LEGAL ASPECT: THE COMMON LAW DUTIES OF AN EMPLOYEE

THE COMMON LAW DUTIES OF AN EMPLOYEE
INTRODUCTION

The duties of an employee are governed by the terms of his contract. In the absence of any express or implied terms, his duties will be determined under common law. Contravention of these duties may give an employer the right to dismiss the employee.
Implied duties
The following are circumstances in which the courts have held employees to have implied duties towards their employers.

a) Indemnity. Where the employer suffers some loss because of his liability for the wrongful act of his employee, the employee may be liable to indemnify (compensate) his employer.
b) Misconduct .the employee must not misconduct himself. The term misconduct includes insolence, persistent laziness, immorality, dishonesty and drunkenness.
c) Personal service. The employee must not allow others outside the scope of his employer’s control to perform his tasks.
d) Loyalty and good faith. The employee must not accept bribes or make secret profits
e) Interests of the employer. The employer must do nothing to harm his employer’s interest ,even in his spare time.
f) Careful service. An employee must exercise due care and skill in the performance of his duties. where he claims that ability to do the work undertaken, besides having the ability, he must also perform the tasks diligently and efficiently.
g) Account for property and gain . an employee must account for any money or property belonging to his employer and any gains made thereon.
h) Trade secrecy. The employee must maintain secrecy over his employer’s affairs during the time of his employment. If the employer wishes to extend this beyond the period of employment it would be advisable to insert a suitable clause in the contract of employment.
i) Invention.it is the duty of the employee to disclose all inventions made using the facilities of the employer.
j) Obedience. The employee must obey all lawful and justifiable orders given by his employer in the in his contract of employment . in some circumstances an employee will be justified in refusing a task, even though it is in the contract of employment. The duty of obedience is mitigated where the employee does not show a willful flouting of the essential conditions of the contract.
k) Notice. The employee must give proper notice of termination of his services according to the terms of his contract, the custom of the trade or statute(Employment Act 2007)

DUTIES OF AN EMPLOYER

Employer’s duties are implied under common law and expressed in statutes. In addition, an employer’s duties to persons other than employees is concerned, e.g. Visitors and third parties who suffer loss due to the acts of the employees.

COMMON LAW DUTIES

Work. The employer is not obliged to provide work for his employees except in the following circumstances:
 Where employer is essential to provide a reputation for future employment. This was originally considered to be in the case of actors.
 Where remuneration depends on the amount of work, eg sales commission, the employer will be obliged to provide the work to enable commission to be earned.
Pay. The employer’s common law duties with regard to pay state that the employer must pay the agreed remuneration or what is reasonable in the circumstance.
There is an entitlement to pay even though employees cannot because no work is available . time workers are paid for being ready to work for their agreed hours
Piece workers are also paid for being ready , willing and able. It is up to the employer to find them work.
indemnity. an employer must indemnify his employee where the employee has incurred a liability whilst acting on the employe’s behalf, except where:
a) The employee knew that he was doing an unlawful act.
b) The employee knew that the employer had no right to give the order in questions.
Equipment and premises (safety). The employer must take reasonable care to make his premises safe. examples of unsafe premises include structural defects, bad ventilation, unsafe insulation, slippery floors or staircase etc.
a) He fails to supply suitable equipment and the employee is forced to improvise.
b) He provides defective equipment knowingly, or which he should have known on a reasonable examination. The onus is on the employer to inspect equipment.
c) He fails to remedy defects which have been brought to his notice.
d) But ‘reasonableness is all that is required.
disciplinary and grievance procedure
the employment provides that details of disciplinary and any grievance procedure be notified to employees and any failure to observe such a procedure would result in a breach of contract.

REASONABLE SAFETY

The employer must take reasonable care not to subject his employees to unnecessary risk.
The requirement of safety on one hand production on the other must sometimes conflict.
a) Inherent risk. All work carries some risk and an employer would not be liable for events outside his control provided he had not been negligent.
b) Reasonably foreseeable. If the danger could be reduced or eliminated the question is whether or not the employer was negligent in failing to do so.
c) Obviousness of risk. The more obvious the danger the more likely the law is to impose liability on the employer for failing to prevent the accident.
d) Seriousness of risk. This depends partly on the probability of an accident occurring but party also on the gravity of the results if it does occur.
e) Cost. The magnitude of the risk has be weighed against other factors, particularly against the expense involved in safety measures and the necessity of carrying out the work in hand.

A REASONABLE SAFE SYSTEM OF WORK

There is the requirement for an employer to provide a ‘reasonably safe system of work’ under common law duty, and also the occupational safety and health of 2007 system consist of:
 Reasonably safe work- fellows. If an employer knows or ought to know (perhaps because of complaints) that employees are a danger to others he is obliged to remove the danger.
 Training of employees. Employees must be instructed in the choice of proper equipment and the correct method of working.
 Effective arrangement with regard to safety apparatus
− Arrangements must be made for the provision and use of safety apparatus which will reduce the danger to the absolute minimum.
− No employee, even though experienced, must be left to look after his own safety.
− Safety apparatus must be available at the place it is required.
− It is not necessary to stand over experienced workers instructed in safety systems to ensure they are used.
 Proper co – ordination. When safety depends on co – ordination of the work of a number of departments the employer must ensure that such co – ordination exist.
 Suitable working conditions. Suitable working conditions must be provided. General conditions under which work is carried on must, so far as reasonable care can ensure, be such as are consistent with safety.
 Sufficient men for the task. It is the employer’s duty to ensure that there are sufficient employees to perform a task.