COMMON LAW – CONTRACT OF EMPLOYMENT

Here is a broad overview of various topics in labour and employment law. This would come out predominantly from a Canadian context.

If you work for somebody, then by definition you have an employment contract, i.e. the common law contract of employment. Generally, there is an explicit contract written out between employer and employee, other times the contract is just implied to exist at common law. The common law contract of employment is basic which is why employees prefer to negotiate a collective bargaining agreement. That being said, the courts have attempted to build a “floor of rights” into the common law contract of employment. A barrier they have encountered is that there is no room for the common law and statute to develop in tandem, i.e. if a right is covered as per statute then that right cannot exist at common law.

The common law contract of employment is poor because at common law there aren’t many developments that create substantive or procedural rights for employees, there is a huge imbalance of power between employers and employees which undermine the freedom to contract; civil litigation is a costly and time-consuming process.