HRMT 386 Lecture Notes - Lecture 2: Economic Globalization, Social Reproduction, Precarious Work
2 Jun 2018
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Unit 2
Review Your Progress
You should now be ready to write two- to three-paragraph answers to these
questions:
1. What employee and employer rights and obligations flow from the common
law and from statutory law?
When an employer and an employee strike a bargain in the labour market and
the employee commences work, the employer and employee have entered into
a contract. A contract is a legally enforceable promise or set of promises made
between two parties. This contract between workers and employers is called
a common law contract of employment.
When there is a formal contractual dispute between an employee and an
employer, the matter is often settled in court. When the dispute is about what
(precisely) was agreed to, and the answer cannot be found in the written
employment contract, the courts turn to the common law (i.e., the results of
previous legal decisions) to determine the rights and obligations of the employer
and employee. Common law rights and obligations are important because few
employment contracts contain more than the most basic terms of employment
(e.g., job title, pay rate, vacation entitlement, etc.).
The common law is complex, but some rights and obligations are assumed to be
part of every employment contract unless the contract includes specific language
to the contrary (which almost never occurs).
Common Law Obligations: Employers
The employers’ common law obligations include the duty to provide the
following:
o Work and remuneration: An employer is required to provide an employee
with the wages (often called consideration) that the two parties negotiated.
Indeed, there can be no contract of employment without the provision of
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consideration by the employer. An employer is also required to provide the
worker with an opportunity to work as per their agreement. If the employer
significantly reduces the employee’s hours of work or even lays the employee off,
this is a repudiatory breach of the employment contract. That is to say, the
employer has effectively terminated the employee’s employment.
o Notice of termination: Unless otherwise specified, (e.g., a term contract)
employment relationships are normally considered to continue for an indefinite
period of time. Assuming that employment is indefinite, an employer wishing to
terminate an employee’s contract must normally give the employee reasonable
notice of termination (or pay in lieu of the notice). Employers who find they
have just cause for terminating the employee (e.g., the employer catches the
employee stealing from the company) do not have to provide notice to terminate
the employee. We will examine this issue further in Unit 7.
o A safe worksite: Under the common law, employers are required to provide a
reasonably safe system of work. This obligation has generally been usurped by
occupational health and safety regulations and workers’ compensation
legislation (England, 2008).
Employers are also vicariously liable for their employees’ actions. That means
that the employer is responsible for negligent acts or omissions by employees
when employees are carrying out job-related duties. This reflects the fact that the
employer has the right, ability, and duty to control the employee in the execution
of the employee’s job.
Common Law Obligations: Employees
Employees’ common law obligations include the following:
o Obligations of good faith and fidelity: An employee must act in a manner
that is consistent with advancing the employer’s business interests. For
example, an employee cannot normally operate a business on the side that
competes with the employee’s employer, nor can an employee behave in a way
that undermines the fundamental trust relationship that exists—for example, by
stealing from the employer.
o The duty to obey: Once employed, the employee is the employer’s to
command. While there are common law and statutory limits on what an
employer can demand of an employee, generally speaking, the employee must
obey lawful commands of the employer in the workplace context.
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