Contract of Employment (contract of services)

What is it?  A common law contract  Employer pays $$ - employee carries out work  An award sets minimum pay and conditions Three elements of a common law contract  And intention by the parties to be bound by the contract  An agreement to by both parties as to the terms of employment  Some consideration (money), acts or promises provided by both parties Note: both parties must have capacity to enter into contract

Duties of Employers  Duty to pay reasonable wages  Duty to provide work  Duty to repay employees for expenses (indemnify)  Duty to provide a safe system of work  Duty of Vicarious Liability - the employer is held liable for the acts and omissions of their employees.

Duties of Employees  Duty to obey lawful commands  Duty to exercise reasonable care and skill  Duty of confidence  Duty of fidelity

Remedies of employers against employees in breach of contract DismissalSuspensionDamagesInjunctionProsecution for criminal acts Dismissal: fired. Suspension: denied access to workplace for predetermined period (unpaid). Damages: court order may require employee to pay compensation for damages caused. Injunction: a court order requiring an employee to refrain from doing something. Prosecution: employer notifies the police of criminal activities.

Case Law – Vicarious Liability Cassidy v. The Minister (1951) 1 All ER 547  Cassidy admitted to hospital  Hospital botched operation  An investigation could not determine the individual who acted negligently  Cassidy argued that the hospital was vicariously liable for the actions of its employees  Court agreed; Cassidy awarded damages.

Case Law – Fidelity of Employees Herbert Morris Ltd v. Saxelby (1916) 1 AC 689 [House of Lords]  Employment forbade Saxelby from working the same trade after being dismissed from his former position.  Saxelby pursued a job in the same trade in France.  Herbert Morris pursued legal action arguing Saxelby breached contract.  Saxelby argued restriction went beyond what was needed to protect Morris’s business.  Lord Atkinson found that the clause of the contract acted as a restraint upon trade and was there for unenforceable.