The Role of Standards of Review in Labour Law

The Role of Standards of Review in Labour Law

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A distinction can be drawn between employment rights expressed as (i) rules and (ii) standards of review. The observation that not all labour laws are directed towards the correction of general labour market failures is taken as a point of entry to engage in further research into the standards of review that exist in labour law. This paper probes their special role in addressing the internal vulnerabilities to which employees are (i) exposed in their specific employment relationship and (ii) subjected as a result of managerial practices or particular factual contexts. The principal argument is made that unlike fixed rules, employment rights crafted as standards of review of managerial behaviour can be conceived of as useful devices that police employment-relationship specific failures, rather than the labour market generally. By self-modulating the intensity of review of managerial conduct or decision-making according to the requirements of a particular case, standards of review are more sensitive to the particularities and dynamics of diverse employment relationships. The implications of this analysis for labour law are examined in further detail in this article.

David Cabrelli
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