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27 April 2011
By Waheedan Jariwalla
In determining whether a person is an
employee or an agent, evaluating his duties is often the key in this
regard. The key duties to appreciate are as follows:
Duty to give personal service:
The relationship of employee and employer is a personal one and the
employee may not delegate performance of his duties. This can be
crucial in determining whether someone is an employee or otherwise.
Duty to obey reasonable orders:
The employee is under a contractual duty not to wilfully disobey a
lawful order. Nor must the employee act in a matter designed to
frustrate the commercial aspect of the contract.
Duty of reasonable care and
indemnity: The employee is under a duty to exercise
reasonable care and skill in the performance of his duties. An employee
will be in breach of this if he performs his duties negligently or
incompetently. If an employee is in breach of this he is also liable to
indemnify the employer for any loss suffered by the employer by reason
of the employee's breach.
Duty of fidelity or good faith:
This duty is sometimes referred to as the employee's part of the mutual
duty of trust and confidence. T his duty consists of a number of
aspects of confidentiality and non-competition, some of which also
apply after the employment has ceased.
Secret profits: An
employee must not make a secret profit; if he does so he can be
compelled to account to his employer for the profit made.
Competition: Unless the
employee's contract expressly prohibits it, taking a job outside
working hours is not necessarily a breach of the employee's duty of
fidelity, even if that second employer is a competitor. For a breach to
occur, the employee must normally occupy a position where he has access
to confidential information or trade secret such that the employer is
at risk of such information being passed to a competitor. After
employment, the ex-employee may compete with his former employer
without restriction. If a restrictive covenant exists, this is subject
to the doctrine of restraint of trade.
Conflict of interest and duty:
During employment, the employee must not allow his duty of fidelity to
his employer to conflict with his personal interest. In particular, an
employee who is intending to leave his employment and set up in
completion may which to obtain information from his employer or entice
away his employer's customers and staff.
Trade secrets and confidential
information: During employment, an employee is in breach of
his duty of fidelity if he uses or reveals trade secrets or other
information which by its nature is confidential or which has been
impressed upon the employee as being confidential. After employment has
ceased, the employee is only prohibited from revealing or using his
former employer's trade secrets or highly confidential information
equivalent to a trade secret.
By Waheedan Jariwalla - Lawdit
About the Author
Lawdit Solicitors offer services and
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agreements. We are experts in commercial law with a heavy emphasis on
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Article Published/Sorted/Amended on Scopulus 2011-04-29 21:45:20 in Legal Articles