scholarly journals The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract

2016 ◽  
pp. 124-144
Author(s):  
Douglas Brodie
Keyword(s):  
Common Law ◽  
General Law ◽  
Contract Of Employment ◽  
The Common

scholarly journals "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2)

2018 ◽  
Vol 21 ◽  
pp. 1-20
Author(s):  
Andre Louw
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Employment Contract ◽  
Fair Dealing ◽  
General Law ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation ◽  
Court Of Appeal

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.    

scholarly journals "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 3)

2018 ◽  
Vol 21 ◽  
pp. 1-53
Author(s):  
Andre Louw
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Employment Contract ◽  
Fair Dealing ◽  
General Law ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation ◽  
Court Of Appeal

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.    

scholarly journals "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 1)

2018 ◽  
Vol 21 ◽  
pp. 1-25
Author(s):  
Andre Louw
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Employment Contract ◽  
Fair Dealing ◽  
General Law ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation ◽  
Court Of Appeal

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.    

2. Employment status

2017 ◽  
Author(s):  
Roseanne Russell
Keyword(s):  
Labour Market ◽  
Employment Status ◽  
Common Law ◽  
Gig Economy ◽  
Contract Of Employment ◽  
Key Issues ◽  
The Common ◽  
Additional Reading

The Q&A series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter presents sample exam questions about employment status. Through a mixture of problem questions and essays, students are guided through some of the key issues on the topic of employment status including definitions of employee and worker, the common law tests for determining whether a contract of employment exists, and discussion on the changing nature of the labour market including the gig economy. Students are also introduced to the current key debates in the area and provided with suggestions for additional reading for those who want to take things further.

scholarly journals Employment Rights in an Era of Individualised Employment

2007 ◽  
Vol 38 (3) ◽  
pp. 417 ◽  
Author(s):  
Gordon Anderson
Keyword(s):  
New Zealand ◽  
Real World ◽  
Common Law ◽  
Employment Relationship ◽  
Employment Contracts ◽  
Inaugural Lecture ◽  
Law Faculty ◽  
Contract Of Employment ◽  
The Common ◽  
Employment Rights

On 7 August 2007, Gordon Anderson delivered his inaugural lecture after becoming a professor in the Law Faculty of Victoria University of Wellington. Gordon took as his theme the protection of employees employed on an individual contract of employment. Following the repeal of the award system by the Employment Contracts Act 1991 the majority of New Zealand employees ceased to be covered by collectively negotiated instruments. Instead the contract of employment became dominant. The lecture argued that the common law contract of employment provides little protection for employees. Instead protection depends on some critical statutory interventions that provide a degree of balance within the employment relationship. While not perfect, these protections may be the best that can be expected in the real world of employment.

7. The Variation, Suspension, and Future of the Personal Employment Contract

2018 ◽  
Author(s):  
David Cabrelli
Keyword(s):  
Common Law ◽  
Market Conditions ◽  
Employment Contract ◽  
The Future ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Flexibility

This chapter first examines the common law rules regulating the variation of the terms of the contract of employment. It focuses on the situation where the employer seeks to unilaterally modify the terms of the employment contract, for instance in light of modern pressures on management to demand greater labour flexibility in order to adapt to changing market conditions. The chapter then moves on to address the ability of the employer to suspend the contract of employment, for instance where the employer suffers a downturn in demand for its products or services, or where an employee may be subject to disciplinary proceedings. Finally, it considers the future trajectory of the common law content of the personal contract of employment.

scholarly journals SHOULD REFUSAL TO WORK FOLLOWING BREACH OF CONTRACT BY THE EMPLOYER REALLY BE A STRIKE? National Union of Mineworkers on behalf of Employees v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2104 (LAC)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Thanduxolo Qotoyi
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Critical Question ◽  
Breach Of Contract ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation

The employment relationship is by its very nature premised on the foundation of inherent inequality between the employer and the employee. The employer by virtue of the resources at its disposal is in a stronger position than the employee. One of the strong criticisms levelled against the common law has always been its indifference to this unequal division of power. The common law tends to deal with a contract of employment on the basis that it is an agreement entered into voluntarily and on equal footing bythe employer and the employee. Unsurprisingly, the common law regards terms that regulate the employment relationship as being freely entered into by the contracting parties. This assumption overlooks the inherent inequality that characterizes the employment relationship. It is on account of this assumption that the common law can be mostly associated with unfairness when it comes to the employment relationship. Nowhere is this assumption clearer than in cases of dismissal. In relation to dismissal all that the common law demands is that the dismissal must be lawful. This requirement is easily met if the employer merely provides the employee with a notice of the dismissal. Under the common law there is no mention of fairness as a requirement for a dismissal. In order to address the deficiencies of the common law, the legislature has enacted labour legislation like the Labour Relations Act (66 of 1995, hereinafter “the LRA”) which seeks to bring in some equilibrium in the employment relationship. It must also be said that the LRA provides partiesinvolved in the employment relationship with a framework within which employment issues must be addressed. This has resulted in a situation where in some instances there is a collision between the common law and the LRA. The critical question that emerges is whether the rights and remedies of the employees in the event of a breach of contract must be exclusively determined within the framework of the LRA. If the answer is in the affirmative then it means that the common law has lost some of its relevance in employment issues. This case note seeks to analyse the tension between the common law and the LRA in the context of employees withholding their labour on account of a breach of contract by the employer. It also seeks to analyse the implications of the approach adopted by the Labour Appeal Court in National Union of Mine Workers on behalf of Employees v Commission for Conciliation Mediation and Arbitration ((2011) 32 ILJ 2104 (LAC)).

24. Within the state

2017 ◽  
Author(s):  
Andrew Byrnes ◽  
Catherine Renshaw
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights ◽  
General Law ◽  
National Human ◽  
Protection Of Human Rights ◽  
The Common ◽  
Human Rights Norms ◽  
National Human Rights Institutions ◽  
Domestic Law

This chapter examines the state’s role in promoting and protecting human rights, and is organized as follows. Section 2 deals with substantive protections: the nature, status, and scope of human rights protections under national law. These include the incorporation or other use of international human rights norms in domestic law, constitutional guarantees of rights, human rights legislation, protection under the general law, including the concept of the rule of law, and the common law. Section 3 considers institutional protections of human rights. It briefly outlines the types of institutions that commonly play a role in the implementation, monitoring, and protection of human rights, including the courts, the executive, and the legislature, as well as mechanisms such as ombudsmen and national human rights institutions.

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