It also demonstrates Doorey’s point that the three regimes of work law are not isolated from one another. It is unlikely that today a judge will rule based solely on common law without some degree of reference to both statutory law and contemporary social attitudes. Second, most of the legal issues affecting termination revolve around defining terms and determining how to apply those terms. What does “with cause” mean? How do we know when an employee has “quit”? What is “reasonable notice”? It can be a tricky business to decipher the parties’ words and actions, especially if they occur in the context of a heated exchange or spur-of-the-moment decision. To make the job easier, the courts have established a series of tests for each question to determine if a particular bar has been met. Third, it quickly becomes clear that much of the law around termination is highly context-dependent. The specific circumstances matter. There is no simple formula that can be applied, because there are simply too many variables. Case A and Case B might be identical in the way the termination occurred. However, the decision and subsequent award might be substantially different due to specific contexts, such as the age of the employee, what happened in the time leading up to the termination, what the
employee did after, and so on. This context dependence can be frustrating for people just wanting to know “what the law says,” because the law says different things in different situations. Finally, our examination of termination brings to light, once again, the sustained power imbalance at work. Employers have greater power and as a result the courts have placed a larger burden on them to demonstrate they acted in a fair and reasonable manner. Employees have more to lose when a termination occurs, as it affects their livelihood, while an employer can find a replacement with relative ease (most of the time). The power difference and the significance of the termination to each party can be seen in the volume of wrongful dismissal cases compared to the paucity of wrongful quitting cases. Employees just have more at stake and are more vulnerable to unfair actions by the employer than vice versa. Even if we do not know exactly what they are, we all know that the government has established a set of rules regulating working conditions. These rules exist because governments over the years have determined that common law left on its own results in working conditions considered unacceptable by society, and so they acted to ensure certain minimums (or maximums) were in place to protect workers against the power of employers. That is the first lesson of the regulatory regime. The employment laws we have are creatures of social, economic, and political contexts. What might have been acceptable 100 years ago (e.g., child labour) is no longer tolerated by society, and the laws evolved to reflect that changing social attitude. Because employment laws are social creations, they constantly change and evolve to reflect prevailing societal values. But they are also contested terrain. Employment laws also reflect political dynamics. Competing
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