BH3301 – Employment Law

Seminar 4 Teaching Notes - Common Law Implied Duties (Employee)

Q1
Preliminaries: Unnecessary to consider whether D is an employee since the question
states that AC had employed D as a driver.

Part (a)

Able Co (AC) v D

1. Whether D is obliged to obey AC’s order to rush immediately to the

airport and to personally hand over very important documents to a client
What is the nature & scope of his KOS? Driver and/or despatcher?
Primarily a driver but is delivery of documents ‘incidental’ to his job as a
driver? See Samia El-Ibiary [SEL 73] and discuss.

2. Whether D is guilty of disobedience

(If yes, AC has the right to discipline D and this may include the right to
dismiss him)

Law: In every KOS the common law implies a duty for the employee to
obey all reasonable and lawful orders of the employer.

3. This depends on whether the order is lawful and reasonable.

Unlawful: an order would be unlawful if the task was practically
impossible for D to fulfill, requiring him to break traffic laws (speeding,
beating lights, etc.,)

The facts are unclear whether the task was legally and practically
achievable

Unreasonable: if the order is unlawful, it is almost likely to be

unreasonable as well.
 Compromise of safety? Driver and other road users?
 Exposure to criminal prosecution?
Sub-conclusion: D is arguably justified in refusing to obey AC’s orders.

4. Even if the order was unlawful and unreasonable (justifying D’s refusal to
obey), whether his failure, refusal or neglect to inform his employer of the
situation and to take further instructions from his employer amounts to
breach of D’s implied duty of fidelity, capacity & competence, care &
diligence

Has D performed his work with reasonable care & diligence?

What would a reasonable employee in his shoes have done?
Duty of good faith & fidelity?
Has D performed his work with honesty, loyalty and integrity?

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 5. Conclusion
D is likely to have breached his implied duties.

Part (b)

AC v D
1. Whether lawful and reasonable order [see points 2 & 3]

2. Whether D is justified in refusing to obey on grounds of:

 Imminent threat to injury/harm
Law: Donovan v Invicta
Inoperable safety belts v unsafe aircraft?
 Exposure to criminal prosecution (fine not > $2,000: s 15(a))
RTA, s 15 “Using and keeping of vehicle without licence” (D need
not be the registered owner of the car);

Criminal offence to drive a car in Singapore without valid

insurance: Motor Vehicles (Third Party Risks & Compensation)
Act, s 3(1).

Yes, he is a ‘user’ of the vehicle.

Sub-conclusion: Unlawful & unreasonable. D is justified in refusing
to obey AC’s order.
3. Whether D is guilty of rudeness/offensive language

Even if D was justified in refusing to obey, the manner in which he

communicated his refusal is in breach of duty of obedience
Whether the Jupiter General ‘mortal and not divine’ standard should apply
- apply Lord Maugham’s factors, where relevant
Offensive language: Pepper v Webb [SEL 76]
Discuss.

4. Conclusion

Part (c)

[The employer’s implied duties of Safety and MTC will discussed in the Seminar 5.]

Q2

Preliminary points applicable to all employees

“Signed is doomed!” - L’Estrange v Graucob [does not matter whether employee read
or understands the agreement]

Whether company handbook forms part of the KOS

Incorporation by reference? Employees agreed in KOS ‘to comply with the rules &
regulations’
A.S.L.E.F case – Work Rules do not have contractual effect: Lord Denning MR

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Contra, Sea-Land case – Handbook was a contractual document
Ultimately, a question of intention.

If the relevant rule is incorporated, ABC Ltd can enforce the rule as an express term
of the contract
If not incorporated, ABC Ltd still has another ‘arrow’ under common law implied
duty of fidelity

ABC Ltd v P &/or P’s sister

1. Whether P has breached his duty of fidelity and good faith when he passed
to his sister (who intends to set up a competing business) certain
information (clients, quantities & contact persons, statistics on consumer
behavior) belonging to the employer

[SEL 274]

Action for breach of confidence must satisfy:

1. Does information have quality of confidence? Yes
2. Is there obligation of confidence? Yes, by virtue of KOS
3. Breach – yes, when P disclosed the information to his sister
Discuss.
2. Whether ABC Ltd can stop P’s sister (injunction) from using the disclosed
information
P’s sister is under a duty of confidence if she knew that the information
was confidential

3. Conclusion

Q3
If post-termination, P is no longer bound by common law implied duties. The
information ceases to be confidential and may be freely used provided it is not a trade
secret.
Whether the information (clients, quantities & contact persons, statistics on consumer
behavior) is a trade secret.
Arguably, only the ‘statistics on consumer behaviour’ is a trade secret. Discuss.

ABC Ltd v T &/or T’s friend

1. Whether T has breached her duty of fidelity and good faith in disclosing
information about the launch of a new product
[Ditto above].

Confidential secretary – position of high trust and confidence.

Could divulging the info amount to breach of T’s duty of capacity?

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 2. Whether ABC Ltd can stop (injunction) T’s friend from using the
disclosed information
T’s friend is under a duty of confidence if he/she knew that the
information was confidential

Discuss.

If post-termination, T is no longer bound by common law implied duties. The

information ceases to be confidential and may be used provided it is not a trade secret.
Whether information relating to the launch of a new product is a trade secret. Discuss.

ABC Ltd v Q &/or former classmate

1. Whether Q breached his duty of fidelity and good faith in disclosing

pricing strategies to his former classmate.

2. Whether his moonlighting is a breach of his duty of fidelity and good faith
Depends when: during or after office hours.
If during, it is clearly a breach [also breach of duties of care & diligence,
capacity & competence]
If after, it’s probably not (consider position, skills, pay, competition)
But, if Q is fatigued by the moonlighting and under-performs, he could be
in breach of his implied duties of capacity & competence, and care &
diligence

3. Whether ABC Ltd can stop (injunction) Q’s former classmate from using
the disclosed information
Q’s former classmate is under a duty of confidence if he/she knew that the
information was confidential

Q 3 If post-termination, Q is no longer bound by common law implied duties. The

information ceases to be confidential and may be used provided it is not a trade secret.
Whether the pricing strategies is a trade secret. Discuss.

ABC Ltd v Z

Preliminary point: Was the email sent using ABC Ltd’s intranet (computer, system,
electricity, etc.,) or via his personal email account (e.g., Google) on his personal
computer, outside of his workplace? The former is more serious.

1. Whether Z breached his duty of fidelity and good faith in sending a

truthful [but perhaps imprudent] email to colleagues in his department
about the character and integrity of his MD.
Is the MD regarded as his ‘employer’?
Does it lower his reputation in the eyes of other employees? Does it dilute
his authority & standing? [Control]
Is his senior position in Co relevant?
See Wee Lye Seng [SEL 75]; Teo Chew Seng v SATA [SEL 83]

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 Conclusion.

2. Whether MD can succeed in PHA action against Z

S 3(1) – must prove Z intended to cause MD HAD (harassment, alarm or
distress) by his action of sending emails to his colleagues in his department

If intention cannot be proven, that the MD perceived HAD: s 4, PHA.

Quaere: Is it relevant whether Z’s email is via intranet (using his ER’s
computer, system, electricity, etc.,) or via his private email account outside
of workplace and office hours?

3. Conclusion

Q 3 If post-termination, Z is no longer bound by common law implied duties.

[Tort of defamation? Unlikely to succeed because allegations are true].
[PHA – s 3(1) if Z intended to cause MD HAD (harassment, alarm or distress), or s 4
(absence of intention) if Z perceived HAD].

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

© Assoc Prof Dennis Ong

February 2020