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, well be looking at some well-
established terms implied by the courts
through cases decided in the past.

Well be looking at implied terms relating to
the employer first and then those relating to
the employee.
One implied term: Employers 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: Employers 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: Employers 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: Employers 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: Employers 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: Employers
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
employers 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
employers 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
employees 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).