The Common Law Obligations of the Employer under the Contract of Employment

• Author: Geoffrey England
• Pages: 66-78

THE

COMMON

LAW

OBLIGATIONS

OF THE

EMPLOYER

UNDER

THE

CONTRACT

OF

EMPLOYMENT

The

employer's obligations

to its

employees derive

from

the

express

and

implied terms

of the

contract

of

employment.1

As we saw in the

preceding

chapter

dealing

with

the

common

law

obligations

of the

employee,2

express contractual terms

are

generally

of

secondary impor-

tance

in

delineating

the

employer's duties. Because

the

parties cannot

foresee

at the

date

of

hiring

all the

contingencies

that might occur over

the

course

of

their

future

relationship,

and

therefore

cannot bargain

comprehensively

and

precisely about

them,3

the

field

is

left

in

large

measure

to the

standardized implied terms. Typically,

the

express

duties

of the

employer will

be

found

in its

written

and

verbal

offer

and

the

employee's written

and

verbal acceptance

of

that

offer,

and in any

ancillary

documentation that

the

parties expressly agree will

be

incor-

porated into

the

contract, such

as

personnel manuals, works rule

books,

benefit

handbooks,

and

other personnel memoranda.

In

con-

trast,

in

some countries such

as

Britain, legislation requires

the

employer

to

provide

the

employee with

a

written statement describing

a

comprehensive range

of

contractual matters, including

the

legal

iden-

tity

of the

employer,

job

title, wages, vacation

and

holiday pay, sick

1 See

generally

on

this topic

G.

England,

I.M.

Christie,

& M.

Christie,

Employment

Law

in

Canada,

3d

ed., looseleaf (Markham, Ont.:

Butterworths,

1998)

c. 10.

2

See

chapter

4 of

this book.

3 See the

illuminating analysis

by

P.R.

Milgrom

& J.

Roberts,

Economics,

Organization

and

Management

(Englewood

Cliffs,

N.J.: Prentice-Hall, 1992)

at

329-30.

66

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