Opinion writing

Topics: Contract, Contract law, Breach of contract Pages: 7 (1880 words) Published: June 22, 2014
Professor Emeritus Timmy ‘Tim’ Ng Chong Jee
Room AL541,
Department of Fundamental Chemistry (DFC),
Faculty of Pure Sciences,
University Institute of Technology (UiT),
Shah Alam.

RE: ADVICE ON EMPLOYMENT RELATED MATTERS

With reference to the above matter, we have received your email dated 2nd April 2014 and perused the documents attached. The following is our opinion based on the available documents and the subsequent clarifications.

1.0 THE MATERIAL FACTS

1.2 On 2nd April 2011, you hired two domestic servants from the Philippines; Miss Dimahyanti and Miss Aleeza (from hereon will be referred as ‘the twins’).

1.3 Before the twins signed the contract, you expressed to them that they are prohibited from getting pregnant by any other person other than yourself.

1.4 Recently, Miss Dimahyanti was impregnated by her boyfriend, Mohd Ariba Andre who sneaked into your house with the help of Miss Aleeza.

1.5 On the other hand, Heegor, a boy who carries out duties for you knew about the misbehaviours of the twins but kept silent.
1.6 Also, Miss Aleeza admitted making ice blocks using unboiled water and adding them into your ice lemon tea. As a result, you suffered from belly aches for a few days.

2.0 THE GENERAL LAW AND ISSUES
2.1 The laws involved in are contract law and employment law. We will advise you on issues involving breach of contract and employment related matters. In this letter, we have divided the discussions based on the parties involved.

3.0 THE TWINS

3.1 Did the twins breach the contract of employment when they sneaked in Mohd Ariba Andre into your house?

3.1.1 The Filipino twins are employees under Section 2 (d) of the Employment Amendment Act 2012 (from hereon will be referred as ‘EA’), thus they are bound by the EA.

3.1.2 Referring to the definition of ‘contract of service’ under Section 2 of the Employment Act 1955 (from hereon will be referred as EA), a contract of service can be written, oral, express or implied.

3.1.3 Expressed terms are those agreed between the parties whereas implied terms are implied by the courts or the statute. If an expressed term is not fulfilled, there will be a breach of contract.

3.1.4 In the contract, there is a clause dealing with access to the premise by the employee. Anything that is done in contravention of this clause is a breach of an expressed term.
3.1.5 When they signed the contract, the twins have undertaken responsibility to keep your premise safe from strangers.
3.1.6 The twins’ act of sneaking Mohd Ariba Andre into your house is an act of breach of the term in the contract.
4.0 MISS DIMAHYANTI

4.1 Did Miss Dimahyanti breach the contract of employment by getting herself ​pregnant?

4.1.1 There is a clause in the contract stated that the employee must avoid any action which will hinder the performance of the employment contract, but it does not mention specifically the prohibition to get pregnant.

4.1.2 However, despite of the silence on the specific prohibition to get pregnant, there was an oral statement made by you regarding to it. In the case of Bannerman v White (1861) CB (NS) 844, the court stated that the greater the importance a party places on a statement, the more likely the statement will be regarded as a term.

4.1.3 According to the Parol Evidence Rule as set out in section 91 of the Evidence Act 1950, once a contract is entered, it cannot be varied or changed and it is the conclusive evidence of the contract. In addition, section 92 of the act further states that no evidence of oral agreement shall be admitted to modify the terms of the contract.

4.1.4 However, there is also recognition that the courts take into account pre-contractual statement and treating it as collateral contract as stated in the case of Tan Swee Ho Company Ltd v Ali Hussain Brothers [1980] 2 MLJ 16. In this case, a collateral contract exists when the oral promise was relied on and it...
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