Seminar 5

Implied Terms relating to Employer and Employee

Implied Terms

• The contract of employment contains implied terms imposed either by , or .

• In this seminar, we’ll be looking at some well-established terms implied by the courts through cases decided in the past.

• We’ll be looking at implied terms relating to the employer first and then those relating to the employee.

One implied term: Employer’s duty not to be Negligent

• If a person is negligent and as a result someone else suffers a loss, there may be liability in negligence.

One implied term: Employer’s duty not to be Negligent

• This principle also extends to employers.•What are some ways in

which the employer can be negligent?

One implied term: Employer’s duty not to be Negligent

• But before liability can arise, there must be a negligence or breach of duty, that is, the employer must have failed to do what another reasonable employer would have done.

• Eg: if you are driving and knock someone down, is it forgone conclusion that you breached your duty of care and hence are liable?

• Note: while employers may also owe a duty of care towards non-employees, the standard is higher in relation to employees.

One implied term: Employer’s duty not to be negligent

• In determining how another reasonable man would have acted, it may be necessary to balance risk and cost of taking preventive measures.

One implied term: Employer’s duty not to be Negligent

• Defences open to the Employer:

- Contributory Negligence - Voluntary Assumption of Risk

or Consent?- Delegation of Duty?

Contributory Negligence Case Example: Sayers v Harlow

• Plaintiff found herself locked inside a toilet.

• So – in an attempt to climb out – she stepped on the toilet roll – which “true to its mechanical requirements rotated”.

• She fell and injured herself?• Was she contributorily

negligent?

Employer: Some Other Implied Terms

• Duty to indemnify employee for expenses incurred in the course of employment which are incurred at the request of the employer.

Employer: Some Other Implied Terms

• Generally is there a duty to provide work?

• Duty to treat employee with trust and confidence: eg:

- Physical/Verbal abuse.- Sexual harassment.- Does this extend to giving the employee

privacy?

Another implied incidence of employment: Employer’s Vicarious Liability

• Employer could be vicariously liable for the actions of his employee, provided:

• (a) the employee commits some “civil wrong” and • (b) the civil wrong takes place during the “course of

employment”.• What is the rationale for vicarious liability?• What is during the “course of employment” depends on the

facts, but even if done negligently, fraudulently or against orders, employer may still be liable. The test is whether there is a close connection and it is just and reasonable to make the employer liable.

• If the employer is made vicariously liable, can he in turn take action against the employee?

Case Example: Koh Get Kee v Low Beng Hui• An off-duty police officer

who was in uniform and armed, went on a drinking spree with his friend.

• He then accidentally shot the friend.

• Were his employers civilly vicariously liable?

• What if the police officer had shot his wife at home after a quarrel?

• What if there was also something wrong with the revolver due to the employer’s fault?

Source: Microsoft Clipart

Case Example: Mattiss v Pollock

• A bouncer employed by the club to maintain order, used force to get a customer named Mattis to leave the premises on the request of his employers.

• A few days later Mattis returned and there was a fight at the door betewen both of them.

• Later Mattis chased the bouncer. • The bouncer escaped to his home. • Later the bouncer came back to the club with a knife and searched out Mattis and stabbed

him.• Was the club civilly vicariously liable?

Employee: Some Implied Terms

• Does the employee have a duty to Obey Instructions?

- Exceptions

Employee: Some Other Implied Terms

• Capacity and Competence

• Duty of Care/Negligence- What are some ways in which

the employee can be negligent?

Employee: Some Other Implied Terms

•Duty not to misappropriate employer’s property.

- What does “property” extend to?

Employee: Some Other Implied Terms

• Is there a duty not to do outside work during job?

• Duty not to disclose Trade Secrets and Confidential Information:

- During Employment - After Employment- If there is such an implied term – why is

necessary to have an express restraint of trade clause?

Employee: Some Other Implied Terms

• Duty to disclose information: - about oneself?• For example – must you tell

them in an interview if you are pregnant?

Employee: Some Other Implied Terms

•Who has the right to Intellectual Property created in the course of work?

(a) Employee volunteered to take photos for employer.(b) Not within his job scope to do so.(c) Not paid for doing so.(d) Used his own camera.(e) Photos taken during office hours.(e) Photos were later used by the company.(f) Employee was subsequently retrenched.(g) Who does the copyright in the photos belong to?

What if there is a breach of an implied term?

• If an implied term (or express term for that matter) has been breached, what the innocent party can do would depend on the circumstances.

• However, some possibilities include: Right to sue for losses (eg: employer sues for losses caused by

employee’s negligence or vice versa), Right to terminate the contract on the spot where there is a

very serious breach (also known as repudiatory/fundamental breach - eg: employer can dismiss the employee on the spot for severe incompetence/negligence; employee can resign on the spot if there is sexual harrassment).

Summary• Cases decided in the past have implied various terms into

the contract of employment.• For instance it has been implied that the employer has a

duty not to be negligent, a duty to pay for work related expenses and a duty to treat the employee with trust and confidence.

• Similarly it has been implied that the employee has a duty not to be negligent, a duty to obey lawful instructions and a duty of goodfaith.

• Assuming there is an implied term (or an express term) and it is breached, the innocent party may be able to take various actions (such as suing for losses and/or terminating the contract on the spot) depending on the circumstances.

Readings

• Basic Text: Chapter 4 (4.248-4.250, 4.253-4.256, 4.262-4.266, 4.269-4.274, 4.277-4.279, 4.287-4.292, 4.299, 4.302-4.305, 4.310-4.313, 4.315-4.319, 4.322-4.327).

• Basic Text: Chapter 5 (5.1-5.19, 5.29-5.31, 5.34-5.40, 5.49-5.52, 5.58-5.59).