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Employer of a court ruling that a clause or a contract is a sham - Essay Example

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Employers have developed a tendency to sneak unfair clauses in employment contracts in order to escape various obligations that arise in typical employment scenarios. Specifically, the self-preservation clauses in such contracts may be introduced to blur the mutuality of…
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Employer of a court ruling that a clause or a contract is a sham
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Download file to see previous pages In most cases, sham employment contracts are the result of denial of mutuality by a provision indicating that the organization or employer does not offer any specific tasks and the alleged employee does not assume to do it (Cabrelli, 2014). Similarly, denial of personal service by introducing a contractual clause indicating that the individual employee can substitute his or her absence by sending someone else to undertake the work is another unfair act by the employer. Contractor agreements normally contain such clauses and their existence suggests that the person does not meet the description of “worker” in common law as there is no requirement to execute out the tasks “personally”.
Regardless, if neither the person nor the organization ever contemplated the future obligation to bring a substitute in the ‘worker’s’ absence regardless of the lack of common intent to lie to any third party, courts would determine the working arrangement as “sham” (Painter, & Holmes, 2012). In most cases, the ensuing situation technically changes the position of the person from expressly-stated “contractor” to a practical “worker” by virtue of his or her subsequent behaviour.
As Cabrelli (2014) noted, when the seemingly harsh and unreasonable outcomes on the “worker” have been delineated, courts have demonstrated their willingness to enforce the contract as it would be employment contract. Regardless, various court interventions have raised serious problems since the known connotation of a sham remains somehow vague in commercial law. This is especially true in situations where both parties to an employment pact are guilty of misrepresentation to deceive third parties, where it is held that such action does not constitute a sham.
The clearest proof of confusion in the common sense understanding of a sham provision is that it has never been consensually enforced (Davies, 2009). The ...Download file to see next pagesRead More
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