Creation and Modification of the Employment Relationship

• Author: Geoffrey England
• Pages: 22-36

CHAPTER

3

CREATION

AND

MODIFICATION

OF

THE

EMPLOYMENT

RELATIONSHIP

This chapter examines

the law

governing

the

formation

and

modifica-

tion

of the

employment

contract.1

Firstly,

we

analyze

who has the

"legal

capacity"

to

enter into

an

employment contract.

We

shall

see

that

there

are

restrictions

at

common

law and

under legislation

on the

employment

of

mental incompetents

and

children.

As

well, special leg-

islation sets minimum qualifications

for

employment

in

defined

trades,

professions,

and

occupations (e.g., nursing

and

electrical mainte-

nance); immigration laws restrict employment

by

non-Canadians;

and

apprenticeship legislation restricts

the

conditions under which persons

can

be

engaged

as

apprentices

in

designated trades

and

professions.

Secondly,

we

examine legislated restrictions

on how

employers

conduct

the

recruitment process. Here,

we

analyze

the

operation

of the

general principles

of

contract formation

and

modification

in the

con-

text

of the

employment relationship, namely

offer

and

acceptance, including

the

Statute

of

Frauds;

the

requirement

of

certainty

and the

sources

of

contractual terms;

enforcing

representations

by

means

of the

torts

of

negligent

and

fraudulent

misstatement;

1 For

further

detailed

elaboration

on

this

topic

see G.

England,

I.M.

Christie,

&

M.

Christie, Employment

Law in

Canada,

3d

ed., looseleaf (Markham, Ont.:

Butterworths,

1998)

c. 7.

22