MULUNGUSHI UNIVERSITY

INSTITUTE OF DISTANCE EDUCATION

POSTGRADUATE SCHOOL OF BUSINESS STUDIES

NAME: FREDRICK TEMBO

COMPUTER No: 202004530
COURSE: MHR 851(ZAMBIAN LABOUR LAWS)

ASSIGNMENT NO: 01

LECTURER: DR. SUMAILI

DATE: 31ST JULY, 2020

________________________________________________________________________________
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PHONE NO. 0977494444

email address: fredricktembo@yahoo.com

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INTRODUCTION
A contract of employment is an agreement between the employer and employee. Section 3 of the
employment code defines a contract of employment as, “an agreement establishing an
employment relationship between an employer and an employee, whether express or implied,
and if express, whether oral or in writing” 1. An employee means a person who, in return for
wages, or commission, enters into a contract of employment… 2. Therefore, an employee is a
person who offers his services under a contract of employment or any person who performs work
or services for another person for remuneration or reward on such terms and conditions that he or
she is in relation to that person in a position of economic dependence. 3 An employer means a
person who, in return for service enters into a contract of employment and includes an agent,
representative, foreman or manager of the person, who is placed in authority over the person
employed.4

In a contract of employment there may be express and implied terms. The express terms could be
those terms which the employer and employee would have agreed to in writing or orally. On the
other hand implied terms are terms of the contract of employment that are not necessarily set out
in writing or were agreed orally, but will nevertheless form part of the agreement between the
employer and employee. These terms are implied through judges decisions under the common
law and often in the absence of express terms (or sometimes irrespective of the existence of an
express term dealing with the matter 5. No matter how well drafted the contract of employment is,
there will still be implied terms and it is important to know what obligations and duties these
impose.

This essay therefore has identified and using decided cases discussed four terms implied in a
contract of employment at common law. For avoidance of doubt attention will be paid to two
implied terms of an employee namely; acting good faith in the course of employment as well as
the requirement to exercise reasonable skill, care and competence. Further, two implied terms of

1
Section 3, Employment Code No.3 of 2019.
2
Section 3, Employment Code No.3 of 2019.
3
Chiwembu and Others v Dairiboard Malawi Ltd [2008] MLLR 145.
4
Section 3, Employment Code No.3 of 2019.
5
United Bank v Akhtar (1989) IRLR 507, EAT

2
the employer namely duty to pay as well as duty to take reasonable care of the employee’s health
and safety have been discussed.

IMPLIED TERMS IN A CONTRACT OF EMPLOYMENT

1. EMPLOYEES IMPLIED TERMS AT COMMON LAW
i. Duty to act in good faith
It is an implied term of the contract of employment that an employee during the course of
employment will act in good faith. Where an employee does not act in good faith during the
course of employment the employer is at liberty to dismiss such an employee. This principle was
well explained in the case of Sinclair v Neighbour6 where the manager of a betting shop took
fifteen pounds from the till to pay for his own gambling, having left his wallet at home and
replaced the money the next day. The employer discovered what had happened and dismissed
him without notice. The employee brought an action for wrongful dismissal in which the defence
alleged that he had dishonestly appropriated the money to his own use. The trial judge found that
he had not acted dishonestly, that therefore the dismissal was wrongful and that he was entitled
to damages. On appeal by the employer it was held that even if the employee’s conduct was not
dishonest the employer was entitled to dismiss him on account of it. This was because the
employee’s action was in breach of his contact of employment even though he had not been
expressly forbidden to borrow from the till. The point being that he knew that his employer
would not approve.
ii. Duty to exercise reasonable skill, care and competence
It is also an implied term of the contract of employment that an employee worth his sort will
exercise reasonable skill, care and competence during the course of his employment. It is an
implied duty to exercise the level of skill and care expected of another reasonably competent
member of the profession. This duty imposes a contractual obligation on the employee to carry
out works with reasonable skill and care thereby creating performance obligation. This principle
of law was enunciated in the case of Agholour v Cheesebrough Pond’s (Zambia) Limited in
which the Court held that “it is well settled that the employee who holds himself out of being
skilled to do a certain type of work impliedly undertakes that he will exercise reasonable skill

6
Sinclair v Neighbour (1967) 2QB 279 CA

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and competence in that work”7. Therefore, it is clear that an employer can at common law
summarily dismiss an employee if he fails to display such anticipated skill or competence during
the course of duty.

2. EMPLOYERS IMPLIED TERMS AT COMMON LAW

i. Duty provide a safe place of work
Much as an employee owes his duty to the employer, it is necessary to point out that the
employer also owes his employee the contractual duty that if broken, entitles the employee to
consider himself discharged from the employment relation and to sue the employer for any loss
or damage thereby caused to him. It is an implied term of the contract of employment that an
employer should provide a safe place of work for the employee. In the case of Paris v Stepney
Borough Council8, the council employed a one-eyed person among its welders and it in course
of duty the employee got injured. The employee took out an action against the council for being
negligent. Though the council did not provide goggles to all its welders, the court held that the
one-eyed person should have been provided with welding goggles because the possible loss of
the only surviving eye was potentially a disaster to this employee more than others. This
therefore entails providing the employee with reasonably safe equipment, work place and system
of work. The employer owes a duty of care not only to employees generally, but to each
employee as an individual. Thus, in the case of Mr. Paris, the employer should have foreseen the
risk of greater injury and acted accordingly.

ii. Duty to indemnify an employee for expenses incorrectly incurred during the
performance of duties

Similarly, it is an implied term of the contract of employment for an employer during the course
of employment to indemnify an employee for expenses incorrectly incurred during the
performance of duties assigned to them. In an agency context, a principal may be obligated to
indemnify their agent for liabilities incurred while carrying out responsibilities under the
relationship. While the events giving rise to an indemnity may be specified by contract, the
actions that must be taken to compensate the injured party are largely unpredictable, and the

7
Agholor v Cheesebrough Pond’s (Zambia) Limited (1976) Z.R.1 (H.C)
8
Paris V. Stepney Borough Council (1951) AC 367

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maximum compensation is often expressly limited. Indemnity is a promise to save a person
harmless from the consequences of an act. Such a promise can be express or implied from the
circumstances of the case. This view was illustrated in the case of Adamson v Jarvis9 where the
plaintiff, an auctioneer, sold certain goods upon the instructions of a person. It turned out that the
goods did not belong to the person and the true owner held the auctioneer liable for the goods.
The auctioneer, in turn, sued the defendant for indemnity for the loss suffered by him by acting
on his instructions. It was held that since the auctioneer acted on the instructions of the
defendant, he was entitled to assume that if, what he did was wrongful, he would be indemnified
by the defendant.

CONCLUSION

The importance of implied terms in a contract of employment cannot be overemphasized. It is

clear from what has been outlined in the discussion that in the absence of express terms in a
contract of employment, implied terms define the rights and duties of the employer and the
employee as well as their liabilities in the event of any breach arising from the relationship
created by the contract of employment.

BIBLIOGRAPHY
9
Adamson v Jarvis (1827) 4 Bing 66

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STATUTES

Employment Code No.3 of 2019.

CASE LAWS

Adamson v Jarvis (1827) 4 Bing 66

Agholor v Cheesebrough Pond’s (Zambia) Limited (1976) Z.R.1 (H.C)

Chiwembu and Others v Dairiboard Malawi Ltd [2008] MLLR 145.

Paris v Stepney Borough Council (1951) AC 367

Sinclair v Neighbour (1967) 2QB 279 CA

United Bank v Akhtar (1989) IRLR 507, EAT