to dismiss an employee for excessive absenteeism.

TRUE/FALSE 11. A court may find just cause for dismissal based on the fact that the employee lied or tried to conceal the misconduct, even where the misconduct itself was not serious enough to constitute just cause.

TRUE/FALSE 12. An employee can be disciplined or fired for cause based on online postings or blogs made outside of working hours.

TRUE/FALSE 13. The greater the degree of trust required for a position, the more likely it is that a court will find that an employee’s misconduct constitutes just cause under the common law.

TRUE/FALSE

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14. Employers who use the tactic of making an ultimatum such as “accept this severance package or be fired for cause and be ineligible for EI” may be liable to the dismissed employee for additional damages as a result.

TRUE/FALSE 15. If an employer is alleging just cause for dismissal, it should set out in very specific terms the reasons for the dismissal.

TRUE/FALSE 16. Employers are entitled to rely on “after-acquired cause” in supporting dismissal for cause but only if the after-acquired cause relates or is similar to the original reasons for the dismissal for cause.

TRUE/FALSE 17. An employer’s failure to warn an employee after each complaint of harassment that his or her job is in jeopardy if the behaviour is not corrected is fatal to its claim of dismissal for cause.

TRUE/FALSE 18. Common law courts encourage employees to secretly record conversations with their supervisors if it is done to provide evidence in wrongful dismissal cases.

TRUE/FALSE 19. The standard for dismissing, without notice, an employee who is on probation is lower than the normal standard which requires a finding that the employee fundamentally undermined the employment relationship. For a probationary employee the standard is one of “suitability”.

TRUE/FALSE

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Chapter 13: Answer Key Multiple choice 1. d 2. c 3. a 4. c 5. a 6. b 7. c 8. b 9. c 10. b True or False 1. true 2. true 3. false 4. true 5. false 6. false 7. true 8. true 9. true 10. true 11. true 12. true 13. true 14. true 15. false 16. false 17. false 18. false 19. true

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Chapter 14: Termination and Severance Pay Requirements Under the Employment Standards Act Multiple choice 1. Under Ontario’s ESA, what is the minimum statutory termination notice or pay in lieu of notice required for an employee who has worked for an employer for 4½ years and who is permanently laid off at the same time as 49 other employees? (a) 4 weeks (b) 5 weeks (c) 8 weeks (d) 12 weeks 2. Under Ontario’s ESA, a layoff will be considered temporary where: (a) the employee is off for no more than 13 weeks in any period of 20 consecutive weeks (b) the employee is off for no more than 35 weeks in any 52-week period (c) the employee is represented by a union (d) all of the above 3. An employee who decides to begin a court action for wrongful dismissal after filing a claim under the ESA must withdraw the statutory claim within: (a) one week of filing the claim (b) two weeks of filing the claim (c) three weeks of filing the claim (d) four weeks of filing the claim 4. Under Ontario’s ESA, what is the amount of individual termination notice or pay in lieu of notice required for an employee with 7½ years’ service? (a) 7 weeks (b) 7½ weeks (c) 7 months (d) 8 weeks 5. To remain eligible for statutory severance pay, an employee who has received notice of termination and wishes to resign during the notice period must give the employer at least: (a) one week’s written notice (b) two weeks’ written notice (c) three weeks’ written notice

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(d) none of the above 6. Under Ontario’s ESA, to be effective, a notice of termination must: (a) be in writing (b) state the reason for the termination (c) be hand-delivered to the employee (d) all of the above 7. Under Ontario’s ESA, which one of the following is an employer obligated to provide to an employee who is legitimately dismissed for wilful misconduct? (a) advance notice of termination (b) severance pay (c) wages and vacation pay owing (d) none of the above 8. What is the minimum termination and severance payment required under Ontario’s ESA for an employee who has worked for an employer for 13½ years and who is terminated without cause? (The employer has a payroll of $4 million.) (a) 8 weeks’ notice or pay in lieu and 13½ months’ severance pay (b) 8 weeks’ notice or pay in lieu and 13½ weeks’ severance pay (c) 13 weeks’ notice or pay in lieu and 13½ weeks’ severance pay (d) 13½ weeks’ notice or pay in lieu and 13½ weeks’ severance pay 9. The purpose of statutory termination notice or pay in lieu of notice is to: (a) provide the employee with time to find a comparable job while still receiving income (b) recognize the employee’s loss of benefits and seniority in the job (c) punish the employer for wrongfully dismissing the employee (d) all of the above 10. The choice of whether an employee who is terminated without legal cause will continue working throughout the notice period or receive pay in lieu of notice is made by: (a) the dismissed employee (b) the Ministry of Labour, Director of Employment Standards (c) the employer (d) the employer and dismissed employee, jointly 11. To qualify for statutory severance pay, an employee must have worked for the employer for at least: (a) one year

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(b) two years (c) five years (d) ten years 12. Under the ESA’s continuity of service rule, employees who continue to work for a new owner of a former employer’s business retain their length of service. However, there is an exception where there is a gap between the employee’s employment with the former employer and the new employer of at least: (a) 10 weeks (b) 13 weeks (c) 26 weeks (d) 35 weeks 13. With the agreement of the Director of Employment Standards, an employer may make statutory severance payments in installments as long as the installment period does not exceed: (a) one year (b) two years (c) three years (d) five years 14. Under Ontario’s ESA, an order to pay termination or severance pay cannot exceed: (a) $10,000 per employee (b) $15,000 per employee (c) $25,000 per employee (d) none of the above 15. Susan has worked for XYZ Company as a cashier for 9½ years. Two years ago, she quit her job with XYZ to work for a competitor, but after only two months, she realized that she had made a mistake, and XYZ Company rehired her. Now, XYZ Company is closing down and Susan will be permanently laid off. Under the ESA, how much termination notice or pay in lieu of notice does XYZ Company owe Susan? (a) 1 week (b) 2 weeks (c) 8 weeks (d) 9 weeks 16. Mass termination requirements under the ESA: (a) replace the individual notice requirements under the ESA (b) are in addition to individual notice requirements under the ESA Copyright © 2019 Emond Publications. All rights reserved.

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(c) require the employer to provide an employee with a monetary package rather than allowing the employer to provide working notice instead (d) are only available to non-unionized workers 17. An employee who is hired for a fixed term or task is not entitled to ESA termination notice or pay in lieu of notice unless that term or task lasts more than: (a) 3 months (b) 6 months (c) 9 months (d) 12 months 18. Farah is permanently laid off effective March 1. However, her employer receives a big order a week later. It wants to bring Farah and the other permanently laid-off workers back temporarily to fulfill this single order but only if it does not trigger a new notice period. Under Ontario’s ESA, this is allowed as long as the returned workers do not work beyond: (a) a 13-week period after their employment is terminated (b) a 17-week period after their employment is terminated (c) a 20-week period after their employment is terminated (d) a 26-week period after their employment is terminated 19. Yesterday afternoon, just before she was leaving work for the day, Ivana’s supervisor came up to her and the five other workers in her department to give them some bad news. The employer would be eliminating their department, and they would all be laid off in five to six months’ time. None of the employees in the department has more than five years’ service. Which of the following is true? (a) the supervisor’s comments start the statutory notice period running because the employer has given the employees far more notice than is required under the ESA (b) the statutory notice period has not started running yet because the exact date of termination is not clear (c) the statutory notice period has not started running yet because the supervisor did not give the notice in writing (d) both b and c 20. The mass notice requirements under Ontario’s ESA apply when: (a) 50 or more employees are terminated within four consecutive weeks (b) 100 or more employees are terminated within four consecutive weeks (c) 50 or more employees are terminated within 13 consecutive weeks (d) 100 or more employees are terminated within 13 consecutive weeks 21. Which one of the following is NOT one of the exceptions to the requirement to provide notice of termination (or pay in lieu of notice) to a dismissed employee?

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(a) where an employee is temporarily laid off (b) where an employee has been guilty of misconduct, disobedience, or neglect of duty that is not trivial and has not been condoned by the employer (c) where an employee refuses reasonable alternative work (d) where an employee is terminated during or as a result of a strike or lockout at the workplace 22. Sometimes an employer provides a payment to a dismissed employee on a voluntary basis, even though it believes it has just cause. To ensure that this payment cannot be used later on in court to argue that the employer effectively admitted lack of just cause, the employer should clearly indicate in writing that the payment is made: (a) based on frustration of contract (b) as part of a settlement negotiation (c) on a without prejudice basis (d) on a contra proferentem basis 23. After 3 ½ years of employment, James’ employer, Oldco, sold its business to Newco.

James was immediately hired by Newco and he worked there for 2 years before he was permanently laid off. Assuming Newco has a payroll of $2.25 million, under Ontario’s ESA what does Newco owe James in these circumstances? (a) 2 weeks’ notice or pay in lieu of notice of termination (including benefits), plus 2 weeks’ severance pay (b) 2 weeks’ notice or pay in lieu of notice of termination (including benefits), and no statutory severance pay because James does not have 5 years’ service with Newco (c) 5 weeks’ notice or pay in lieu of notice of termination (including benefits), plus 5 ½ weeks of severance pay (d) 5 weeks’ notice or pay in lieu of notice of termination (including benefits), and no statutory severance pay 24. Under Ontario’s ESA, employees who are permanently laid off: (a) have the same statutory entitlements as other terminated employees (b) have fewer statutory entitlements than other terminated employees (c) have greater statutory entitlements than other terminated employees (d) do not have any statutory entitlements as they are being laid off, not terminated

True or False 1. The primary purpose of statutory severance pay is to provide the dismissed employee with income while searching for a comparable job.

TRUE/FALSE

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2. The maximum amount of statutory severance pay payable under the ESA is 20 weeks’ pay.

TRUE/FALSE 3. Joe’s employment contract states that he may be temporarily laid off for a period of up to 12 months. This provision is void, as an employer cannot effectively “contract out” of the ESA by negotiating a term that allows for a temporary layoff period that is longer than that provided under the ESA. TRUE/FALSE 4. Under Ontario’s employment standards legislation, a written notice of termination must set out the reason for the termination.

TRUE/FALSE 5. Pay in lieu of termination notice must be paid to an employee, at the latest, either seven days after the employee is terminated or on the employee’s next regular pay day, whichever is later.

TRUE/FALSE 6. Under Ontario’s employment standards legislation, employers are never required to provide statutory notice of termination to employees who are hired for a fixed term or task.

TRUE/FALSE 7. Under Ontario’s employment standards legislation, a mass termination occurs where 50 or more employees are terminated at an employer’s establishment within a sixmonth period.

TRUE/FALSE 8. Under Ontario’s ESA, an employer must maintain an employee’s benefits during the statutory notice period.

TRUE/FALSE 9. Under Ontario’s ESA, a dismissed employee has a duty to mitigate his or her damages by looking for a comparable job in order to remain eligible for statutory termination notice or pay in lieu of notice, or statutory severance pay.

TRUE/FALSE

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10. Under Ontario’s ESA, the exceptions to the termination notice or pay in lieu provisions are similar, but not identical to, the exceptions to the severance pay requirements.

TRUE/FALSE

11. Under the ESA, a “termination” that triggers termination notice or pay in lieu of notice obligations includes a situation where the employer stops employing the individual because of bankruptcy or insolvency.

TRUE/FALSE

12. A notice of mass termination is not effective until the employer submits the necessary form to the Director of Employment Standards and posts a copy of that form in the workplace.

TRUE/FALSE

13. “Bumping” occurs where a laid-off employee displaces another employee on the basis of seniority.

TRUE/FALSE

14. In the Bombardier decision, the Ontario Court of Appeal found that the “sale of part of a business” under section 9 of the ESA does not include the outsourcing of jobs.

TRUE/FALSE

15. George has worked for his small, family-owned employer for 30½ years. Under Ontario’s ESA, if George is terminated without just cause, he is entitled to only 8 weeks’ termination notice, or pay in lieu of notice with no statutory severance pay.

TRUE/FALSE

16. The mass notice requirements under Ontario’s ESA do NOT apply if the employer is terminating 10% or less of its workforce at an establishment and none of the terminations is caused by the permanent discontinuance of part of the employer’s business.

TRUE/FALSE

17. Under Ontario’s ESA, statutory severance pay includes credit for partial years, but termination notice (or pay in lieu of notice) does not.

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TRUE/FALSE

18. Gillian’s large employer provides her with 12 months’ notice of termination. Since this notice period is far in excess of the notice required under Ontario’s ESA (and therefore is a “greater benefit”), the employer does not have to provide her with statutory severance pay.

TRUE/FALSE

19. An employee who both retains recall rights and is entitled to statutory severance pay must choose to either keep the recall rights and not receive severance pay immediately or give up his or her recall rights.

TRUE/FALSE

20. Attempts to “soften” the message of termination by hinting at the possibility of other positions in the organization becoming available soon may negate the termination notice.

TRUE/FALSE

21. Robyn receives a termination notice indicating that it will become effective “sometime in the next 120 days, depending on operational needs”. This notice meets the requirement for written notice of termination under the ESA. TRUE/FALSE

22. Under Ontario’s ESA a permanent layoff is a deemed termination. This means that employees who are permanently laid off for economic reasons have the same statutory entitlements on termination as other terminated employees.

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapter 14: Answer Key Multiple choice 1. c 2. a 3. b 4. a 5. b 6. a 7. c 8. b 9. a 10. c 11. c 12. b 13. c 14. d 15. c 16. a 17. d 18. a 19. d 20. a 21. b 22. c 23. d 24. a

True or False 1. false 2. false 3. true 4. false 5. true 6. false

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7. false 8. true 9. false 10. true 11. true 12. true 13. true 14. false 15. true 16. true 17. true 18. false 19. true 20. true 21. false 22. true

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Chapters 15 and 16: Dismissal Without Cause and Post-Employment Obligations Multiple choice 1. Which of the following is NOT one of the factors a court will consider in determining reasonable notice under the common law? (a) the employee’s age (b) the employee’s length of service (c) the employer’s size and financial health (d) the employee’s position 2. Which of the following factors is NOT considered by a court in determining whether an employment contract has been frustrated in the case of prolonged employee illness? (a) sick pay provisions in the employment contract (b) the length of employment (c) the age of the employee (d) the nature of the illness 3. An employer may require a dismissed employee to sign a release before providing her with: (a) statutory termination and severance pay (b) payment related to the common law reasonable notice period (c) neither of the above (d) both of the above 4. According to Mifsud v MacMillan Bathurst, an employee who has been constructively dismissed has a duty to mitigate by taking the altered job offered by the employer where: (a) the salary and working conditions remain the same and the working relationships are not acrimonious (b) the employee is in a non-supervisory position (c) the employer is relatively large (d) all of the above 5. Wrongful dismissal actions may be heard in Small Claims Court as long as the claim is for: (a) $5,000 or less (b) $10,000 or less (c) $20,000 or less

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(d) $25,000 or less 6. Under the federal Employment Insurance Act, an employer must issue a record of employment within: (a) 5 calendar days of the employee’s interruption of earnings (b) 7 calendar days of the employee’s interruption of earnings (c) 10 calendar days of the employee’s interruption of earnings (d) 14 calendar days of the employee’s interruption of earnings 7. Under which of the following employment statutes is it possible for an employee to be reinstated? (a) the Employment Standards Act (b) the Human Rights Code (c) the Occupational Health and Safety Act (d) all of the above 8. An employee whose hours of work are unilaterally reduced from 40 hours to 28 hours per week may have a common law claim against the employer based on: (a) the employer’s failure to mitigate (b) constructive dismissal (c) condonation (d) reformulated Wallace damages 9. In Honda Canada Inc. v Keays, the Supreme Court of Canada decided that Wallace damages for an employer’s bad-faith conduct in the manner of dismissal should: (a) be given as an extension of the reasonable notice period (b) reflect actual damages suffered (c) go beyond compensating the employee where the employer’s conduct is deserving of punishment (d) only be granted where the employer has committed an independent actionable wrong 10. In Honda Canada Inc. v Keays, the Supreme Court of Canada overturned the Ontario Court of Appeal’s decision. Which of the following reflects one of the Supreme Court’s rulings in that case? (a) Keays’ reasonable notice period should be increased because Honda is such a large company (b) Keays should not receive an extension to his notice period based on Wallace-type damages (c) Keays’ punitive damages award should be reduced to $100,000 because Honda’s conduct was not as serious as the trial judge said it was

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(d) Honda should not have insisted that Keays meet with its own medical doctor 11. In Evans v Teamsters Local Union No. 31, Evans was an employee who was fired without just cause. After several months of unsuccessful negotiations over the size of his severance package, the employer told Evans to return to his former position and work out the rest of his reasonable notice period. Evans rejected this offer and sued the employer for wrongful dismissal damages. This case went all the way to the Supreme Court of Canada, which decided that: (a) Evans was entitled to punitive damages because of the harsh way in which his employer had treated him during the negotiations (b) Evans was entitled to reasonable notice damages of 22 months, based on the Bardal factors (c) Evans was not entitled to any wrongful dismissal damages because he had tried to blackmail his former employer into hiring his wife (d) Evans was not entitled to any wrongful dismissal damages because he failed to mitigate his losses by returning to the job from which he had been previously terminated to work out his notice period 12. Under the common law, frustration of contract often relates to: (a) culpable absenteeism (b) innocent absenteeism (c) chronic lateness (d) off-duty misconduct 13. Before the Honda Canada Inc. v Keays decision, a “Wallace-type” extension of the reasonable notice period was given where: (a) the dismissed employee was lured away from another job (b) the manner of dismissal was unduly harsh or unfair (c) the dismissed employee was too old to find another job easily (d) the dismissed employee tried to mitigate his or her losses 14. A dismissed employee’s “duty to mitigate” applies under: (a) the common law (b) the Employment Standards Act (c) both of the above (d) neither of the above 15. To determine what the termination notice or payment in lieu of notice period should be for an employee who is dismissed without just cause, the employer needs to look to which three areas? (a) the employment contract, the Human Rights Code, and the common law

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(b) the Employment Standards Act, the common law, and the Canadian Charter of Rights and Freedoms (c) the employment contract, the Employment Standards Act, and the common law (d) the Human Rights Code, the Employment Standards Act, and the common law 16. In Boucher v Wal-Mart Canada Corp., the Ontario Court of Appeal held that: (a) the punitive award against Wal-Mart and Boucher’s supervisor should be reduced because the large awards for aggravated damages already contained an element of punishment (b) the punitive award against Wal-Mart and Boucher’s supervisor should be increased because their misconduct was especially serious, placing it “at the highest end of the scale” (c) the punitive award against Boucher’s supervisor should be eliminated as it is not fair to make such an award against an individual (d) none of the above 17. Employees’ agreements to repay the cost of their training if they leave their job before a certain date: (a) is unenforceable under any circumstances (b) is unenforceable unless the employer derives no benefit from the training (c) is unenforceable if the employer even suggests that the commitment is “unlikely to be enforced” (d) is usually enforceable 18. In determining what constitutes “reasonable notice” of termination under the common law, generally speaking the longer an employee has worked for an employer: (a) the shorter the reasonable notice period (b) the longer the reasonable notice period (c) the more likely courts are to apply the one month per year of service “rule of thumb” (d) none of the above – length of service is not a relevant consideration in determining the period of reasonable notice 19. In Potter v New Brunswick (Legal Aid Services) the Supreme of Court Canada held that: (a) an employer does not have an unfettered discretion to withhold work from an employee, even when a suspension is with pay (b) as long as it is a paid leave, an employer can put a non-union employee on administrative leave without having to explain the reason for the leave (c) a paid leave does not substantially change the essential terms of an employee’s contract and therefore does not constitute constructive dismissal

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(d) a paid leave will not constitute constructive dismissal if it is under one month in duration 20. Which one of the following is NOT included in calculations of loss of earnings during the reasonable notice period? (a) salary and commissions (b) estimated increases in salary and commissions (c) a discretionary bonus that requires employees to be in “active service” for the bonus to be paid (d) a discretionary bonus that clearly states that employees will have no entitlement to a bonus during a period of reasonable notice 21. Where there is no genuine issue requiring a trial in a wrongful dismissal action, either party may bring ______________, to ask a judge to resolve the dispute based on the written record. (a) a resolution motion (b) an interim judgment motion (c) an evidentiary motion (d) a summary judgement motion 22. Generally speaking, a successful party in a court case is entitled to be reimbursed for costs from the other party on a partial indemnity basis which is approximately: (a) 40% of total legal costs (b) 60% of total legal costs (c) 75% of total legal costs (d) 85% of total legal costs 23. Employers should provide employees with a reasonable opportunity to obtain independent legal advice when reviewing a proposed employment contract. A reasonable opportunity generally consists of at least: (a) 1–3 business days (b) 3–5 business days (c) 5–7 business days (d) 7–9 business days 24. Three elements are necessary to initially establish the tort of defamation. In the context of a negative job reference, which one of the following is NOT one of those elements? (a) The employer’s comments were untrue (b) The employer’s comments would tend to lower the former employee’s reputation in the eyes of a reasonable person

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(c) The words referred to the former employee (d) The words were communicated to at least one person other than the former employee 25. Employers who provide a negative job reference have two possible defences against the tort of defamation. If the statements were true they have the defence of “justification”. If the statements were made without malice or recklessness they have the defence of: (a) reference privilege (b) qualified privilege (c) protected privilege (d) standard of care privilege 26. In Sateria (Shandhai) Management Limited v Vinall, the former employer sued the plaintiff, Vinall, for breach of his common law duties of confidentiality and loyalty. It alleged that he had shared confidential information about a mill that was for sale with a competitor he was hoping to get employment with. In that decision the court held that: (a) Vinall had not breached his common law duties as the information was not confidential (b) Vinall had not breached his common law duties as he was not a fiduciary employee (c) Vinall had breached his common law duties but no damages were awarded because no damages had been suffered (d) Vinall had breached his common law duties and significant damages were awarded against him

True or False 1. When a contract of employment has been legally frustrated because of an employee’s prolonged disability, the employer is also free from liability under human rights legislation.

TRUE/FALSE 2. The concept of constructive dismissal is recognized under both the common law and under Ontario’s ESA. TRUE/FALSE 3. There is an unofficial “cap” of 12 months on wrongful dismissal damages for nonsupervisory employees.

TRUE/FALSE

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4. Under the common law, all non-union employees who are dismissed without just cause are entitled to receive reasonable notice (or pay in lieu of reasonable notice) upon termination.

TRUE/FALSE 5. The termination clause in Joseph’s employment contract does not provide him with as much termination notice, or pay in lieu of notice, as that required by Ontario’s Employment Standards Act. If Joseph is terminated without just cause, the clause is null and void, and Joseph should go to the Ministry of Labour to enforce his rights under the ESA. TRUE/FALSE 6. Where an employment contract contains an enforceable notice of termination provision, the employer does not have an implied duty to provide “reasonable” notice of termination or pay in lieu of such notice under the common law.

TRUE/FALSE 7. Courts may award a longer reasonable notice period to an employee who is pregnant at the time she is wrongfully terminated.

TRUE/FALSE 8. An employer should not give working notice to an employee who is unable to use the notice period to look for a new job, such as an employee who is on sickness, pregnancy, or parental leave.

TRUE/FALSE 9. In RBC Dominion Securities Inc. v Merrill Lynch Canada Inc., the Supreme Court of Canada held that only management employees who are also fiduciaries have an implied duty of good faith that includes the duty to try to retain employees.

TRUE/FALSE 10. A minor geographic relocation, such as moving an office or plant from one part of a city to another part, typically does not constitute constructive dismissal.

TRUE/FALSE

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11. Where an employer serves an offer to settle before trial that is as good as, or better than, the judgment that the wrongfully dismissed employee eventually obtains at trial, the employer may be awarded costs from the date of its offer.

TRUE/FALSE 12. The common law duty not to disclose confidential or proprietary information obtained as a result of employment applies equally to managerial and non-managerial employees.

TRUE/FALSE 13. The obligation of fiduciary employees not to take advantage of corporate opportunities presented because of their former employment does not prevent such employees from accepting a contract offered, without solicitation, by a former client.

TRUE/FALSE 14. The single most effective way for an employer to limit its liability when terminating non-union employees is to negotiate a fair and enforceable termination clause in the employment agreement.

TRUE/FALSE 15. There is no right of reinstatement for wrongful dismissal under the common law.

TRUE/FALSE 16. In Evans v Teamsters Local Union No. 31, the majority of the Supreme Court of Canada held that the duty to mitigate could require an employee to return to work for the employer that dismissed him as long as the employee received the same salary during the remainder of the notice period.

TRUE/FALSE 17. According to the Supreme Court of Canada’s decision in Honda, an employer’s insistence on dealing with an employee directly, rather than through an employee’s lawyer, is outrageous behaviour that should result in punitive damages being awarded.

TRUE/FALSE 18. Employees who have worked for short periods typically receive less than one month’s notice for each year of service.

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TRUE/FALSE 19. It is highly unlikely that a 70-year-old machine operator with 20 years’ service would receive a reasonable notice damages award in excess of 12 months.

TRUE/FALSE 20. A termination clause that does not expressly require the employer to maintain benefit coverage during the statutory notice period may be unenforceable, even if the employer in fact maintains such coverage.

TRUE/FALSE

21. Employees who allege that they have been constructively dismissed must resign and sue for damages; they cannot remain on the job and sue for damages while still employed with that employer.

TRUE/FALSE 22. “Special damages” are intended to compensate an employee for the hurt feelings and mental distress that can arise from being terminated.

TRUE/FALSE 23. Ontario’s Court of Appeal has rejected applying the tort of “negligent infliction of mental suffering” in the employment context.

TRUE/FALSE 24. Bertrand recently told his employer that he planned to retire within the next several months. If Bertrand’s employer dismisses Bertrand shortly thereafter, his stated intention to retire is a relevant factor that a court may consider in assessing what constitutes reasonable notice of termination.

TRUE/FALSE 25. Generally-speaking, an employer’s obligation to provide pay in lieu of reasonable notice of termination ends on the date the plaintiff has the opportunity to work fulltime and mitigate all of their damages, regardless of whether the plaintiff took that opportunity.

TRUE/FALSE

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26. After Kenlyn was permanently laid off from her main job, she increased the hours she worked at her “side” job. In this situation all of the monies earned from the second job are considered mitigation income that reduces the amount owed to her by her former employer.

TRUE/FALSE 27. The relatively new “duty of honesty” in contract performance means that an employer is now required to explain a decision to terminate an employee even if it is done on a without cause basis.

TRUE/FALSE 28. Jeremy is being dismissed without cause. His commission sales have increased by over 10% in each of the previous three years before his dismissal. In this situation a court would probably base the commission calculation for the reasonable notice period on his average commissions over the previous three years.

TRUE/FALSE 29. Neither expert evidence nor a recognized psychiatric illness is a prerequisite for an award of aggravated damages for mental stress.

TRUE/FALSE 30. Jury trials are not available if a wrongful dismissal claim goes to trial.

TRUE/FALSE 31. In providing a negative job reference, employers are protected by two possible defences against allegations of defamation. These are the defences of “justification” (i.e. the statements were substantially true) and “qualified privilege” (the statements were made in the context of a job reference).

TRUE/FALSE

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

Chapters 15 to 16: Answer Key Multiple choice 1. c 2. c 3. b 4. a 5. d 6. a 7. d 8. b 9. b 10. b 11. d 12. b 13. b 14. a 15. c 16. a 17. c 18. b 19. a 20. d 21. d 22. b 23. b 24. a 25. b 26. c True or False 1. false 2. true 3. false

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Employment Law for Business and Human Resources Professionals, Revised 4th edition Test Bank: Instructor Version

4. false 5. false 6. true 7. true 8. true 9. false 10. true 11. true 12. true 13. false 14. true 15. true 16. false 17. false 18. false 19. false 20. true 21. false 22. false 23. true 24. false 25. true 26. false 27. false 28. false 29. true 30. false 31. false

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