Element of a Valid Contract Employment Contract - Coursework Example

Modern Employment Contract Student Name: Instructor’s Name: Course Code and Name University: Date Assignment is due Modern Employment Contract Introduction Human effort is a vital tool in any organization in order to achieve an organization’s goals and objectives. The success of any organization depends on how best the workers correlate between themselves and also with their employers. The strength of an employer-employee relationship is determined by how both parties obey the agreed employment contract (Brodie 2000, pp 54-56). Upholding and maintaining a dominant bond between the employer and the worker is brought by carefully setting up a detailed employment contract. Employment contract is the legal document that shows the terms and conditions an employer has agreed with his employee, which, helps to protect the interests of both parties. To maximize the business profits, the employer will be interested to minimize costs of production in which labor is present. This means paying the employee as little as he can take. However, the employee also desires to gain much so that he sustains his personal needs. This calls for a consensus of both parties evident in the employment contract. Trade unions have been established to protect the employees’ rights, which may be abused by many wealthy employers. They help to advocate for the right hours of employment, layoff procedures, and representation by a union official. Similarly, the employer has the right to have an honest employee, someone with a good record of hard work in the organization, and he is productive. Failure to which, he is entitled to terminate the employment contract or even sue for any damages caused by the employee. Element of a Valid Contract Employment Contract There are six main essential, elements found in a valid employment contract. They include: offer, acceptance, the intention of the parties to create legal intentions, the legal capacity to enter into a contract, valuable consideration, and also the activity under which the contract is formed should be legal. The employer makes an offer in which he must be clear and properly communicate to the employee. The offer can be made to an individual, a group or it can be universal. It can be made through writing or oral means. It should be distinguished from an invitation to treat. While an offer is an expression of the employer’s willingness to bind to the contract, an invitation to treat is an expression to show interest to enter into negotiations with the employee but the employer does not intend to form a binding contract by then. When the employee is comfortable with the offer, he makes an acceptance and notifies the employer. It can be communicated through oral, writing and also postal means. Acceptance can be express, implied or conditional. When it is express, the employee directly shows his interest to the employer and he consents to the offer. The acceptance becomes implied when the employee’s actions indicate acceptance without any need for proof, while, in conditional acceptance, the employee requires the employer to fulfill certain conditions so that he accepts the offer. For the contract to be enforceable by law, the parties should have the intention to create a legal relationship. Enforceability of a Contract Disputes on employment contracts arising from social and domestic issues are not considered. It is difficult to establish whether the contracts were made with an intention to create legal relations. In Bradley vs Bradley, the court held that the family dispute regarding wages dating a period of ten years were not enforceable by the law since there was no aim to form legal relations between the family members. The law also requires people with certain capacity to enter into a contract. Both parties should be of sound mind before entering into a contract. Incase a contract was entered into when a party was in a lucid interval, the contract is said to be enforceable at the option of the party. The parties should also have attained the age of majority. A person at the age of minority should have a guarantor who will enter into the contract on his behalf. The contract will be enforceable at his option once he reaches the age of majority. Parties intending to enter into contracts should also not be bankrupt neither should they be drunk. There should also be a valuable consideration of something in return when entering a contract. A consideration is the promise to grant or perform something for the other party. It can be executed or executory. A consideration becomes executed when the employer promises to pay the employee once he has executed the agreed work. Executory consideration arises when no party has fulfilled the obligations, but, they have both promised to, that is, the employee promises to perform his act and the employer promises to pay the employer once he has completed his work. When the employee does not execute his obligation the employer has ground to sue the employee. A consideration should not be past that is, the promise should not be made when the obligations have been fulfilled, but, it should be made prior to the fulfillment. As long as consideration has some value, the law does not value its adequacy, but, it is satisfied with its sufficiency. The contract should then involve legal activities. Illegal acts like hiring a person to kill, transporting smuggled goods or illegal items are not enforceable by the court in case of breach of contract. When the employment contract involves certain procedures, parties should ensure they undergo all the formalities so that the contracts are considered valid. Having formed the employment contract, the parties should act to the terms and conditions they have agreed. Duties of an Employee in the Employment Contract The employee has a duty to know his status in the employment contract, whether he is a worker or an autonomous contractor. This is because the two parties have different terms of employment towards the employer. They also have different legal rights and knowing your status will help determine your rights at work. It is necessary to distinguish between the affiliation between the employer and a worker and the employer and an independent contractor. While an independent contractor is hired for the purpose of a project, an employee is always under the direction of the employer. The employer has no control over the independent contractor as long as he performs the task as stipulated in their contract agreement, while, the employee is entitled to constant supervision in the performance of their job. The employee is paid on a salary basis, but, the independent contractor is paid as per the agreement. They can agree on installments after the contractor has performed the project to a certain stage. Duties of an Employer in an Employment Contract The employer is entitled to provide the employee with the required tools of work while an independent contractor will provide their own equipment and act on their own initiative. The employer is liable for any liability caused by the employer in the line of his duty. The victim can sue the employer under vicarious liability. However, the employer is not liable for any injury or damage caused by the independent contractor and cannot be sued on his account. In cases where the employer has a nondelegable duty of care, the employer should provide a safe working environment for anyone working on the land whether it is the employee or the independent contractor who does not have an immediate control over their working environment. Unlike an independent contractor, a worker is entitled to a range of statutory entitlements which include workers compensation, job security, long service leave, unfair dismissal rights, deduction of tax in their salaries, requirements for record keeping and also determining the ownership of intellectual property. An independent contractor has the right to work for other clients and asking for assistance from other workers. He has to make sure he supplies himself with own tools and equipment. He insures against any work-related injury and he is not entitled to any leave. His payment is on the basis of the results he gives to the employer. Under employment, one can be employed casually or permanently. Casual employment involves people being employed on an informal and irregular basis. A casual’s contract can be terminated on comparatively short notice. Still, some casuals have fixed term contracts. The Workplace Relations Act clearly stipulates some obligations of a casual: they should not have the annual leave. They are not entitled to personal leave. They must also receive loading of at least twenty percent on top of their basic pay. They are not at liberty to the same amount of unpaid parental leave like the permanent employees. A casual should be differentiated from a permanent part-time worker who is entitled to the same benefits of a full-time permanent worker. However, many companies do not wish to pay benefits to contingent workers (part time workers). There are also volunteers in organizations that are not entitled to any financial rewards or benefits. They are entitled to refund of any expense they make in the course of employment. Volunteers are not part of any forms of contracts. They do not have to avail themselves in the work. They will turn up when they feel to, although, they are required to meet certain standards and guidelines. Being paid for volunteering does not give a sufficient reason to make it a contractual relationship. They can gain nonfinancial benefits, for example, trainings and exposures to the job they perform which can increase their experience in their resumes. Employer-Employee Relationship To maintain a strong relationship with his employer, an employee has to be dutiful. He has to obey the employment contract. He also has to obey his employer’s orders as long as they are lawful and reasonable. When an employee fails to obey such orders, he may be subject to dismissal or demotion to a lower rank in his work. It also injures the personal relationship between them; therefore, the professional relationship is automatically tarnished. The employee has the duty to exercise competence and reasonable care in his work. Depending on the type of the job, the worker owes the employer the best he can perform in his ability. In Komninos vs Arizonas Mexican Cantina Restaurant, a restaurant discovered that the employee did not meet the competence skills he had presented as a Mexican food chef and he was dismissed. The employee has the duty to take care of the employer’s property. In the absence of the employer, the employee should not misuse the employer’s assets or abuse them. He should take standard care the property deserves. In cases of misconduct, the employee should indemnify the employer for any damage caused. If there was no breach of duty of care, the employee is not entitled to pay any harm caused in the course of duty. Instead, he should pay for the injury caused. The employee has the duty to provide faithful service in his line of duty. For example, one should not start a competitive business to that of the employer when he is still in the job. In Orr vs University of Tasmania, a professor of philosophy seduced one of his students and therefore breached his duty of faithful service to his employer. The court held that there was a complete repudiation of the duty, which would destroy the reputation of the university to the outside world. Employees have the duty to hand over inventions or any other products they have developed to their employers, since, they have used the skills and materials earned from employers. When the employee proves that the materials used belonged to him and that the inventions were developed in the employees own time, then the employee can demand them to be his. An employee has the duty to disclose all the matters his employer requires to know from him. The information includes his history career life, a possible misconduct, and his experience. When asked, he should give the information truthfully and in an accurate way. The employee also has the duty of keeping the employers secrets confidential during the employment contract and also after it has ended. He should not sell out vital ideas that the employer has trusted him with to the public since it will expose the business to unfavorable competition. However, if the disclosure involves the public interest, the employee is entitled to disclose. The employee is also entitled to report any incident to his employer on matters relating the affairs of the organization. The employers also have duties they should fulfill to their employees. Failure to which, the relationship will deteriorate or even end when the employee decides to leave the job. The employee should pay the employees fairly and on time. The employer should pay the employee depending on the nature of the job and also the skills that the employee possesses. It would be so unfair to pay highly educated personnel an amount that he considers low. It would also not motivate him; therefore, he will not give the best in job. The employer has the duty to indemnify the employee in case he causes harm or injury to himself or to other people. He will only be indemnified if he was in the course of duty when the damage occurred. The employer has the duty to provide accommodation to the workers especially, if the workplace is located in a remote area where it would be so difficult to access accommodation facilities. The employer should provide the maximum safety and care he should in his position (Kreithner 2007, pp. 432-435). He should provide employees with protective gear especially in work that involves physical handling of harmful pharmaceutical products. Gloves, aprons and head masks should be present depending on the nature of the job. Such provision helps the employee feel a personal relationship between him and his employer. He should also make sure that he provides and maintains safe work systems. The employer also should provide training to the employee relating the skills he has and the ones he should acquire in that job. He should also give the necessary instructions regarding how the task should be performed. Information necessary to the employees should be availed in time to help avoid inconveniences. With individual duties, the parties also have joint duties towards each other that will help grow the interrelationship. Both parties have mutuality in obligations. The employer has the duty to pay for the work done while the employee has the duty to work for the work he ought to be paid. They also have the duty of a mutual respect and co-operation. The employer has to give the employee the privacy he deserves. He should not interfere with the personal issues of the employee unless they directly affect his performance in his output. Similarly, the employee should understand the boundary between their professional relationships and should not snoop around for information to pin his boss down (Cromton1999, pp. 203-220). Industrial Dispute and Conflicts With the rise in industrialization, there have been a lot of industrial disputes which include: Go-slows, peaceful demonstrations and strikes by laborers whose main conflict is the pay by their employers. Intensification of work, job security and other factors are also known to trigger these conflicts. They are not beneficial to the business since at that time the employees should have been working yet they will demand their wages. Industrial conflict can be seen as organized and unorganized conflict. Organized conflict involves industrial strikes, overtime bans, output restrictions, political demonstrations, lockouts and others which involved planned activities. It mostly accommodates groups of workers and their trade unions where they believe they will find a solution after staging the organized conflict. Unorganized conflict, which is informal, mostly involves an individual who feels discontented by a particular issue and decides to take action himself. It is hard to notice it because someone may disguise sickness and take a one week leave. It is mostly not meant to bring a drastic change. It involves activities like absenteeism, low productivity, indiscipline and high labor turnover (Kreithner 2007, pp. 321-235). For a successful industrial action, group of employees should try to ensure they genuinely have an objective to reach an agreement. In this case, the motive will help them not to be violent and instead demonstrate peacefully. In return, the employers will give a responsive action and it should be done immediately. When having an industrial action, it is not ethic to suspend or terminate employer’s contract unless they cause damage in the process. Forms of Protected Industrial Dispute There are three forms of protected industrial action which include: An employee claim action, an employee response action and an employer response action. Employee claim action is initiated by the workers so that they are able to take action against their employer concerning a certain issue. They must make sure the claim action is authorized by a protected action, they do not engage in unlawful activities and they must make sure they meet any notice requirements in case they are issued with a suspension order. Employee response action is where the employees again respond to their own action following the common requirements. Employer response action is now taken by the employer in response to the claims made by the employees. During this period, the employer may fail ton pay his employees since they have made no input to the organization. However, there are circumstances that may cause termination of a protected industrial action. They include: if the action causes damage to the employer or both. This is because industrial actions are not meant to harm anyone. It is just a way of communication. The action can also be stopped where it has been staged for a while, but there has not been a response for the period. It shows that any other action that would follow after they would yield the same results. If the action is a threat to nations development, it would be stopped because once started it will be more grievous than it will help. Termination of Employment Contract Incase the relationship does not work anymore termination of employment would be the best option for the interest of the organization as a whole. Such actions that would amount to this include obscenity in a speech to the employer, drug abuse in the work premises dishonesty by the employee and also engaging in criminal conduct while at work (Rubery, Smith & Fagan, 1999, pp. 102-110). Conclusion In conclusion, a modern employment contract is more complex than in the recent past. With the increased duties and responsibilities of both the employer and employee relationship has been redefined. Employment conflicts, on the other hand, have increased as both employees and employers try to fight for their rights. Globalization and ethical issues have also contributed to the complexity of employer employee relationship. Withstanding the mere conflicts involved in the workplace, the employer and his employee can maintain a happy and healthy working relationship if they abide to the employment contract they have agreed upon and fulfill their individual duties towards each other. 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