BUAD 374 Employment Law – Fall 2020

Assignment #1:

This assignment will be marked out of 10. It is due to be submitted to Turnitin

on Friday, October 2, 2020.

Mia was born and raised in Germany. As a young adult, she began to experience

emotional problems, marked by bouts of anxiety, episodes of spontaneous crying,

and withdrawal. At times her depressive episodes led to thoughts about suicide,

but she never acted on them. She sought help from her family doctor, and received

counselling, which enabled her to continue working without significant absences.

Mia emigrated to Canada five years ago. She married and settled in Kelowna. She

then applied for a job as a hostess at the Withered Vine Shoppe, a wine and tapas

dispensary downtown. The job paid minimum wage, and there was no group

benefits plan associated with the offer. The Shoppe also had no policy regarding

sick leave.

When Mia applied for the hostess position she did not inform the owner who

interviewed her, Herb Hartless, about her history of emotional problems. She felt

that they were entirely personal, but she was also concerned that the social stigma

associated with mental health matters might undermine her chances of getting the

job.

Herb was impressed with Mia, and she was the successful applicant. Her duties at

the Shoppe consisted of helping to open the bar, preparing the tapas, serving

customers and entering sales information in the Shoppe’s computer system.

Mia worked 42 hours per week, but she was only paid for 40 hours. She banked

the other two hours, which she utilized to leave early on Friday afternoons in order

to attend therapy sessions. She told Herb that she was receiving counselling for

marital problems. While this was true, Mia did not inform Herb that it was a

psychiatrist she was seeing, not a counsellor, and that she was receiving powerful

medication for acute depression.

After a year of employment at the Shoppe, Mia’s emotional issues began to surface

at the worksite. Her attitude changed. She became curt and impatient with

customers. Herb noticed, too, that her personal appearance seemed to be

deteriorating, and that she was becoming “distant”. Most concerning, however,

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was the fact that Mia commenced, on occasion, to burst suddenly into tears in front

of customers, which required her to step outside to collect herself.

She told Herb that she was having marital problems and that she was under stress.

Herb explained to her that customer service at the Shoppe was very important, that

he was concerned about her attitude, and that she had to keep her personal

problems away from the workplace. Mia told him that she would try to do better.

A few weeks later, Herb attended at the Shoppe before opening time and found

Mia in a sleeping bag on the floor. She told him that she and her husband had

parted, and that she had nowhere else to go. Mia again burst into tears. Herb

consoled her, but he also said that she could not sleep at the Shoppe. Mia said she

could stay with a friend until her “personal issues” were resolved.

A few weeks passed. Mia attended at work, but her demeanour was flat. By now,

Herb was coming to believe that several of his other employees would be better

able to deal with the Shoppe’s customers. At least one regular customer had told

Herb that she did not want to be served by Mia, as her manner was “off-putting”.

Then, late one night, Herb received a call from Mia. She told him that she was

“totally stressed out”, she could not sleep or eat, and that she would need “a couple

of weeks off” to “get her head together”. Herb was annoyed, but he agreed to

Mia’s request. He told her, however, that she needed to return to work after the

two weeks’ “rest period” had come to an end.

Two weeks passed. Herb then phoned Mia and reminded her she needed to report

to work the following day. Mia apologized, but said she was “not yet ready”. She

asked for a further two weeks’ leave. In fact, Mia was undergoing daily therapy

with her psychiatrist, but she did not disclose this to Herb.

Herb was upset. He told Mia she need not come to work the following morning,

but that he would call her later in the day.

Assume you are a human resources consultant Herb has retained in the past to

advise regarding hiring and firing issues. After his discussion with Mia, Herb calls

you. He tells you he has had enough of Mia’s “attitude” and that he wants to “let

her go”. He asks you for a memorandum setting out your advice, and a plan for

“dealing with Mia”.

Prepare an opinion memorandum for Herb. It should be 5-6 pages long, inclusive

of any cover page, using 12 point type, and 1.5 line spacing. You should refer to

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any binding statutory provisions that are applicable to this case. Your memo

should also include references to, and a discussion of, at least three binding or

persuasive decisions of courts or tribunals that would be relevant when considering

the issues raised in this case. Preference should be given to decisions of the

Supreme Court of Canada, or the courts and tribunals in the province of British

Columbia, if possible.

The memorandum should be in the form that you would deliver to a client if you

were sitting in your shoes in this real world example. It should be a professional

piece of work. You will know, for example, that if there is litigation resulting from

Herb’s decision relating to Mia, your letter may be disclosed to her, and to the

decision-maker adjudicating the matter, during the course of those proceedings.

You will need to identify the specific legal issues that Herb needs to address in his

decision regarding Mia, as well as the legal tests that courts and tribunals will

apply in British Columbia in order to resolve them.

You will also need to set out a plan of action for Herb in order for him to meet his

legal obligations in this case. That plan of action must discuss in detail the legal

issues, and the legal tests that are applicable to the situation presented. You will

also need to communicate precise recommendations to Herb, and give convincing

reasons for them, having regard to the relevant legal principles.

Please submit your assignment to Turnitin by midnight on October 2, 2020.

Instructions for uploading your assignment (as a Word document only, not a

PDF) have been posted in the Moodle shell for this course.

Please note that I will deduct one full mark from the final grade for this

assignment for every day the assignment is submitted late.

Please note further that all students must prepare and submit this assignment

in order to pass the course.