Common Law

Common Law, also known as case law or precedent, is law that has developed over time through decisions previously made by judges.  For this reason, it is more complicated than civil (or written) law, and often requires the assistance of a lawyer to interpret.

At Common Law, an employment relationship is considered to be a contract between the employer and the employee.  If there is no written contract *, the terms of employment can be determined in various ways: the letter of offer of employment and the employment manual, for example.  If either party wishes to change the terms of the contract without prior agreement by the other party, reasonable notice must be given.  What constitutes reasonable notice will depend on what is in writing, and on legal precedents.

The most common situations where this comes into play are where an employer unilaterally changes an employee’s conditions of employment (e.g. transfer or demotion) or where employment is terminated without cause **.   If there is no clear, well-understood agreement as to what constitutes reasonable notice, the employee may have recourse to the courts, which will decide based on factors such as the employee’s age, length of service, position, and salary, as well as on recent precedents.  It is a good practice to seek legal advice to help determine how much notice to provide in these situations.



*  Consider having employment contracts drafted by an employment lawyer.  Asking existing employees to sign a new agreement may be considered a change in conditions of employment, and there should be something substantial offered in return.

** While the definition of cause is straightforward (can misconduct be proven, and was the nature and degree of misconduct sufficient to dismiss without cause?), there is a wealth of case law in which courts have found that the employer did not have cause to dismiss.  Consider consulting an employment lawyer prior to dismissing an employee for cause.

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