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Contract of Employment (contract of services)

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

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Contract of Employment (contract of services)

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  1. Contract of Employment(contract of services)

  2. 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

  3. 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.

  4. Duties of Employees • Duty to obey lawful commands • Duty to exercise reasonable care and skill • Duty of confidence • Duty of fidelity

  5. Remedies of employers against employees in breach of contract Dismissal Suspension Damages Injunction Prosecution 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.

  6. 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.

  7. 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.

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