Course of Employment; Who would be liable?
The idea of course of employment looks pretty simple if literally interpreted, it means some responsibilities and duties of a person when performed by another person with or without expressed contract during a period of time, and they are legally bound to each other to receive the result of the performance, but this is just an out hole of rat track which is closely connected and dependent with various paths of law deep inside.
In an arranged way we can say “An act is deemed to be done in the course of employment if it is an authorized act or it’s natural consequence or is an unauthorized mode of doing some act authorized by the master[i] or is necessarily incidental to something which the servants is employed to do.[ii] ”
If we dig up a bit more, we will find it’s not just some contract of conditions for employment but also a protection system for both employer and employee under various laws.
The Benefit of course of employment
Under the Course of Employment an employee will have a protection of law making his employer vicariously liable for his act in the following circumstances.[iii]
- When it is an authorized act and their natural consequences.
- Unauthorized mood of authorized act
- Negligent exercise of authorized acts
- Mistake of servant
- Fraudulent acts done by servant for his own benefit
- Willful disobedience of instructions
- In case of accident of employee if course of employment is proved he gets remedies under law.[iv]
- Employee will get maternity, health and hygiene, leave, overtime, safety, injury by accident etc. benefits. [v]
On the other hand course of employment saves the employer too in certain circumstances
- Employer can bound employee to perform his job (Through specific performance of contract)[vi]
- Employees are bound to conduct business according to the direction of employer[vii]
- Duty to compensate[viii]
- Account for Profit[ix]
- Get the skill and diligence required form agent[x]
- Employee is bound to render proper account[xi]
- Employee duty to communicate with principal[xii]
- Protection for miss use of information[xiii]
- Protection of copyright: when under the course of employment all the intellectual property created during the course of employment will be owned by the employer.
Formation of Course of employment
Now the course of employment may be created by expressed contact or may arise by any other law or sometimes judicial discretion of the court may presume such contact between the parties.
As it is itself is not a law but depends on other sources of law, so now we are going to find the relation of course of employment with other laws and how they can be formed or come to existence. As there are so many ways to constitute the course of employment we are going to emphasize on some important materials only.
Bangladesh Labor Act – 2006
The Act is come into force to “.. Consolidate and amend the laws relating to employment of labor, relations between workers and employers…” according to the preamble of the Act. The act defines the various kinds of employer in section 2 and in The Second Chapter of the Act exclusively deals with the conditions of service of employment which ensures the rights and duties of the employer. Most of the Legal entities are appointing employers under this Act so this plays a vital role in the case of course of employment.
Contract Act – 1872
Contract Act is a very special and root law, there are many circumstances when other laws do not fit properly but Contract Act do. Two legal persons can contract on any matter which is not barred by law[xiv] so the act can easily form a customized course of employment and by that both the employer and the employee are agreed to certain right and duties. Both of them can make the other person bound to perform his part or compensate.
Agency is a legal device by which the relationship of principal and agent is created, here the principal the person who employ another person to do his job (the agent) this device might be created by expressly or impliedly.[xv] So this is another nice instrument of course of employment.
The Partnership Act – 1932
Partnership is the relation between persons who have agreed to share the profit of a business carried on by all or any of the acting for all. The relation entity is called firm generally and they need not to be written or registered. Now the relation between the owners of firm is not exactly like employee and employer but as they simultaneously works for the betterment of business and they have certain duties on each-other as like they are agent of each other (section 18 of the mentioned Act). Therefore The Partnership Act – 1932 constitute course of employment by its virtue.
Husband and Wife
There are a silent principle and agent relationship between husband and wife. The concept is very simple the husband is generally bound to maintain the wife so the wife has the implied authority to buy articles for households. On the other hand in many society wife’s properties are taken cared by husband, so in that matter husband acts like an agent there. [xvi] And when the agency is established the course of employment is established as well.
Guardian and Ward
Guardianship is a special kind of agency, a guardian is not personally liable for the torts committed by his ward because guardians are not masters so they are generally not liable but there are two exceptions to this rule.
- When the child is employed as fathers servant or agent[xvii]
- When the father himself, by his own negligence, affords his child and opportunity to commit a tort.[xviii]
According to section 9 of Contract Act – 1872, as a contract can be made otherwise than in words it will be treated as implied contract in that way a course of employment can be created. It could arise out of certain necessity and can be treated an implied course of employment.
“When a fire broke out defendant he called the Upton Fire Brigade by that way he employed the Fire Brigade to do his job”[xix]
Company and Directors
As Company is a legal entity their employees are generally under written agreement of course of employment if not then the ordinary principal of agency applies to the company and making them liable for the negligent and wrongful acts of their servants committed in the course of their employment.[xx] All the liabilities will be shifted to the Directors as company is directed by them.
If any person does anything on behalf of another person without being employed and later that another person ratified as his agent for his past job (Section 196 of Contract Act 1872) it would be treated that he did his job under a course of employment.[xxi]
Whether a person is an employee of a person or not can be decided by the court when such question is present before him
Acts outside the course of employment
An act may be under the course of employment even though that is not strictly in the performance of the duties of a workman according to the contract, for example, a workman driving a little away from the place of his work for his mid-day meal. But if certain workman, Who is permitted to use his masters vehicle for having refreshment, decided to go for tea to café at a distance of seven miles and on the way back to due negligence act of the workman cannot be considered to be within the course of employment and the master cannot make liable for the same. Thus if a workman goes on a frolic of his own rather than doing something which is connected with the performance of his duties the master cannot be made liable for the same.
When the wrongful act by the servant has not been done in the ordinary course of his master business, the act is obviously outside the course of employment. Such act will not come within the course of employment merely because the servant would not have had the opportunity to commit the wrong but for being in the master service.
Negligence of servant
If a servant is not careful in the performance of his duties and his conduct cause any loss to a third party the master would be liable for the same. Sometimes a servant may do some act while performing the duties assigned to him by the master, for his own convinceor comfort. The question such arises is, how far the act is to be considered to servant a carpenter was required to do his work in the plaintiffshed. While engaged in his work the carpenter lighted his pipe negligently and the same set fire to plaintiff shed.
The master exceptions to the rule that the master is liable for servants acts done during of the course employment
Here we have two types of exceptions. One where the master will be liable even if that the act was within the course of employment and the other where the master will not be liable even if the act was done during the course employment.
- Where master is liable for acts done in the course employment: Where servant is injured due to defect servant Is injured due to defect in some unfenced machinery accident could not have happened had the machinery been properly functioned, the master will be liable.
- Where master is not liable for acts done in the course employment: Normally the master will not liable under the Tort which are not committed in the course employment, but shall be liable if committed in the course employment. However, in the following exception cases master is not liable even where the tort is committed in the course employment:
- A) Where the master has employ a particular person under compulsion and (Master) has no choice of selection; the master will not be liable for negligent acts of such servants even if done during the course employment.
- b) Sovereign Immunity: The government is not liable as an employer’s for the torts committed by its servants in exercise of sovereign functions.
- c) Doctrine of common employment: Though the generally principal that a master is vicariously liable for the torts committed by a servant within the scope of their employment, was established in the time.
For the first time in Priestley v. Fowler Lord Abinger in the Exchequer propound the famous doctrine course employment. According to this doctrine a master was not liable for trot committed by a servant against his following servant .The following reasons for this view given in the above case:-
- That the master cannot be bound to take more care of the servant than he may reasonably be excepted to do of himself because the servant has better opportunities of watching the conduct of the fellow servant then master
- That a view will encourage the servant to be negligence
The wide range of applicability of tort law specifically in the case of employment can help both the employer and employee to safeguard their position on the occasion of an uncertain wrong. on the other hand a third party can sue the proper party for his damage understanding the proper party.
[i] Sitaram Motilal Kalal V. Santanuprashad Jaishankar Bhatt. A.I.R 166 S.C 1697, 1704
[ii] WindField, Law of Tort (8th ed.) 638
[iii] Pande G.S , Law of Torts (Faridabad:Allahabad Law Agency) ed 1997, p 83-86
iv Google Books,. 2015. ‘Employment Law For Human Resource Practice’. Accessed August 14 2015. https://books.google.com.bd/books?id=1cIJAAAAQBAJ&pg=PA528&dq=course+of+employment&hl=en&sa=X&ved=0CCIQ6AEwAWoVChMIiLyF8Z2pxwIVi1KOCh1SCQd7#v=onepage&q=course%20of%20employment&f=false
[v] Bangladesh Labour Act, 2006
[vi] Section 4 of Specific Relief Act,1963
[vii] Section 211 of Contract Act – 1872
[viii] Haque, Muhammad. Law of Contract. 1st ed p 268 Dhaka:Law Lyceum April 2007, p 286
[ix] Haque, Muhammad. Law of Contract. 1st ed p 268 Dhaka:Law Lyceum April 2007, p 286
[x] Section 212 of the Contract Act -1872
[xi] Section 213 of the Contract Act -1872
[xii] Section 214 of the Contract Act -1872
[xiii] Section 27 of the Contract Act -1872
[xiv] Section 10 of Contract Act – 1872
[xv] Haque, Muhammad. Law of Contract. 1st ed p 268 Dhaka:Law Lyceum April 2007
[xvi] Google Books,. 2015. ‘Mercantile Law’. Accessed August 14 2015. https://books.google.com.bd/books?id=pXH991HmO0sC&pg=PA260&lpg=PA260&dq=agent+principal+relationship+between+husband+and+wife&source=bl&ots=0kqhSgdeym&sig=77U93kQwivxFgRyC7MfFB81LE4o&hl=en&sa=X&ved=0CCkQ6AEwAmoVChMIuYitt_aoxwIVR46OCh25uQmr#v=onepage&q=agent%20principal%20relationship%20between%20husband%20and%20wife&f=false.
[xvii] Gibson v O’Keeney (1928) NI 66
[xviii] Babee v Sales (1916) 32 TLR 413
[xix] Upton Rural District Council v Powell (1442) 1 All ER 220.
[xx] Chaudhury. K, Law of Tort,1994 p.55
[xxi] Haque, Muhammad. Law of Contract. 1st ed p 268 Dhaka:Law Lyceum April 2007, p 277