III. MASTER AND SERVANT.
The relation of master and servant depends entirely upon a contract of hiring and service. If the contract is not to be fully performed within the period of one year, it is void if not in writing; and this necessity for a written contract is not confined to cases where the service is intended to be for more than one year. If a servant be hired on Monday for the term of one year, to commence on the following Saturday, the contract ought to be in writing, as a verbal contract would be void on the ground indicated above—namely, that it was not intended to be fully performed within one year from the date on which it was entered into. If, however, the service was to commence on the Monday on which the verbal contract of hiring was entered into, no such objection would arise.
Assuming that a valid contract is entered into, there are still some peculiarities attached to certain kinds of service, which do not affect others. Thus, in England, both domestic servants and agricultural labourers are usually engaged for a year; but the former class may put an end to the engagement at any time by giving one month’s notice; while the latter are irrevocably bound for the entire year, unless the hiring be determined by mutual consent. This difference is founded upon universal custom, which has the force of law. Probably the custom had its origin in early ages, and was founded upon considerations of convenience. The work of an agricultural labourer is distributed very unequally over the year, being much more heavy at some seasons than at others; and therefore it is reasonable that a man who receives wages by the year should not be allowed to take his money for the light season, and leave his situation when the work is heavier. Domestic servants, on the other hand, have their work more evenly distributed over the entire year, although they also have sometimes to do more work than at other times, but not to the same extent as agricultural labourers; and being brought into more immediate contact with their master’s family (especially the mistress), it might in many cases be very unpleasant to be obliged to carry into full effect the hiring for a whole year. Hence, either master or mistress on the one hand, or domestic servant on the other, may at any time give ‘a month’s warning,’ and so dissolve the engagement. In Scotland, domestic servants are generally hired for a month or for ‘the term,’ which is half a year, but agricultural labourers for a year, as in England.
The more highly paid class of servants, such as managers, cashiers, clerks above the grade of copyists, &c., are generally engaged for an indefinite term, subject to three months’ notice. Such an engagement as this, although it may possibly continue for several years, need not be in writing, because it may be dissolved within the year; and it is only when a contract which is entire and indivisible cannot be fully performed within that time, that writing is necessary. It is, however, desirable that the terms of the engagement should be in writing, for the sake of certainty and in order to avoid misunderstanding. Copying-clerks, journeymen, and persons occupying positions of a similar kind, are usually subject to one month’s notice. In all cases, the obligation as to notice is reciprocal, and equally binding on both parties, mutuality being essential to the agreement. There is, however, one distinction which has a substantial reason for its existence: a master may pay his clerk or manager three months’ salary, or his journeyman or copying-clerk one month’s salary, and dismiss him immediately; but the servant must give the proper notice, and cannot throw up his engagement by sacrificing salary in lieu of notice. The reason for this is obvious: if a clerk gets his salary without working for it, instead of working out his notice, he is not in any way injured, but may be benefited by the prompt dismissal; for he may obtain an engagement elsewhere before the time when the notice would have expired. But it would be difficult to estimate the loss which might be sustained by a master in consequence of the sudden withdrawal of a confidential clerk or manager. For any breach of contract an action of damages will lie at the instance of either party, and the measure of damages will be the probable loss to the servant before he can find a new situation, or to the master before he can find a new servant.
Whenever a person is hired without any stipulation as to notice, the engagement will be subject to any custom which may exist in the particular trade or business for which he was engaged. In some branches of business, commercial travellers claim to be engaged absolutely by the year, and this custom has been proved and allowed in court; a traveller obtaining a verdict for the balance of his year’s salary, when he had been dismissed in the middle of the year. Ordinary labourers, engaged by the week, are only entitled to one week’s notice; but miners are by custom required to give, and are entitled to receive, fourteen days’ notice.
Gross misconduct on the part of the servant is in all cases a sufficient reason for dismissal without notice; and generally, if the misconduct be sufficient to justify this extreme course, the wages actually earned by the offender are forfeited, and he or she cannot recover the same by legal proceedings. A manager who imparts his master’s secrets to a rival in business; a cashier who cannot account for the cash intrusted to his care; a journeyman who recklessly destroys any of his master’s goods—may all be summarily dismissed. So also may any kind of servant who persistently disobeys his master’s orders, or frequently absents himself without leave. A female domestic servant who without reasonable cause stays out all night, or who is known to be guilty of immorality, is within the same category. It is scarcely necessary to add that any dishonest act by a servant, such as misappropriating his or her master’s money or goods, ought to be followed on detection by immediate dismissal, even though it may not be thought necessary or desirable to prosecute the servant.
In the absence of any special agreement on the subject, a servant cannot be compelled to make good the loss occasioned by accidental breakages; and any deduction from the salary or wages earned in respect of such breakages would be illegal, unless the master were to establish a claim for reparation in respect of fault or gross negligence; just as in the case of a lawyer or a doctor who has bungled the duty intrusted to him through want of skill or due care.
The death of the master terminates the contract. In England, the servant may be paid wages up to the time of his master’s death, if the executors do not retain his services, which would amount to a new hiring so far as relates to notice; but in Scotland he is entitled to be paid wages and board-wages up to the end of his engagement, unless a new situation should in the meantime be procured for him either by himself or the executors. He is at anyrate entitled to be kept free from loss, because he was ready to fulfil his part of the contract.
On the bankruptcy of the master, each clerk or servant, labourer or workman—if the assets be sufficient—is entitled to be paid in full the salary or wages due to him in respect of services rendered to the bankrupt during four months before the date of the receiving order, if the amount do not exceed fifty pounds, before any dividend is paid to ordinary creditors. For any excess, the servant must rank against his master’s estate as an ordinary creditor, with whom he will rank for dividend thereon. This right of priority is, however, subject to the right of the landlord to distrain for the rent due, not exceeding a twelvemonth, and is shared with the collectors of rates and taxes within certain specified limits. If the net amount of assets in hand, after paying expenses, should be insufficient to cover the preferential payments, the money must be divided among the parties entitled, by way of preferential dividend. In Scotland, the farm-servant’s claim for wages is preferable to the landlord’s claim for rent.
A master is liable for any damage done to the property of strangers by his servant in the course of his ordinary employment, but not otherwise. For example: a groom who is sent out by his master with a horse and carriage, and drives so negligently as to injure another person’s horse or carriage, renders his master liable to an action for damages. An engine-driver who disregards a danger-signal, and causes a collision, involves the Railway Company in a liability for reparation to every passenger who may be injured. But a master is not liable if the servant act beyond the scope of his employment; if, for example, the groom were accidentally to wound a passer-by with the gamekeeper’s gun, or even if the gamekeeper himself were voluntarily to wound a poacher, unless it were proved that he was actually ordered by his master to do it.
Before January 1, 1881, a master was not liable to an action for damages in respect of any injury sustained by any person employed by him through the negligence of a fellow-servant; though he might be held responsible if the accident which caused the injury were caused by his own negligence. But the law has been altered, and a workman is now entitled to compensation for accidental injury sustained by reason of the negligence of any foreman or superintendent in the service of his employer; or of any person whose orders the workman was bound to obey; or by reason of anything done in compliance with the rules or bylaws of the employer, or in obedience to particular instructions given by any person duly authorised for that purpose: or in the case of railway servants, by reason of the negligence of any signalman, pointsman, engine-driver, &c. But the right to compensation is not to arise in case the workman knew of the negligence which caused the injury, and failed to give notice to the employer or some person superior to himself in the service of the employer; nor if the rules or bylaws from the observance of which the accident arose had been approved by the proper department of the government; neither would a workman who by his own negligence had contributed to the accident be entitled to compensation: the common-law rule as to contributory negligence being applicable. In case of any accident which is within the provisions of the Act, notice of the injury must be given to the employer within six weeks, and any action must be commenced within six months after the occurrence of the accident; or in case of death, proceedings must be taken within twelve months from the date of death. The compensation must not exceed in amount three years’ earnings; and the action must in England be brought in the County Court; in Scotland in the Sheriff Court; and in Ireland in the Civil Bill Court; the proceedings in each case being removable into a superior court at the instance of either party. The benefits of the Act do not extend to domestic or menial servants, but are available for railway servants, labourers agricultural and general, journeymen, artificers, handicraftsmen, and persons otherwise engaged in manual labour.
In case of the illness of a servant—unless such illness be caused by his or her own misconduct—the master cannot legally refuse to pay the wages which may accrue during the time of such illness; but the service may be terminated by notice in the usual way; the principle being that no man can be held accountable for what is beyond his own control. The servant being willing to do his duty, but rendered unable to do so by circumstances beyond his own control, he must not be punished for such inability by being deprived of his wages. A master is only liable to pay his servant’s medical attendant when the master has employed him, but not when the doctor is employed by the servant himself.
A master may bring an action against a stranger for any injury done to his servant, whereby he (the master) suffers loss or inconvenience, or for enticing his servant away, and inducing him to neglect or refuse to fulfil his engagement.
When a servant applies to any person for a new engagement, it is usual for him to refer to his previous master for a character, as it would be objectionable for a stranger to be employed without some means of knowing whether he was competent and respectable. In answering inquiries as to character and ability, it is necessary to be very careful to say neither more nor less than the exact truth. If an undeserved bad character be given, the servant may recover damages, on establishing malice and want of probable cause, in an action for libel or slander, according to the mode in which the character was given, in writing or verbally. On the other hand, suppression of unfavourable facts may have still more serious consequences. If a servant be known to be dishonest, and his master ventures to recommend him as trustworthy, he will render himself liable to make good any loss occasioned by subsequent acts of dishonesty which may be committed by the servant in his new situation, and which without such recommendation could not have been committed. When nothing favourable can be said, the safest way is to decline to answer any inquiries on the subject. But it would be unfair to adopt this course without adequate cause, for such refusal would inevitably be construed as equivalent to giving the servant a bad character, and would frequently prove an obstacle to his obtaining another situation.