Employment law implied terms essay
Labour Law Lecture, 7th April 2011: Implied Terms: Terms Implied in Employment by the Common Law: Mutual Trust, Cooperation, Confidence and Fair Dealing:
- duty of fair dealing Applies to both employer and employee, and particular characteristics apply to each. This is a relatively new common law term. Received into NZ law in the 1970s, by 1985, cases got up to the CA. Woolworths: Ms Dragovitch. Dismissed for alleged stealing. Argued that employer breached its duty of fair dealing by dealing severely with her. Sent back to arbitration court to find on the facts whether it was a breach of this duty. Arbitration court fuond that employer had acted firmly but not harshly. Marlborough Harbour Board v Goulden: Judicial review case, not dismissal. Goulden had been general mangager of Marlborough Harbour Board, dismissed. No union. Was a public sector employee - if you were sacked from the public sector you could seek judicial review of that decision. Dismissal was struck down, harbour board appealed, CA held that the HC was right. He had been dismissed unfairly - fairness, natural justice etc a ground for judicial review. Dicta in this case that said he was entitled to fair treatment, and this coincided with the implied term in employment contract of fair treatment. Malik v Bank of Credit Commerce International Liquidation (1997) Important for two reasons:
Contract Law Essay - Implied Terms Roshan Melwani
EMPLOYMENT LAW ASSIGNMENT 1
You work as a legal adviser at the practice of Chancer and Dodge. There are currently a
number of files on your desk which require your urgent attention.
Recently, a member of the public, Valerie Reid, sustained personal injuries Whilst
attending Nabbey bank to conduct some business. Whilst on the premises, she tripped
over some cable attached to the computers used by the cashiers. At the time, Jamie
Conway was working on the premises updating the hardware for those computers, hence
the reason for the loose cables. Jamie has worked at various branches of Nabbey for the
past two years. He has paid his own tax and national insurance contributions, and has not
taken any holidays whilst working for the bank.
In your capacity as legal advisor for the bank, write a report covering the following points:
1. An assessment of the employment status of Jamie
2. As to whether the bank bears any liability for the injuries sustained by Valerie
You have been invited to be a guest speaker at nearby Bakefield College. You will be
talking to a group of business students who no prior legal knowledge on various aspects of contracts of employment.
The detail of your brief is as follows:
Prepare brief notes for a presentation covering the following:
i) Summarise the basic principles of law covering the creation of a contract of employment
ii) In relation to obligations affecting employers , identify
a) Those terms which are generally held to be implied
Into a contract of employment
b) The various ways in which both express and implied
Terms can be incorporated into a contract of employment
Up until 4 months ago, Jason King was on the books of the "Mpower" Employment
agency. Jason worked for this agency over a number of years, carrying out many
assignments for different organisations. Unfortunately, the agency became insolvent, and
Jason had to leave, whilst still being owed money for his last assignment.
Three months ago, Jason started another job, working for Bovan Furniture manufacturers.
However, it was only last week that he received a document Titled "Particulars of Your
Employment". Jason noticed that this statement contained no details of place of work,
notice periods, or holidays.
Jason now seeks your advice on a number of points:
i) Was he ever actually an employee at the Mpower agency ? If so, he would be
able to claim redundancy pay.
ii) Has he actually received a contract of employment from Bovan ?
iii) what legal remedy does he have in relation to the missing items on the
document which he has received?
Three types of terms in the contract: express, implied terms by common law (implied as a result of case law built up over a number of years) and terms implied by statute Can be difficult to ascertain the express terms since not all employers write everything down However s.1 Employment Rights Act 1996 requires employers to provide a written statement of terms and conditions Employee has just started new job… list the key terms: