Although contracts for service need not be in writing, unless they are not to be performed within one year, it is advisable in many instances, to have a memorandum in writing, signed by the parties, stating the length of the engagement, the notice required on cither side to terminate it, the amount of wages, when payable, and so forth. It may also be important that the servant of a tradesman— as, for example, an employee of a dairyman—should be restricted from carrying on any business of a similar kind within an agreed distance of his employer’s business premises. In the absence of such a stipulation, the employee may, after leaving such service, enter into business in the same neighbourhood on his own account, and even solicit the customers of his late employer to deal with himself, instead of with his late employer. It is, however, illegal for an employee, while in service, to make a list of the names and addresses of his employer’s customers in order to use such list for the purposes of soliciting their custom, after leaving his employer’s service.
An agreement not to carry on a certain trade within a limited area, or during a specified time, must be reasonable in its terms, otherwise it may be void, as being in restraint of trade, thereby preventing a man from earning his living.
Although an employer cannot be compelled to answer an enquiry as to the character of a servant, made by anyone proposing to employ him, yet if he does give any information, it must be truthful, whatever it may be. No material facts should be suppressed, otherwise the person so furnishing the information will be liable to pay damages to anyone injured by such incorrect statements, and, if they are wilfully false, he may be imprisoned.
However, if information as to a servant’s character, whether good or bad, is honestly given by an employer, who believes it to be true, no action, or proceedings, for libel or slander, or otherwise, can be brought against him by the servant, in respect of such information. It is said in legal language to be ‘privileged.’
A servant will be personally responsible under any contract entered into by him, ostensibly for his master, but without the master’s authority. A servant is also responsible for wrongful acts committed by him, whether with or without his master’s authority, and he may be prosecuted for fraud knowingly committed by him in the course of his employer’s business.
If a yearly servant is dismissed, except for misconduct during the year of service, he is entitled to wages up to the end of such year.
A master is not under any legal obligation to provide medical attendance, or medicine, for his servant, but if, of his own accord, and without the knowledge of the servant, he sends for a doctor to attend the servant, he will be liable to pay the expenses. The servant’s wages, during temporary incapacity continue to be payable.
A domestic or menial servant, by a rule founded on custom, is, in the absence of special agreement to the contrary, a monthly servant, even though a yearly sum has been fixed for wages. One month’s notice must be given on either side to terminate the employment of a domestic servant, unless such servant is dismissed for misconduct or other sufficient reason. Slight incompetence is not sufficient to authorise dismissal without notice.
An employer may, at any time, discharge a domestic servant by payment of one month’s wages, instead of notice, without any allowance for board or lodging. A servant so discharged is entitled to the proper proportionate part of the wages to the date of such discharge.
In the absence of any agreement, fixing the period of service, it is generally considered to be yearly, determinable at the end of any year, calculated from the date of the commencement of service. But if a weekly wage has been agreed upon, and no period of service arranged, the service will be weekly and subject to a week’s notice on either side. A similar rule is applicable when a monthly wage has been fixed, in which case a month’s notice must be given. Tutors, commercial travellers, some clerks, and others, are, in the absence of express agreement to the contrary, generally considered to be entitled to three months’ notice, although assistant masters in most schools are entitled to one term’s notice.
It is not advisable for an employer to search a servant’s boxes, even if there is reasonable ground for believing the servant to be dishonest. A police officer should be called in, and, if necessary, application should be made to the magistrate for a search warrant.
If it is intended that the first month of service should be ‘on trial,’ a stipulation to that effect should be made when the engagement is agreed upon; or there should be a stipulation that the engagement may be terminated at the end of the first, or trial month, by either party giving to the other two weeks’ previous notice.
A servant is not entitled to leave, without notice, on paying the amount of one month’s wages in lieu of notice. A servant leaving without notice forfeits the proportion of wages for the current period from the last preceding day when any wages became due, and is also liable to pay any damages sustained by the employer through such servant leaving.
Although properly dismissed for misconduct, a servant is still entitled to wages in arrear, but not for the current period.
Tutors and governesses cannot be dismissed by giving them a month’s notice, unless an agreement has been made to that effect. If engaged by the year, the engagement can be terminated at the end of any year of the service. If dismissed at any other time, unless for misconduct, they are entitled to salary to the end of such year.
An agreement for service is terminated by the death of the employer, in the absence of any specific agreement to the contrary.
Third Party Risks.
A master is responsible for contracts made by his servant, if acting within the scope of his express or implied orders. An authority to obtain goods on credit may be implied, if the master has previously paid for goods ordered by his servant on credit, and has not notified the seller that he will not in future be responsible. Also a master is responsible for the negligence of his servant, if the latter is acting at the time as such servant, so that a master is liable to pay damages for injury to any person, or the property of any person, caused by the negligent driving of such servant while driving for his master. But if the servant, without his master’s permission, is using his master’s carriage for his own purposes at the time when the injury is done, the master is not liable. Nor is a master liable for the criminal negligence of, or a theft by, his servant, though an innkeeper is, under some circumstances, liable to pay damages for the theft by his servant of the goods of a guest at the inn.
See Justices of the Peace.