Roberto is the sole proprietor of EatDrinkRead, a neighbourhood bookstore and outdoor cafe, and is dealing with a few employment – related problems. Using what you have learned in MGS 350, and in particular what you have learned about workplace law, answer the following questions:
1. Roberto has made an arrangement with Tanya under which Tanya leads book club discussions at the store on Tuesday and Saturday afternoons. Roberto chooses the books (usually new books for sale at the bookstore), the timing and the length of the discussions, and snacks are provided by the café. Interested customers sign up on the bookstore website and pay a fee to the bookstore. Half of the money collected goes to pay Tanya.
a. Is Tanya an employee or an independent contractor? Explain the reasons for your answer. ( 3 marks)
b. Why is this distinction important? Give two consequences of your answer in a. (2 marks)
2. Roberto has a store policy that prohibits staff from displaying tattoos, body piercings or any other type of body art. Roberto hired a new server after conducting a telephone interview, and when she arrived for her first day of work, Roberto was surprised to see that she had a red bindi (red dot) tattooed on her forehead. The server explained that it was part of a religious observance. Roberto told the server that she if she wants to work at the café, she has to have the bindi removed.
a. What statute is relevant to this situation? (1 mark)
b. Has Roberto discriminated against the server? In your answer, indicate the relevant protected/prohibited ground and discuss the concept of BFOR. ( 3 marks)
c. What should the server do in this situation? ( 1 mark)
3. Elsa, a part-time salesperson who works evenings in the bookstore, came to speak to Roberto about a situation that was making her uncomfortable. According to Elsa, the evening store manager, Jason, has been making comments about Elsa’s clothing, body and overall appearance since she began work a few months ago. At first Elsa just ignored the comments, but they have become more personal, so Elsa asked Jason to stop. The comments have only increased, and last night, Jason pressed his body against Elsa’s when they were both behind the cash register. Elsa told Roberto that she needs his help to deal with the situation.
a. What kind of situation is this? ( 1 mark)
b. What are Roberto’s obligations in this situation? What should he do? ( 2 marks)
c. If Roberto does not do anything, what can Elsa do? ( 2 marks)
4. The business has suffered during the recent Covid-19 restrictions and Roberto needs to reduce his expenses. He decides to fire Julian, one of the two cooks, since the outdoor café is not very busy. Julian is a good worker and has had the job for 5 years. He is 55 years old and support his aging mother and college-student son. Julian has an employment contract, but it doesn’t say anything about termination.
a. What factors are relevant to determine the amount of reasonable notice that Roberto must give Julian under the common law? How would these factors apply in this situation? ( 3 marks)
b. Assume that Roberto pays Julian less that he is entitled to, and Julian sues Roberto for wrongful dismissal. Julian turns down a job offer from a diner because the pay is less than what he was earning at EatDrinkRead and because he believes that the money he will recover in his lawsuit will allow him to take it easy for a while. Will Julian’s decision affect the outcome of his lawsuit against Roberto? Explain your answer. ( 2 marks)
5. Roberto’s best salesperson has recently quit and has taken a job at a bookstore a few blocks away. Roberto is furious and shows you the employment agreement, which included the following term : “You agree that upon your resignation or termination of employment, you will not carry on, or be employed by a business that competes with EatDrinkRead in Toronto for one year after your employment ends”.
a. What type of clause is this? (1 mark)
b. Is this clause valid? Explain your answer. (3 marks)
c. Assuming it is valid, what can Roberto do? (1 mark)
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