Labour Law

Apart, then, from statutory provisions, a contract of service may be entirely informal. Where disputes arise over merely im plied terms in such a contract, the litigants must produce what evidence they can as to what those terms should be taken to be. It may be that a custom in the trade can be established which may be presumed to have been tacitly adopted in the absence of any express agreement to the contrary. There may be some rules of the works or establishment to which reference may be made. The law on this subject was stated in Carus v. Eastwood (1875, 32 L.T. 855) by Mr. Justice Blackburn who said that "it would be very cogent evidence of a contract" based upon certain works rules which were in question "if a copy of them were proved to be posted in a prominent place" and brought to the workman's knowledge; and also that "a well-known custom in the district might also be sufficient to establish a contract." Still more usual is it in England for the individual contracts of large numbers of workmen to be based on the terms of a national or district agreement drawn up by representatives of employers' and workers' organizations. Such collective agreements, in strict law, are of no effect, in the sense that any individual employer could legally engage a workman on express terms differing from those of the agreement (cf. Hilton v. Eckersley referred to below). But in actual practice such collective agreements establish the terms of all the individual contracts of workers employed in the under takings concerned. Any dispute between an individual worker and his employer is settled by reference to the trade union agree ment impliedly included in the contract.

Termination of Contract.

—There are no rules of English common law restricting the duration of a contract of service or the conditions of giving notice to bring it to an end, such as are to be found in the codes of some countries. The parties are free to make whatever arrangements they will on these points, and if no definite arrangement is made, the implied terms must be sought for as best may be. The fact that wages are paid at certain inter vals, such as weekly or monthly, is in itself strong evidence, though not necessarily conclusive evidence, of a corresponding hiring by the week or the month. "If the reservation of weekly wages be the only circumstance from which the duration of the contract can be collected, the presumption is that it is to continue for a week only" (R. v. St. Andrews, 1828, 8 B. and C. 679). There seems still to exist a legal presumption (curiously out of harmony with present-day facts) that domestic servants are em ployed by the year, although wages are paid monthly and the engagement is subject to a month's notice on either side. An alleged custom permitting either party to a domestic servant's contract to give notice, a fortnight before the end of the first month to terminate the engagement at the end of the month, was judicially noticed (i.e., accepted without direct evidence of it being produced at the trial) by the county court judge in the case of George v. Davies ([19i a 2 K.B. 445) and on appeal the High Court held that he was entitled to do so. Apart from special cir cumstances, such as misconduct, and in the absence of any ex press terms to the contrary in the contract, a contract of service can only be terminated after reasonable notice (in re African Association Ltd. v. Allen [I9ro], i K.B. 396). If the term of notice required cannot be ascertained either from the contract itself or from any custom, rules, etc., it is for the jury to say

what is reasonable in the circumstances (Lowe v. Walter, 1892, 8 T.L.R. 358). There is thus a presumption that reasonable notice of dismissal must be given, and if an employer dismisses his em ployee without notice or without awaiting the normal termination of the contract, it is for him to prove that there were circum stances justifying instant dismissal. These circumstances are either certain voluntary acts or behaviour on the part of the servant, or his incompetence. The servant may be dismissed for any act or behaviour which falls within the general rule of law stated by Lord Esher M.R. in the following words : "Where a person has entered into the position of a servant, if he does any thing incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him" (Pearce v. Foster, i886, 17 Q.B.D. at p. 539). Consequently a servant may be dismissed for wilful disobedience to his master's lawful orders (Turner v. Mason, 1845, 14 M. and W. 112), but not for refusing to do work or take risks not contemplated in his contract (Burton v. Pinkerton, 1867, L.R. 2 Ex. 34o). He may also be dismissed for habitual neglect of his duties. The amount of neglect neces sary to justify dismissal depends upon circumstances. The head of a school was held not justified in dismissing a master for ab senting himself for four days (Fillieul v. Armstrong, 1837, 7 A. and E. 557), and a newspaper correspondent who has undertaken to send news by every mail may not be dismissed for failing to do so on two occasions (Gould v. Webb, 1855, 4 E. and B. 933). But the failure of a singer to sing on the opening nights of an opera may justify the complete rescission of the contract (Pous sard v. Spiers, 1876, 1 Q.B.D. 41o). The betrayal of the em ployer's secrets is a good ground for dismissal (per Best C.J. in Beeston v. Collyer, 1827, 2 C. and P. 607). A servant may even be dismissed for misconduct not necessarily connected directly with his employment, if he "is guilty of such a crime outside his service as to make it unsafe for a master to keep him in his em ploy," or "if the servant's conduct is so grossly immoral that all reasonable men would say he cannot be trusted" (per Lord Esher M.R. in Pearce v. Foster, where a firm of merchants was held justified in dismissing a highly paid and trusted employee when they found he had been for years gambling in differences on the stock exchange). Drunkenness will not necessarily justify dis missal; it depends upon the facts of each case (Clouston v. Corry, [1906], A. C. 122). A servant may be dismissed at once for gross incompetence in performing the work he has undertaken to do (Harmer v. Cornelius, 1858, 5 C.B.N.S. 236). The question of when a servant is entitled to leave without notice has not re ceived much attention in the courts. For obvious reasons, it is not usually worth the employer's while to sue a servant for damages for leaving without notice. There is one clear case in which a servant may leave on the instant, and that is where he has been misled as to the dangers involved in the employment (see Cockburn C.J. in Woodley v. Metropolitan District Railway, 1877, 2 Ex. D. at p. 388). The question is of more importance in connection with seamen. It has been held that it does not amount to desertion (involving forfeiture of wages) if a seaman leaves the ship on account of inhuman treatment (Edwards v. Trevellick, 1854, 4 E. and B. 59), or on account of insufficiency of provisions (The Castilia, 1822, I Hag. 59).