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The Common Law Employment Relationship

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The contract of employment provides in many jurisdictions the legal foundation for the employment of workers. This book examines how the development of the common law under the influence of contemporary social and economic pressures has caused this contract to evolve.
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Chapter 6: Fairness of the bargain and allocation of risk

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

Extract

This chapter considers the risk to the employee that the employer will abuse their superior bargaining power to dictate terms, or manage the employment relationship, in a way that imposes an undue or oppressive burden on the employee. Employees accepting indefinite engagement in an enterprise often commit to the development of their own ‘human capital’ – their knowledge, skills and relationships – in the best interests of the employer’s enterprise. The chapter explores the techniques by which the common law of employment has mitigated the risk of unfair bargains, and of capricious and arbitrary exercise of the employer’s powers of management focussing principally on the development of principles of contract interpretation and construction that favour restraint on the capricious exercise of discretion. Keywords comparative employment law, contract of employment, allocation of risk, unfair contractual terms

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