Unit 2 - Review Your Progress Flashcards
What is the historical basis for the asymmetrical nature of common law obligations?
The favour of the employer in common law obligations is based in master servant law. Employee were tied to employers and required the serve them. Employers, on the other hand were only required to not unreasonably mistreat their employees. This placed more obligations on the employee than the employer and this is still felt in the employment relationship today.
In what ways do the parties’ obligations entrench a power imbalance between employees and employers?
Employer obligations are specific and narrow in focus—requiring them to meet a fairly rudimentary standard. In contrast, employee obligations are sweeping and ongoing, and place a burden of action throughout the employee’s engagement with work. Their obligation for fidelity even extends beyond work hours; employees cannot disparage the reputation of their employer in public
Employer’s obligations do not extend beyond themselves and are laid out very clearly. While employees’ obligations extend beyond working hours and into their personal lives. In some ways, an employees’ job can morally effect the employee. There also appears to be more burden placed on the employee as employers are only required to treat employees well and ensure they are safe. Employer’s are not required to work in the employees best interest but requires the reverse of employee’s.
Why is discrimination based on race or gender permitted under common law?
A refusal to enter into contract relations has not been recognized at common law as giving rise to a liability in tort. This means that no tort of discrimination exists meaning that nothing can be done about discrimination under common law. These sort of issues should be dealt with under the regulatory regime.
What test do judges use to determine if there was an intention to create an employment contract?
There are two test, an objective test and a subjective test. An objective test asks what would a personable person of normal intelligence think if told the circumstances. A subjective test asks what was this person actually thinking at the time? These test help judges figure out if there was the creation of a legally enforceable contract even if one of the parties states there was no contract.
When are issues of mutual consideration most likely to arise?
Issues usually arise with mid-contract amendments. Amendments to the employment contract are also required to have mutual consideration as well as the agreement to the change by the employer and the employee.
Why are employment contracts considered ambiguous, and how has common law evolved to address the ambiguity?
Employment contracts are considered ambiguous because terms can be written into the contract that are not always as clear as they first seem. The idea of hourly pay for hour worked is a good example as who/what determines the hours work? When it comes to dealing with ambiguous contract terms judges can apply the contra proferentem doctrine. The contra proferentem doctrine is a rule of contract interpretation in which a judge interprets an ambiguous contract in a manner that favours the party who did not write the contract. This helps ensure that the party who wrote the contract was not trying to take advantage of the other party by purposly being ambiguous.
How does implying contract terms give judges pseudo-legislative power?
Judges have the apply to imply contract terms based on policy justifications in the case of terms “implied in law”. This means the judge requires no consideration of either parties’ intentions.
How are contemporary implied obligations similar to historical common law obligations? How are they different?
It seems as through the requires of employers has changed a lot over the years, well the implied obligations of the employees have hardly changed. Employee’s are still required to obey the orders of employer and further the employers interests. Both of these obligations seem to be left over from the master servant relationship. Employers on the other hand are now required to give employees notice before termination, provide a safe workplace, and treat employees well.
Implied obligations of the employee
Implied obligation to obey the lawful order of the employer
Implied obligation to cooperate in advancing the employer’s commercial interests
Implied obligation to not compete and to protect confidential information
Implied obligation to avoid lateness and absenteeism
Implied obligation to be honest
Implied obligation to preform competently and safely
Implied obligation to avoid intoxication
Implied obligation to avoid harassment
Implied obligation to provide reasonable notice of resignation
Implied obligations of the employer
Implied obligation to provide reasonable notice of termination of an employment contract
Implied obligations to provide reasonably safe work environment
Implied obligations to treat employees with “decency, civility, respect, and dignity” and to engage in “fair dealing”
Implied obligations to permit employees to report to work
Implied obligations to compensate employees for work preformed
What is required to modify an employment contract?
There are two items are required to modify en employment contract, employee/employer consent and mutual consideration. If an employer wants the right to modify a contract with an employees consent, the employment contract should include an expressed term that states just that. However, if the is no such expressed term, and the employee does not agree to the change, the employer can terminate the contract with proper notice. If the employee does agree with the change, then mutual consideration needs be given.
