Thursday, 03 June 2021

Are Implied Duties Included in my Employment Contract?

Written by Mai Sarkissian

Reading Time: 3 minutes

What are implied duties?

Employment contracts do not contain implied duties. However, just because they aren’t in the contract, doesn’t mean they don’t exist. There are a range of implied duties that may apply to your employment.

List of Implied Duties

Implied duty to obey lawful commands

Importantly, an employee must obey all lawful and reasonable commands given by the employer. This can include orders relating to hours, type of work, general duties etc. The implied duty does not extend to unlawful commands. For instance, unlawful commands can include illegal or dangerous acts. Furthermore, acts outside the scope of employment may also be unlawful commands.

Example of a lawful command

Technology has become an important part of many workplaces. It is common to see many employers changing the way they work i.e. by using new computer systems. Adapting to a new computer system, as long as the nature of the work does not significantly change, is therefore an implied duty.

Implied duty to exercise reasonable care and skill

The employee has a duty to exercise reasonable care in their employment. This implied duty applies to all tasks carried out. The level of care and skill required is that of a ‘reasonable worker’ in the same position. In other words, the employee can only held to the standard of their position, not higher.

Implied duty of good faith

The implied duty of good faith means that as an employee, you cannot act in conflict with your duties to your employee. This means that the employee cannot act in opposition to their employer. Acting in opposition could include: soliciting customers, creating a conflict of interest and making secret profits etc. For further information on what constitutes good faith, see here.

Implied duty relating to confidential information

When the employee and employer are in a ‘fiduciary relationship’ the implied duty relating to confidential information will apply. This is because a ‘fiduciary relationship’ requires a strong level of trust and confidence. If this implied duty applies, the employee cannot share confidential information or trade secrets to those outside the employment.

Implied duty to disclose

Possibly one of the most interesting of the implied duties – the implied duty to disclose. Interestingly, there is no implied duty to disclose your own breaches of contract to your employer. However, as many employment contracts now have written terms surrounding this duty to disclosure, this implied duty may have very limited scope. 

Furthermore, there is an implied duty to disclose your co-workers’ breaches to your employer. For example, if there is a theft in the workplace and an employee has knowledge of the theft, there is a legal obligation to report the theft to the employer.

Do all of these implied duties apply to my employment contract?

Well, it depends. Implied duties can be contracted out of. In other words, an employer can exclude them. The only way to exclude an implied duty is to expressly exclude it within the contract’s terms. For example, if your employment contract has a term stating that every employee must disclose any breaches they make, the employer has effectively overridden the implied duty to disclose. Once an implied duty is excluded, the implied duty cannot be relied upon.

What if I breach these implied duties?

If an employee acts contrary to any of the above implied duties, they may be in breach of an implied duty. Breaching an implied duty, just like breaching an express duty, can result in a breach of contract and result in the immediate termination of your employment. It is important to know what implied duties apply to you and your employment contract.

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