WEEK 7

Question 1

Satisfactory Quality – what is standard?

Answer 1

It means that the quality is satisfactory in the eyes of the reasonable buyer

Question 2

SOGA sets out some considerations on this:

Answer 2

Fit for the purpose of that type of goods
Appearance and finish
Freedom from minor defects
Safe
Durability

Question 3

Knowledge and examination

Answer 3

If the buyer has had any defects pointed out to them or has examined the goods before purchase, they may not have the protection of SOGA

Defects pointed out to buyer have to state the specific flaw in the goods

Buyer under no obligation to examine goods, but if they do and fail to spot an obvious defect, seller not liable

Question 4

Instructions and precautions

Answer 4

Buyer is expected to follow instructions supplied with goods

Seller will not be liable if instructions not followed

Buyer is expected to take normal precautions, but not have to take any special precautions (see Grant v Australian Knitting Mills)

Question 5

Agency

Answer 5

Is the relationship between two persons: the agent and the principal

The purpose of the agent is to form a contract between the principal and a third party

Question 6

Creation of an agency relationship

Answer 6

Express agreement
Implied agreement
Necessity
Agency by Estoppel
Ratification

Question 7

Express agreement

Answer 7

Principal appoints the agent and gives them actual authority to act on their behalf

Question 8

Implied agreement

Answer 8

Where it is assumed that the principal has given the agent authority to act on their behalf

E.g. employer-employee relationship

Question 9

Necessity

Answer 9

Where an emergency arises which requires a person to protect the interests of another

In order to that, the person must take action

See Great Northern Railway v Swaffield

Question 10

Agency by Estoppel

Answer 10

where the principal’s words or actions give the impression that they consent to a person acting as an agent

Question 11

Ratification

Answer 11

Where an agency relationship is made retrospectively
No agency relationship at the time of the agreement

Question 12

Duties of an agent

Answer 12

Duty to perform agreed tasks and follow instructions
Duty to exercise care and skill
Duty not to make a secret profit

Duty not to take a bribe
Duty to maintain confidentiality
Duty to personally perform tasks
Duty to account
Duty to avoid a conflict of interest

Question 13

Rights of an agent

Answer 13

Right to remuneration
Right to a lien over the principal’s property
Right to claim indemnity

Question 14

Relationship between agent, principle and third party

Answer 14

Once an agent has created a contract between the principal and the third party, usually the agent has no further responsibility

This means the only people that can sue and be sued on the contract are the principal and the third party

Question 15

Three types of employment status

Answer 15

Employee – someone who has an employment contract with an employer

Self-employed contractor – someone who provides services for a fee

Worker – someone between the two types above

Question 16

What makes somebody an employee?

Answer 16

Control test
Integration test
Economic reality test
Mutuality of obligation test

Multiple test – most used test in recent times, combining issues of all other tests

Question 17

Termination of employment

Answer 17

1 – Wrongful dismissal
2 – Unfair dismissal
3 – Constructive dismissal

Question 18

Wrongful dismissal

Answer 18

This covers a dismissal that is in breach of the employment contract

E.g. if the correct notice period is not given

Question 19

Unfair dismissal

Answer 19

Key questions to ask if there has been an unfair dismissal are:
Has there been a dismissal?

What was the reason for the dismissal?

Did the employer handle the dismissal in a reasonable manner?

Question 20

Potentially fair reasons for dismissal

Answer 20

1 – Capability
Qualifications
Incompetence
Health

2 - Conduct
Ordinary misconduct & gross misconduct

3 – Redundancy
(if correct procedure is followed)

4 – Statutory bar
e.g. work permit expired, bus driver disqualified from driving

5- Other substantial reasons
Breakdown in working relationships
Key client threatening to withdraw business of small organisation if person not dismissed

Question 21

Automatically unfair reasons for dismissal

Answer 21

Family reasons e.g. pregnancy, maternity and paternity leave
Health & safety reasons e.g. refusing to work in an unsafe environment
Issues relating to trade union membership
Taking part in official industrial action
Requests for the minimum wage
Whistleblowing i.e. making protected disclosures
Accompanying workers to a disciplinary hearing

Question 22

Constructive dismissal

Answer 22

Where an employee is entitled to resign over the employer’s behaviour

Although they resigned, if it is deemed that the behaviour of the employer was unreasonable, they can bring proceedings for unfair dismissal.

Question 23

Possible examples of constructive dismissal

Answer 23

Not receiving contractual remuneration
Change the terms, duties or location per employment contract
Failure to deal with a grievance
Intolerable working environment
Poor handling of disciplinary matters
False accusations of misconduct

Question 24

Conditions required for constructive dismissal

Answer 24

As set out in Western Excavations Ltd v Sharp (1978)

1 – The employer must have done something that is in breach of contract
2 – The employee decides to resign shortly after the breach
3 – The employee resigned purely because of this breach

Can be a series of minor breaches or one big one