BH3301 – Employment Law

Seminar 3 Teaching Notes

The Agreement, Enforceability & Capacity

Q1

B v LLP
1. Whether B has an enforceable KOS with A

2. Depends on whether A’s invitation for B to show up for work the next day
is an offer or ITT

Generally, when a proposal is made the law tends to favour an ITT:

Partridge v Crittenden; Fitch v Snedakar; Boots v Pharmaceutical Society
of Great Britain, etc.

If ITT, B’s act of showing up for work the next day is merely an offer. A,
the prospective employer, has the right to accept or not.

If offer, then B’s act of showing up for work the next day is the
acceptance: Carlill v Carbolic Smoke Ball (both the acceptance and
executed consideration).

Other issues: is there contractual intention? [Reasonable man test: Balfour

v Balfour]

3. Conclusion

Q2

MOM v E (family-run company)

1. K with Minor (common law majority age is 21; but contractual capacity is
18 – see s 35 CLA)
D is clearly below age of contractual capacity under CLA

2. D is competent to enter into a KOS: s 12(1) EA

3. Whether relevant to discuss whether D’s contract is for beneficial services

at common law (also see section 12(2) EA)
Answer: No, because the issue is not whether E can enforce the agreement
against D.

4. D is categorized as a ‘child’: see section 67A EA

General rule: cannot employ a child in an industrial undertaking.

Sub-issue: whether D’s work is an industrial or non-industrial undertaking

© Assoc Prof Dennis Ong

 [See section 2(1) “industrial undertaking” – categories (b), and/or (c)
undertakings engaged in constructional work].
Quite likely, yes

No employer shall employ a child in an industrial undertaking except when

“only members of the same family are employed”: sections 68(1) & (2).

Knowledge of family member

Does E need to know that D was ‘a member of the same family’ at the
time he employed D.
Probably not as the section is silent of the requirement of knowledge.

Whether the nexus of ‘uncle-paternal nephew’ is considered as ‘same

family’
Discuss.

5. If D’s work is non-industrial, then E may employ D if his work is ‘light

work’.

MO’s certificate is conclusive of D’s particular suitability: section 68(3);

see section 2(1), definition of ‘medical officer’.
But, no evidence of MO’s certificate.
Just because there is no MO’s certificate does not mean the work is not
suited to D’s capacity [D’s physique suggests he has the capacity to
perform the work]
Whether E could get the MO’s retrospective certification.

6. D suffered serious injury - section 74 is breached - fine not exceeding

$5,000 and jail not exceeding 2 years (strict liability, which means E’s
ignorance of the breach is irrelevant to criminal liability)

7. Conclusion

Q3

FvG

1. Capacity of employer, F
Nature of business – sole proprietor

2. Signed KOS – binding

Is performance of scholarship likely to be beyond one year from date of
agreement? If yes, is the ‘scholarship’ term part of the written agreement? [see
section 6(1) CLA]. If not, G cannot enforce F’s promise of scholarship to G.

3. Capacity of employee, G
Minor at common law, but competent to enter into KOS under section 12(1)
EA
“young person” under section 67A EA
F can only enforce contract against G if beneficial contract.

© Assoc Prof Dennis Ong

 De Francesco v Barnum (holistic view)

Pros: (1) extremely attractive salary (2) scholarship/education: see

Government of Malaysia v Gurcharan Singh
Cons: (1) revealing clothes, compromising positions (2) reputation: see
Chaplin v Leslie Frewin (Publishers) Ltd (3) exposure to wrong company

Discuss

If KOS is not beneficial, F cannot enforce the K against G

F cannot claim back money spent on bond (“restitution ends when repayment
begins”]

4. Assuming that the agreement is not beneficial to the minor, G, is the

scholarship agreement unenforceable by G against F?
Arguably, the minor should still be able to enforce the agreement against the
adult notwithstanding that the agreement is non-beneficial.

5. Conclusion

Q4

MAS v H

1. Whether MAS can enforce the KOS against H (specific performance,

injunction, damages?)

2. Whether there is a KOS

Offer & acceptance
Intention, consideration
Formalities: no requirement for agreement to be in writing, verbal
agreement will do.

Possible arguments – only a ‘gentleman’s agreement’, the formalizing

(execution before witnesses) would be the binding agreement.

3. Whether H is in anticipatory repudiatory breach in accepting another job

Is there repudiatory breach? What is tenure of H’s agreement with bank? If
it overlaps with ‘1 October commencement date’ of MAS agreement, H is
in repudiatory breach.
What are MAS’s options? Accept or affirm.

4. Conclusion

© Assoc Prof Dennis Ong

Q5

J v John, personal tutor

1. Whether there is a KOS between Jill and John

John’s case
No contract.

Argument 1
The conditional offer has not become unconditional (condition 1 is satisfied
but not condition 2) and is incapable of acceptance by Jill.
Argument 2
This is a unilateral contract (promise of job in return for an act). In order to
accept, Jill must comply with the terms of the offer (condition 1 is satisfied but
not condition 2).
Argument 3
John is under no obligation to keep his offer open indefinitely and can revoke
his offer any time before Jill accepts it.

Jill’s case
Jill will argue that John is obliged to allow her to furnish another academic
reference (since the first reference is untrue).

2. Whether Jill has a claim against her personal tutor for the unfounded but
damaging academic reference: Spring v Guardian Assurance plc (ex-
employer/employee); Ramesh v Krishnan [2017] UKCA (principal-agent
relationship; Menon CJ said, obiter, no difference whether principal-agent or
employer-employee relationship)

On the facts, no employment relationship between a student and her personal

tutor.

The action of negligent misstatement is a tort – Jill must prove:

1. Duty of care (Spandeck) [Quite clearly yes]
2. Breach; and,
3. Damages – causation and remoteness. [Causation – did she lose the
job or only the opportunity of the job in consequence of the
malicious reference?].
Defence of ‘volenti’? She chose the personal tutor as her referee and must
accept his reference, whether favourable or not.

3. Conclusion

© Assoc Prof Dennis Ong

© Assoc Prof Dennis Ong