BH3301 – Employment Law

Seminar 5 Teaching Notes - Common Law Implied Duties (Employer)

(Carry over from Seminar 4)

Q 1(c)

D v Able Company (MD as alter ego)

1. Whether MD’s assurance not to worry in response to employee’s proposal

to ‘speed along the highway’ renders the Company (and MD) in breach of
their implied duty of MTC
Safety?
Illegality? Conspiracy?

Q2

T v ABC Ltd (MD as alter ego)

1. Whether ABC Ltd is vicariously liable for MD’s actions.

[See the Fox News case, where Fox settled an employee’s suit against
them for sexual harassment]

2. Whether the MD’s frequent compliment of her dress sense & the remark
that she is ‘hot!’ a breach of the employer’s implied duty of MTC

Law: The employer would not, without reasonable and proper cause,
conduct himself in a manner calculated and likely to destroy or seriously
damage the relationship of confidence and trust between employer &
employee: Malik applies in Singapore: Cheah Peng Hock, Wee Kim San
Lawrence

On the facts, do we need to consider the remark in the context of:

 Nature of business
 Frequency
 Intention of maker

Would the other employees who were not complimented feel that the
MD’s treatment was unfair, biased?

Discuss

Q 1.1

Eve v Eric

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 1. Whether Eric’s personal facebook post to a restricted audience of his
friends (including employees, clients and business associates) amounts to a
breach of his implied duty of MTC

Law: The employer should not, without reasonable and proper cause,
conduct himself in a manner calculated and likely to destroy or seriously
damage the relationship of confidence and trust between employer &
employee: Malik

Discuss

Pro breach:
 Should treat Eve with civility and respect
 Makes it difficult if not impossible for Eve to continue working for
Eric (hostile work environment)
 Her relationship with Sam is her private business

Contra breach:
 Reasonable for him to feel ‘spurned’ and to react that way
 Relationship with fellow employee is ‘wrong’
 Private facebook account, restricted audience

2. Whether PHA breached

Section 3(1) – Eric must intend to cause Eve HAD
Causation?

Alternatively, Section 4 (if Eve cannot prove that Eric intended to HAD
her)
Whether Eric had made ‘any threatening, abusive or insulting
communication’ which is heard, seen or perceived by Eve to cause her
HAD
Defences? (1) No reason to believe fb post would be heard, seen or
perceived by Eve; (2) Eric’s conduct was reasonable

3. Whether Eve breached her duties of care & diligence, fidelity and good
faith to carry on relationship with colleague

4. Conclusion

Sam v Eric

1. Whether Eric is legally entitled to unilaterally cut Sam’s salary by 20% on

the grounds that he was underperforming
See Rigby v Ferodo [SEL 59]

Law: Employer cannot unilaterally vary a contract; it must be by mutual

agreement (supported by consideration)

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 On facts, Sam’s continuing act of showing up for work is not considered as
acceptance of the salary reduction.

Sam is entitled to claim the salary reduction as arrears in salary payment.

Employer is obliged at common law to pay his employee’s salary (also see
s 20, EA).

2. Whether Sam is entitled to dress flamboyantly at work

This depends on whether there was a contractual obligation (express term
in contract, custom or implied term in fact), which requires him to observe
a specific dress code.

Discuss

3. Whether Eric’s treatment of Sam (unilateral pay reduction to force him to

quit, etc.) is a breach of the employer’s implied duty of Mutual Trust &
Confidence

Law: The employer would not, without reasonable and proper cause,
conduct himself in a manner calculated and likely to destroy or seriously
damage the relationship of confidence and trust between employer &
employee: Malik

Discuss

4. Conclusion

Elton v Eric

1. Whether Eric is obliged to provide Elton with work

Law: At common law, an employer is not obliged to provide an employee

with work: Collier v Sunday Referee Publishing Co Ltd [famous dictum of
Asquith J ‘Provided I pay my cook’; also describe rationale]

Exceptions?
Reinstatement – Singapore Insurance Companies Employees’ Union case
Employee is entitled to be put status quo
Accounts clerk is unlikely to be a skilled vocation.
On the facts, was Elton given any work to do prior to his dismissal?

2. Whether Elton’s move to the loft with inadequate lighting and ventilation
renders Eric in breach of his implied duty of safety to Elton
Discuss

3. Whether Elton’s ‘slowness’ renders him in breach of his implied duty of

capacity & competence

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 4. If Elton eventually decided to resign, whether Eric would be guilty of
constructive dismissal

How old is Elton? If Elton is below 62, RRA might apply [prohibition of
dismissal on grounds of age: Section 4(2) RRA – see SEL 268]

5. Conclusion

Fanny v Eric

1. Whether Eric’s [compulsive gambling habit] and (involvement in illegal

loan activities and unlawful debt collection) could render him in breach of
his implied duty of MTC under the principle in Malik

Since Eric is an individual, any nefarious activity that he engages in must

surely be identifiable to him as a person: see Malik where the bank (a
corporate entity) could properly be identified with the dishonesty.

Assuming breach of MTC, Fanny could treat this as a repudiatory breach

of contract and terminate her contract forthwith (without notice). If she can
show that her future prospects are diminished as a result, she might be able
to claim damages as well.

Fred v Eric

1. Whether Eric’s hurtful name-calling, insults and ridicule towards Fred

renders Eric in breach of his implied duty of MTC
PHA?

2. Whether Fred’s cross-dressing renders him in breach of contract (express,

implied, customary), breach of duty of fidelity and good faith [see
arguments in connection with Sam]

Discuss

3. If Fred proceeds with the sex operation and becomes a female, does Eric
have any legal right to terminate the contract?
Capacity?
Frustration? Not likely since Fred had the choice to transgender.

These notes are intended to encourage thought and discussion, and should not be
treated as model answers.

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© Assoc Prof Dennis Ong
Feb 2020