In the absence of any express or implied terms in the contract as to the effect of the servant's illness and his right to wages during illness, an employer cannot instantly dismiss a worker for absence through illness or injury, nor is the contract brought to an end automatically when the worker for such reason ceases to carry out his part. But in the case of a contract of some length, perma nent incapacity or illness for an unreasonably long time will entitle the employer to rescind the contract. If the employer does not do so, the servant is entitled to his wages during the time he cannot serve. In Cuckson v. Stones (1858, 1 E. and E. 248), where there had been no question of rescinding the contract, and it was admitted that wages would be payable for any short illness, the employee engaged on a ten years' contract was held entitled to his wages during an illness lasting many months. Even very short contracts or contracts at will are not automatically brought to an end by the servant's absence through illness. Thus in Warburton v. Co-operative Wholesale Society Ltd. ([ 1917], 1 K.B. 663), an employee, who was incapacitated by an accident and receiving compensation for it, was held to be still in the service of the society though he could have been dismissed at a moment's notice. In Niblett v. Midland Railway (1907, 23 T.L.R. 24o), a railwayman failed in an endeavour to recover wages for some weeks of absence through illness when he was still admittedly in the company's service and receiving sick pay from their own sick fund; it was held that the decision in Cuckson v. Stones did not govern such cases. A contract of service is dissolved by the death of either party (Farrow v. Wilson, 1869, L.R. 4 C.P. 744). The death of one partner likewise, as a general rule, brings a contract of service with the firm to an end ; but if the contract was made without regard to the personnel of the partners or the nature of the partnership business, this may not be so (Phillips v. Alhambra Palace Co. [1901], I K.B. 59). The bankruptcy of the master does not bring to an end any contract of service to which he is a party. The question may arise, where a worker is to be paid ac cording to the amount of work he does, whether the employer is bound to give him a sufficient amount of work to enable him to earn suitable wages. It was held in Devonald v. Rosser ( [1906], 2 K.B. 728) that if the worker in such a case is bound for a specified time to work exclusively for the employer, then there is an implied obligation on the employer to find him work by which he may earn his wages.
be compelled to carry out a contract to serve a master, and no master will be compelled to take into or retain in his service a servant he has engaged, though either party may, in suitable cir cumstances, be restrained by injunction from doing something he has contracted, expressly or by implication, not to do. The usual remedy for breach of a contract of service is therefore a claim for a sum of money as damages. In assessing the amount to be awarded, the courts aim at placing the injured party as nearly as possible in the position he would have been in if no breach had been committed. If a servant is engaged on terms making him liable to be dismissed on a week's or a month's notice (or what ever period of notice may be agreed upon), the measure of his loss if he is discharged on the instant is clearly the wages he would have received had he been allowed to work out the agreed term of notice. It is consequently understood that wages may be paid in lieu of notice in such cases, instead of the notice itself being given, and that amount will be awarded by the courts if the employer refuses to pay it. In the case of a contract to employ a person for a definite time the measure of damage is not so easy to ascertain, since it is necessary to take into consideration the possi bility that the servant may procure other employment before the end of the term during which his employer ought to have re tained him (Hartland v. The General Exchange Bank, 1866, L.T.N.S. 863). The servant is bound to endeavour to get work. The amount recoverable in damages will therefore be the wages he ought to have received under the broken contract less what he will receive in a new situation which he has either already ob tained (Reid v. Explosives Co. [1887], 19 Q.B.D. 264), or which he has been offered (Brace v. Calder, 1895, 2 Q.B. 253), or which he may be expected to get after allowing a reasonable time for finding the new employment (Addis v. Gramophone Co. [1909], A.C. 488, per Lord Atkinson at p. 493). Thus if the servant could at once have procured a similar position, only nominal damages will be awarded (Brace v. Calder). It must be noted that a wrongfully dismissed servant cannot be awarded any vin dictive or exemplary damages in respect of his wounded feelings for the harsh manner of his dismissal, in an action for breach of the contract of service (Addis v. Gramophone Co.), though, of course, if the circumstances warranted it, he could bring an action for defamation of character against his employer. A servant can recover a sum in respect of any tips or commission which he might expect to have earned in addition to the wages if he had been allowed to complete the proper term of the contract or of notice, provided that it is an implied term of the contract that he should receive payments of that kind (Manubens v. Leon [1919], I K.B. 208). If the master after engaging a servant rescinds the contract before the service has actually begun, the servant may institute proceedings at once, without awaiting the day when the service was due to begin (Hochster v. de la Tour, 1853, 2 E. and B. 678).