Peering into the hole in the law

Common law and the law of contract place the employee on essentially an equal footing with the employer – but we are not all protected equally

From routine observation on any sidewalk during the morning rush, judging by all the commotion, it seems that practically everyone goes to work or has a job of some type.

Off we march to work, most of us probably never thinking about the world of employment rights. We assume that things are well and all will work out. We go to work, get a paycheque, take a vacation, have medical plan coverage, build pensions, look forward to job security (or at least the protections afforded by what we assume is the law) and such.

If push comes to shove and the employer makes a move to end our employment, this is Canada and everyone has rights, right? Don’t we have a vague idea that somehow we will be protected? Don’t we have rights under the law?

For instance, a typical employee has a contract of employment of some description, which is enforceable in common law before the courts of the land. The law protects this typical employee by shielding them from arbitrary and summary termination.

But for more than a few working people, their rights are much different and much less than what legal protection is generally assumed to exist for typical employees.

There are holes in the law.

You may sit on the bus or in traffic beside a working person whose work arrangement falls into a hole in the law. Of course, from simply looking at that person, you could not tell that they lack the same rights as perhaps you have. In fact, the person him or herself may not be aware that their status is different than others. For these working people, there may be no common law employment protections that are otherwise available to normal employees under common law.

A working person whose work arrangement falls into such a hole may have no right to enforce their employment contract at common law or in the courts. By this, I mean they may lack the right to claim a wrongful dismissal, and the entitlement to reasonable notice that goes with it, in the courts.

For instance, as discussed in prior columns, true independent contractors have no right to make a claim for wrongful dismissal. They are not employees, therefore, they cannot claim wrongful dismissal.

Also, people employed under collective agreements, in other words union members, have no right to bring a claim in the courts for wrongful dismissal when their employment is terminated. Their collective agreement contains the entire formula for adjudication of employment disputes and issues, including dismissal. They are generally barred from making employment claims in the courts, and a court will not hear their claim for wrongful dismissal.

Although this appears to be changing, public officers or employees of crown corporations whose employments subsist specifically at the pleasure of the appointing authority, can be dismissed at will, without any fear by the employer of committing a breach of contract that would otherwise constitute a wrongful dismissal. In many cases, it is the statutory instrument that creates the employment that contains the at-pleasure wording.

People who function as both corporate directors and employees of the same entity – a relatively common arrangement in Canada – can run the risk that their employment might be terminated on the basis set out for that of corporate director, not that of employee. This can be so where the functions of director and employee can be said to be indistinguishable or are not clearly distinguished from each other.

Typically, a terminated director is not owed any notice of termination, whereas terminated employees are generally entitled to some form of notice. So, for an employee to be dismissed on the same basis as that of director, obviously takes away from the employee the right to receive notice.

As discussed in a prior column, partners, who otherwise bear all the trappings of employment (in that they work alongside typical employees, get paid, take vacations, have benefits), are not employees and, should their working arrangement end against their will, have no claim for wrongful dismissal per se.

Canadian employees of foreign consulates within Canada, although they are clearly employees, and are clearly employed in Canada, and have all the trappings of employees, probably have no right to sue their employer for wrongful dismissal in a Canadian court. This is because the foreign employer is protected by what is colloquially called diplomatic immunity, and the Canadian courts have ruled that what happens within the consulate are probably sovereign matters of that foreign state, and therefore beyond what the courts consider their jurisdiction.

So, it is possible for a Canadian, employed within Canada but working in a foreign consulate to have no right to sue for wrongful dismissal at all.

While common law and the law of contract place the employee on an essentially equal footing with the employer and perform a magnificent job of providing security of contract to the employee, we are not all protected equally.

There are holes in the law.

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