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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 7: Fidelity, mutual trust and confidence and fair dealing

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

Extract

This chapter explores the interrelationship of the implied terms of fidelity and mutual trust and confidence and related obligations. A characteristic of employment law is the role played by the common law implied terms in all contracts of employment, most significantly the undefined and open-ended implied obligation of fidelity, that restrain an employee’s autonomy by requiring them to subordinate many of their own interests to those of their employer. Until recently, an employer did not owe any reciprocal duty; but the development of the implied term of mutual trust and confidence and, more recently, the potential development of good faith obligations in the general law of contract generally have slowly changed that picture. Elements of commonality exist which may help to identify emerging core values of the employment contract, as norms of good faith and fair dealing become more significant in the law of contract as a whole. Keywords comparative employment law, contract of employment, mutual trust and confidence, good faith

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