IDRL 320 Unit 2 Exam Questions and
Answers
What constitutes misrepresentation in the recruitment and hiring process? - Answer-Tort
of deceit and/or contract law of Misrepresentation is when one party presenting or
omitting information that misleads the other party, the other party relied on this
information which resulted in damages.
Fraud = Intent
Negligence = No intent required but duty of care
Tort of Fraudulent/deceit misrepresentation by prospective employer.
Tort of negligent misrepresentation by prospective employer. (ex Queen v Cognos)
Tort of fraud/negligent misrepresentation by job applicant.
What are the necessary elements of an employment contract? - Answer-Capacity to
enter a contract: To protect those who lack the capacity to understand the implications
of the contract (minors, mentally impaired)
Intention to create a legally enforceable contract: Courts apply Objective test (What
would a person of reasonable intelligence assume given the facts?) and Subjective test
(What was the individual thinking at the time the contract was made?)
3 elements: Offer, acceptance and mutual consideration
What is required to modify an employment contract? - Answer-Fresh considerations and
acceptance. If the worker refuses, the employer may be able to provide notice and once
that notice is done, present employee with new contract with new term in there and if
employee wants to continue employment, they are to sign.
Why is discrimination based on race or gender permitted under common law? - Answer-
Common law is heavily influenced by the "Freedom of contract" which means that
capable parties are able to reasonably determine terms of a contract and the law should
have minimal regulation in who can hire who. Judges have taken and held this position
historically. This inaction has allowed discrimination to continue under common law.
What are examples of restrictive covenant clauses? - Answer-non-solicitation: Former
employee is prohibited from attempting to entice customers of former employer to stop
doing business with former employer and do business with them instead.
Non-Disclosure: Prohibited from sharing confidential information that has proprietary
value to the former employer
, Non-Compete: Prohibited from entering a competing business with former employer
What is required of a restrictive covenant clauses? - Answer-Must be to protect
something of value, must be reasonable in scope (time, location restriction), must be
clear and understandable, must be necessary to protect the interest of the former
employer and no other, less restrictive option would be effective.
What methods do judges use to imply contract terms? - Answer-Implied terms in fact: A
judge will read a term into a contract with consideration to past practices, and the
intentions and actions of both parties. And imply a term that is necessary to make the
contract effective.
Implied in law: Judges read these terms into contracts as a matter of legal duty they
believe should be imposed given the nature of the contract. Intention is not relevant.
What are the implied terms that regulate the conduct of employers and employees? -
Answer-Employers: Provide reasonable notice, a reasonably safe worksite, agreed
upon work + remuneration, treat employees with decency, civility and respect, act in
good faith in manner of dismissal
Employees: Act in good faith and fidelity, provide resignation notice, Duty to obey lawful
orders, perform work safely + competently
Why are employment contracts considered ambiguous, and how has common law
evolved to address the ambiguity? - Answer-Contract terms are often left ambigous to
provide for flexibility so the term can be used to address as many issues as possible.
Common law has evolved from its master/servant roots as it has began considering the
power imbalance when making decisions. Judges will interpret terms in favour of the
party that did not write the contract, which is the employee.
What is the parole evidence rule? - Answer-Judges will not consider evidence that
attempts to contradict a clear and unambiguous term. Judges will only allow evidence
regarding a term that is ambiguous (what was said during negotiations and how the
term has been applied in the past).
How are contemporary implied obligations similar to historical common law obligations?
How are they different? - Answer-Historical common law was limited to those in equal
classes and they are rooted in the master servant laws which pre date historical
common law. This created a relationship of subordination, in which employers had close
to absolute authority over workers.
Contemporary implied common law obligations are similar in the sense that a duty to
obey and act in good faith and fidelity ensures the relationship is still one of
subordination.
Answers
What constitutes misrepresentation in the recruitment and hiring process? - Answer-Tort
of deceit and/or contract law of Misrepresentation is when one party presenting or
omitting information that misleads the other party, the other party relied on this
information which resulted in damages.
Fraud = Intent
Negligence = No intent required but duty of care
Tort of Fraudulent/deceit misrepresentation by prospective employer.
Tort of negligent misrepresentation by prospective employer. (ex Queen v Cognos)
Tort of fraud/negligent misrepresentation by job applicant.
What are the necessary elements of an employment contract? - Answer-Capacity to
enter a contract: To protect those who lack the capacity to understand the implications
of the contract (minors, mentally impaired)
Intention to create a legally enforceable contract: Courts apply Objective test (What
would a person of reasonable intelligence assume given the facts?) and Subjective test
(What was the individual thinking at the time the contract was made?)
3 elements: Offer, acceptance and mutual consideration
What is required to modify an employment contract? - Answer-Fresh considerations and
acceptance. If the worker refuses, the employer may be able to provide notice and once
that notice is done, present employee with new contract with new term in there and if
employee wants to continue employment, they are to sign.
Why is discrimination based on race or gender permitted under common law? - Answer-
Common law is heavily influenced by the "Freedom of contract" which means that
capable parties are able to reasonably determine terms of a contract and the law should
have minimal regulation in who can hire who. Judges have taken and held this position
historically. This inaction has allowed discrimination to continue under common law.
What are examples of restrictive covenant clauses? - Answer-non-solicitation: Former
employee is prohibited from attempting to entice customers of former employer to stop
doing business with former employer and do business with them instead.
Non-Disclosure: Prohibited from sharing confidential information that has proprietary
value to the former employer
, Non-Compete: Prohibited from entering a competing business with former employer
What is required of a restrictive covenant clauses? - Answer-Must be to protect
something of value, must be reasonable in scope (time, location restriction), must be
clear and understandable, must be necessary to protect the interest of the former
employer and no other, less restrictive option would be effective.
What methods do judges use to imply contract terms? - Answer-Implied terms in fact: A
judge will read a term into a contract with consideration to past practices, and the
intentions and actions of both parties. And imply a term that is necessary to make the
contract effective.
Implied in law: Judges read these terms into contracts as a matter of legal duty they
believe should be imposed given the nature of the contract. Intention is not relevant.
What are the implied terms that regulate the conduct of employers and employees? -
Answer-Employers: Provide reasonable notice, a reasonably safe worksite, agreed
upon work + remuneration, treat employees with decency, civility and respect, act in
good faith in manner of dismissal
Employees: Act in good faith and fidelity, provide resignation notice, Duty to obey lawful
orders, perform work safely + competently
Why are employment contracts considered ambiguous, and how has common law
evolved to address the ambiguity? - Answer-Contract terms are often left ambigous to
provide for flexibility so the term can be used to address as many issues as possible.
Common law has evolved from its master/servant roots as it has began considering the
power imbalance when making decisions. Judges will interpret terms in favour of the
party that did not write the contract, which is the employee.
What is the parole evidence rule? - Answer-Judges will not consider evidence that
attempts to contradict a clear and unambiguous term. Judges will only allow evidence
regarding a term that is ambiguous (what was said during negotiations and how the
term has been applied in the past).
How are contemporary implied obligations similar to historical common law obligations?
How are they different? - Answer-Historical common law was limited to those in equal
classes and they are rooted in the master servant laws which pre date historical
common law. This created a relationship of subordination, in which employers had close
to absolute authority over workers.
Contemporary implied common law obligations are similar in the sense that a duty to
obey and act in good faith and fidelity ensures the relationship is still one of
subordination.
