Developments in Employment Law: The 1991-92 Term

Abstract

The author notes that workers, in theory at least, possess two distinct means of exercising control over terms and conditions of work: "exit," the ability to leave a job; and "voice," the ability to speak up about unsatisfactory working conditions. Exit and voice serve more than the value of efficiency. Freedom of exit in the economic sphere conforms to freedom of contract in the legal and political sphere. Under a regime committed to freedom of contract, employees are not required by law to work for particular employers absent employee consent. While freedom of contract may produce efficiency gains in employment, it also serves to protect worker freedom of choice, seen by many as worthy of value independent of any efficiency gains it may produce. Countless rules regulate entry and exit in the labour market, ranging from laws determining one's income after exit to laws preventing or restricting the ability of an employer to fire an undesirable worker. Some of these laws can be represented as attempts to either foster or frustrate worker voice; others serve interests unconnected with either exit or voice in employment. Exit or voice ultimately may be the only options available to employees when faced with undesirable working conditions, but employment law structures entry and exit in complicated ways and for diverse reasons. The author argues that all of the employment law cases this term implicate mechanisms of exit and voice in the labour market. These cases include: Machtinger v. HOJ Industries Ltd.; United Nurses Ass'n v. Alberta (A.G.); Tetreault-Gadoury v. Canada (Employment & Immigration Commission); Schachter v. R; and Osborne v. Canada (Treasury Board).