Different lands, different laws
This is the caveat for all articles we publish. These are opinions freely given, and they aren’t going to be right in all situations (see here for our terms and conditions) so use at your own risk. For tailored advice, book an appointment to discuss.
This is where we get into the weeds of technical, legal and philosophical questions. Still reading? Ok, if you’re sure….
Firstly a caveat about what we are not talking about. This article (in fact all of these articles) is about the overlay of the law onto the actions of individual actors, when enforcing and ceasing contracts for employment. It is about the constraints placed by the state on how contracts (specifically employment contracts) can be applied. It is about fair operation.
We are not talking about the state requiring fair outcomes. In most countries there are laws that dictate this, typically minimum conditions such as pay, leave entitlements and means of payment. Every land has their own laws enforcing their perception of fair, and their own political debates around this.
The rights of parties to freely arrange and apply their own terms of engagement, and end them.
With the exception of the few remaining command economies of the world, within capitalist economies it is largely at the discretion of the parties to the employment contract to determine the terms by which they work together, apply (and dispute) those terms as they work together, and end them at their own volition. The alternative to us arranging these ourselves is another party (state, church, alien overlords) doing it for us.
Unequal power when agreeing those terms
‘Woah, that’s very anarcho-capitalist of you’ I heard you say. Which is fair, because (except for failed states) there is no modern legal system that leaves it at the discretion of the parties to solely decide their terms of employment between them. Because there is a recognition that in practice it’s not an even playing field, and the employer almost always has the upper hand. Yes, the employee might have good bargaining power for key terms like the pay, but invariably the employer writes the contract.
Unequal power during the contract
In a similar way, the power during the contract is generally unequal. The employee is invariably constrained in their actions, at least by the definitions of their role, and the discretion of application of authority remains with the employer. Or to put it another way, the employer acts, and the employee reacts. Essentially the only act an employee can initiate is resignation.
Constraints by the state
So those are the common principles in play in pretty much all employment, that doesn’t meet some definition of slavery (I’m ignoring wage slavery to keep it simple). Parties arrange and continue employment between themselves, but the state put some limitations on employers; some fetters to what would otherwise would be unfair power if left unfettered, with negative social outcomes.
Every country has different rules
I’m not going to go through them all. It would take too long, even to pick out some of the major themes. To give some examples to give you the flavour, in the USA, at-will employment (where dismissal may occur without just cause) is the underlying principle of employment, however each state may override with their own laws, and most do (see here for more). Inheritors of English Common Law (the UK, Canada, Australia, Singapore etc) tend to have similar principles, but not the same, and the distinctions and interactions between Napoleonic and EU law is beyond my pay grade.
Your mileage may vary
Your circumstances depends on the laws of your land, which are imperfect reflections of the social and political values of your society. Much of what we discuss here is New Zealand-focused, and if you’re from a Commonwealth country, there’s a pretty good chance it will be similar (if not the same) where you are.
But this is universal
Firstly, there are rules (with few exceptions) everywhere about what the employer can and can’t do, and those rules are complicated, and most managers aren’t experts, and the onus is on them to get it right.
Secondly, (until the AI overlords take over) all bosses are human, and while individuals are different, and cultures vary, there are some strong trends. Here we focus on these trends of human behaviour, rather than laws of the land, because humans are almost the same everywhere.
