What's implied in employment contracts

One of the most curious peculiarities of employment law that has always fascinated me is the expression: “expressed or implied”. Expressed is easy, but what is “implied," really?

Industrial relations, of course, is really just human relations played out in an employment context. So much, in any human relationship is implied, rather than expressed.

A shared and sustained eye contact can express something in a relationship that words cannot. Even a fleeting glance that meets another may convey a shared understanding especially when accompanied with a smile, a lifted eyebrow, or a parental or marital frown that does not need further expression.

When it comes to a contract of employment, however, it is usually better and safer, to ensure that, if it is a contract that is intended to last any length of time and be carried out to the satisfaction of the parties involved, particularly if there is a “consideration” attached, it should be expressed, “orally or in writing.”

If it is not, the terms, including the amount and the currency in which the “consideration” is to be paid, may become a source of contention and end up in court.

Among the terms in an employment contract that are “implied” are those that, in common law are referred to as a duty of co-operation.

It means that everyone who decides to enter into an employment relationship is agreeing to do all those things, even if they are not spelled out, that need to be done to achieve the objectives of the job.

Think of it. There are things that anyone taking on a job should not need to be told, for example: not to interfere with someone else’s work, not to deliberately waste materials or destroy equipment, to obey reasonable instructions given by one’s manager or supervisor, and to do “a fair day’s work for a fair day’s pay."

On the employer’s side, the implied terms are a “fair day’s pay for a fair day’s work”, ensuring that the employee understands and has the training to perform the required duties (learn and earn), making sure that there are sufficient and adequate tools and equipment to perform the requested duties.

These may sound like common sense, but the reason they have passed into common law is because they often are not common. If your mother didn’t teach you that you are expected to dress properly in turning up to work, you might, like one young woman did, turn up to work in a bank, bra-less and in a very transparent blouse, much to the amusement of her supervisor who sent her home, but not before asking her to report to four senior managers for confirmation that she was in breach of company policy.

Not wearing a tiny bikini or a transparent outfit to work is not spelled out in most employment contracts, nor legislated for in Parliament.

There is a hierarchy of laws. The Constitution comes first, then laws followed by regulations, followed by laws and regulations legislated in Parliament.

Collective contracts may supersede those in an individual employment contract, and where all of these are silent, hundreds of years of court decisions and accepted rules of behaviour are found in common law and are what are now regarded as being “implied” in any and all contracts of employment unless specifically mentioned as being left out.

Not wounding someone with a sharp instrument doesn’t have to be spelled out as being against company rules. It is implied.

Countries that use common law include the UK, the US, Kenya, the Caribbean countries, Fiji, Ghana, Hong Kong, India, Israel, Ireland, Liberia, Malaysia, Malta, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Sierra Leone, Singapore, South Africa, Sri Lanka, and Zimbabwe.

Where specific laws are passed in Parliament, these will take precedence, but where they are not or there is no court ruling, the common law is usually resorted to.

Another common law duty which is in every employment contract, and which is binding on both employer and employee, is what is called the duty of care.

This is the duty of the employer to take “reasonable care” for the safety of employees in the course of their employment.

All of the OSHA rules arise from this duty as does the duty of the employer to make sure all employees are free from sexual harassment, racial, political or other non-work related harassment such as religious harassment.

It also covers the duty of employees, including management employees, to exercise reasonable care and skill in carrying out their functions.

Reasonableness covers behaviour and attitude as well as technical skills. People make mistakes. That is the basis of learning. But carelessness and negligence often have an element of deliberation or indifference in them, and where there is evidence that this “lack of care” exists the courts have accepted it as reasonable justification for termination.

A third term – fidelity – is also implied in every employment contract.

Fidelity means that every employee – including personnel, professional, executive and management – will serve honestly and in good faith in handling the company’s property, in not serving competition, and in maintaining confidential the information about the company’s processes, employees, customers and procurement sources that they have gained arising out of, and in course of, their employment unless such disclosure is required by a court of law.