Abstract
Rights and obligations of the parties to the contract of employment emanate both in the U.A.R. and Sudan, from the contract itself. In other words, the parties are supposed to agree on these rights and obligations in the contract. However, the regulation of the contract in the U.A.R. by the Labour and Civil Codes, releases the parties of most of their obligations to specify their rights and obligations in the contract,1 with the exception of the probation period.2 Though the same should be expected in Sudan,3 section 7 of the Sudan Ordinance prescribes the specification of these rights and obligations in every written contract, and furthermore itemises what shoud be specified thereon in the attested contracts.4 However, both in the U.A.R. and Sudan, custom of the locality and trade is considered as a source of reference, spelling out the rights and obligations of the parties, but only if there is nothing in the contract to expressly or impliedly preclude such reference.5
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References
Vide footnote 2 to Chapter II, supra’, vide also section 689 of the U.A.R. Civil Code, which provides that “the worker shall in addition to the obligations prescribed in the preceding sections, be bound by the obligations prescribed in the special laws”; and vide section 693 of the Code, which provides in similar terms, in respect of the obligations of the employer. the special laws referred to in these two sections, presumably mean the labour laws, in the first instance.
Section 44 of the U.A.R. Civil Code provides that “the period of probation shall be fixed in the contract of employment.” Vide Cairo Labour Court in case No. 4029 of 1956 (in El-Hawwari, p. 73), in which it was held that a worker cannot be said to have been appointed under probation, unless that is fixed in writing (though only for the sake of proof by the employer-vide Section II of Chapter II, supra); vide also the same Court in case No. 2087 of 1960 (in Ibid.); and vide section 939(1) of the Draft Civil Code, which contained an express provision as these cases decided, but was not adopted; vide also Badawi, K. M., p. 86; Habeeb, p. 270; and Faheem, p. 23.
“… In the relationship of master and servant,… express contractual terms are often absent, or prescribe inadequately the reciprocal rights and duties of the parties”: Cheshire and Fifoot, p. 141.
Section 7 of the Sudan Ordinance provides: “Every written contract shall contain in clear and unambiguous terms all that may be necessary to define the rights and obligations of the parties thereto and, without prejudice to the generality of the foregoing, a responsible person shall not attest any contract of service unless it specifies as accurately as may be: (a) the name of the employer and of the undertaking and of the place of employment; (b) the name of the employed person and any other particulars necessary for his identification; (c) the nature of the service to be performed; (d) the place or limits within which such service is to be performed; (e) the wages to be paid and the manner and periodicity of payments of wages; (f) the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to the provisions of section 10; (g) any special conditions of the contract.” Section 8 of the Bahraini Labour Code, and section 6 of the Adenese Ordinance provide in similar terms. These provisions in Sudan, Bahrain and Aden, seem to have been inspired by Article 5 of the I.L.O. Convention No. 64 of 1939. Vide Section II of Chapter II, supra, re attested contracts.
Vide section 682 of the U.A.R. Civil Code, in Section II of Chapter I, supra. For Sudan, vide Cheshire and Fifoot, pp. 122-124; and Batt, p. 154.
The rights of the worker to receive wages and take holidays and leaves, and the obligations of the employer to pay wages to the worker, and grant him his holidays and leaves, are discussed in Chapters IV and V, infra.
The Libyan Labour Code (section 13(d)), is the only one in the other Arab countries, which prescribes the said obligation, but without the saving provision in the U.A.R.
Sections 46, 57(a) and 132(a), of the Kuwaiti, Qatari and Iraqi Labour Codes, respectively, provide to the same effect. Some writers advocate that the means of transport should be appropriate to the position of the worker: vide Butros and Rajab, p. 270; El-Fakahani, 1959 Supplement, pp. 147-8; and Faheem, p. 53. Vide Section I, F, of this Chapter, infra, for the transportation of sick workers.
Habeeb, p. 360; and El-Fakahani, 1959 Supplement, p. 146, accept the view in the Explanatory Note, without comment.
Vide Alexandria Court of Cassation in case No. 1098 of 1953 (in Habeeb, p. 362); and vide El-Fakahani, 1959 Supplement, p. 147. It is believed that the section should be amended, so as to add this obligation, at least on the basis of sharing the expenses between the employer and the Government, and up to the place in which the worker is to live with his family, which is not necessarily the place of work. Such a suggestion is in line with the employer’s obligation to provide housing for married workers, in certain circumstances (vide Section I, G, of this Chapter, infra).
Refer to Section III of Chapter II, supra, for the definition and classification of the limited and unlimited contracts.
Refer to Section II, B, of Chapter VI, infra.
Badawi, K. M., pp. 184-5; Butros and Rajab, p. 270; Faheem, p. 54; and Habeeb, p. 361, are of the same opinion.
Murad, p. 328; Zaki, p. 294; Naguib and Bakr, p. 103; Habeeb, p. 362; Rashed and Hashem, p. 101; and Faheem, p. 61, are of the same opinion.
Vide El-Fakahani, 1959 Supplement, p. 178; and Naguib and Bakr, p. 103. However, if the employer is obliged to provide housing for his workers (vide Section I, G, of this Chapter, infra), and the worker refuses to take the employer’s housing, Butros and Rajab, p. 291; Badawi, K. M., pp. 188-189; and Sabbour, p. 220, correctly submit that the employer should be relieved of the transportation obligation, prescribed by section 64. Faheem, p. 63, maintains otherwise, on the ground that there is no obligation on the worker, to accept the employer’s housing.
Vide Section I, G, of this Chapter, infra.
Vide Zaki, p. 294, who quotes the Explanatory note to the U.A.R. Labour Code, in implied support. the said Note says that “section 64 is enacted to meet the worker’s complaint that their far-placed establishments do not provide for them means of transport, so that the workers are obliged as a result, to wake up early, in order to avoid late arrival and the disciplinary penalty involved. As the worker is usually obliged to make a walking journey, the legislator obliges the said employers to provide the means of transport, in order to prevent the worker’s fatigue and the employer’s loss from the said fatigue”; vide also Naguib and Bakr, p. 104 (who quote (an unnumbered) Cairo Court of Arbitration decision of 9 January 1955, in support); Habeeb, p. 363; and Faheem, p. 62.
Vide Murad, p. 328; Badawi, K. M., p. 188; Butros and Rajab, p. 290; Badawi, Z., Vol. 2, p. 173; and Rashed and Hashem, p. 101.
However, it is believed that the section should be amended, so as to expressly oblige the employer to bear the transport expenses, because the worker is expected in any case, to bear the cost of transport, from his residence to the place from which he can take the employer’s transport, on the one hand, and because the worker sacrifies his own time in transportation, on the other hand. This belief is supported by the Explanatory Note to the Labour Code (vide footnote 17, supra) which adds: “at least from the place where the ordinary means of transport stop, to the place of work.”
Vide Cairo Court of Arbitration in dispute No. 72 of 1953 (in Naguib and Bakr, p. 104); vide also Rashed and Hashem, p. 102; and Butros and Rajab, p. 290.
This is particularly regrettable in Sudan, because of the long distances involved.
Vide Habeeb, p. 12; and Sabbour, p. 169. For Sudan refer to Smith, pp. 69 and 117; and Macdonell, pp. 7 and 8.
Vide El-Areef, p. 201, who says that “the payment of wages without the provision of work, is not sufficient, because the worker may sometimes feel that he is undignified by what looks like charity or lack of confidence, and because the worker may thereby be deprived of experience, and thus be prejudiced in his chances of getting better employment with other employers”; vide also Zaki, p. 254.
Refer to the definition of the contract, in Section I of Chapter I, supra. Zaki, p. 254, expressly submits to the same effect, subject to what is mentioned in the preceding footnote; Habeeb, p. 32, impliedly suggests the same opinion.
Batt, p. 169, who quotes Turner v. Sawdon & Co. (1901), 2 K.B., 653, as the authority for this statement of the law in England; again, “the mere relation of employer and employee does not cast upon the employer the duty of providing work” (Ibid., p. 43); this case is also an authority for the rejection of the experience issue raised by the plaintiff (vide footnote 22, supra); vide Cooper, pp. 58-59; Smith, pp. 45-46 and p. 47, where he says: “The word ‘employ’ is capable of more than one meaning, but the use of this word in a contract of hiring, does not necessarily bind the master to find work for the servant during the continuance of the contract”; vide the words of Lawrence, L. J., in similar terms, in Marbe V.G. Edwardes (Daily’s Theatre), (1928), I, K.B., 269; and vide also Macdonell, p. 130; and Halsbury, Vol. 25, p. 458.
Vide El-Areef, p. 201; and Badawi, Z., Vol. 1, p. 52; vide also Zaki, p. 254; and vide to the same effect the implication from section 1639 Q (5) of the Netherlands Civil Code.
Cf. Smith, pp. 48 and 50, with Batt, p. 169; and vide Cooper, p. 58; Barwell and Kar, p. 123; and Halsbury, Vol. 25, pp. 467-8.
Samuels, p. 39, who quotes as an authority, Nathan v. Gulkoff & Levy, Ltd. (1933) Ch., 809. This is also the law in the U.A.R.
Vide Turner v. Goldsmith (1891), I. Q.B., 544; and cf. Turner v. Sawdon &Co. (1901), 2 K.B., 653; vide also Cooper, pp. 170 and 42-43; Smith, pp. 45-6; and Samuels, p. 18.
Vide Bunning v. Lyric Theatre, Ltd., 71 L.T. 396 (a case of a musical director of an orchestra, who was not permitted to conduct the orchestra, though his salary was paid); and Clayton v. Waller (1830), A.C. 209 (loss of a theatrical role, though salary was paid); vide also Cooper, pp. 58-9; Batt, pp. 43 and 170; and Smith, p. 48.
Section 909(a) of the Iraqi Civil Code provides in identical terms; the German, Swiss and Polish Laws contain similar provisions (vide El-Areef, p. 190); sections 571 and 572 of the Majallah provide in similar terms.
Section 697 of the U.A.R. Civil Code is quoted in Section I, F, of Chapter VI, infra.
Refer to Section IV of Chapter II, supra, for a discussion on the vicarious performance and novation of the contract.
Vide Sabbour, p. 275; Murad, p. 356; and El-Areef, p. 190; vide also I.L.R., Vol. 32, 1936, p. 61; and vide Habeeb, p. 308, re delegation.
Section 12 of the Sudan Ordinance is quoted in Section I, F and G, of Chapter VI, infra.
“A contract of service, unless there be specific agreement to the contrary, is per-formable only by the parties thereto, so that neither party can assign the contract”: Cooper, p. 46.
“A servant cannot perform his duties by deputy unless the contract so provides, for the essence of the contract is personal service by the servant” (Batt, p. 154); vide section 40 of the Indian Contract Act; and vide the discussion on Badlis, which in India, is another word for Helpers, in Barwell and Kar, p. 63.
Section 676 of the U.A.R. Civil Code is fully quoted in Section III of Chapter I, supra. Refer to category (vii), of certain persons discussed in the said Section. Vide also Cairo Court of Appeal in appeal No. 655 of 1960 (in Habeeb, p. 191).
Vide, however, Cairo District Court in case No. 16 of 1945 (in Rashed and Hashem, p. 269).
Sabbour, p. 276, who quotes a Cairo Court of Appeal decision (unnumbered) taken on 27 April 1952, as an authority for the said statement of the law; vide also a decision of the same Court in appeal No. 300 of 1955 (in Butros and Rajab, p. 409), in support of the same statement; and vide Zaki, p. 243; El-Areef, p. 193; and Badawi, Z., Vol. 1, p. 59; and I.L.R., Vol. 32, 1936, p. 65. the problem of the occupation of the worker’s spare time has caught the attention of the I.L.O., which has issued Recommendation No. 21 of 1924, concerning the Development of Facilities for the Utilization of Workers’ Spare Time, whose main gist is the improvement of the worker’s conditions of service, so as to “prevent workers from having recourse to additional paid work.”
Halsbury, Vol. 25, p. 448; vide also Lord Russell of Killowen, in Jones v. Scullard (1898) 2 Q.B., 565. Refer to category (vii), in Section III of Chapter I, supra, concerning commercial representatives etc.
Batt, pp. 159-160; vide also the relevant words of Lord Greene, M.R., in Hivac Ltd. v. Park Royal Scientific Instruments Ltd. (1946), Ch. 169.
Halsbury, Vol. 25, p. 461; vide also Smith, p. 66; and Batt, pp. 98-99.
Halsbury, Vol. 25, p. 461.
Barwell and Kar, p. 127 wide also Lloyd v. Midland Railway Co. (1914), 30T.L.R., 247.
Section 909(1, a) of the Iraqi Civil Code provides in identical terms; vide El-Areef, p. 191; and Murad, p. 356.
A lower degree of care is usually deemed to be permitted, when an employer knowingly accepts an unexperienced worker.
vide Liste v. Romford Ice and Cold Storage Co., Ltd. (1957) A.C. 555, where Viscount Simonds said it is an implied term in the contract, that the workman should “perform his duties with proper care”; vide also Diamond, p. 104; Cheshire and Fifoot, p. 142; Barwell and Kar, p. 367; and Macdonell, p. 209.
Section 909 (1, a) of the Iraqi Civil Code provides in identical terms; vide also similar provisions in section 608 of the Majallah.
Vide Cairo Court of Cassation in case No. 216 of 1958 (in El-Hawwari, p. 245); vide also El-Areef, p. 198; Murad, pp. 357-8; Zaki, p. 242; and Habeeb, pp. 309-310. Vide Section I of Chapter I, supra, for the element of control in the contract.
Vide similar provisions in section 13(a) of the Bahraini Labour Code. Section 10 of the Sudan Ordinance is fully quoted and discussed in Section II of Chapter VI, infra.
In this respect, the Sudan provision is also similar to the English Common Law: vide Diamond, p. 102; Batt, pp. 61, 154 and 155; Cooper, pp. 73-74; Smith, p. 81; Mac-donell, p. 205; Halsbury, Vol. 25, p. 462; and Barwell and Kar, pp. 77-78 and 368.
Vide Diamond, p. 102; Batt, p. 61; Cooper, pp. 73-74; Macdonell, p. 205; and Barwell and Kar, p. 77. This rule in England, is strictly limited to the safety of the worker himself, and is not extended to an immediate danger to the life of a close relative, even if he be one of the parents of the worker; vide in this respect, the surprising decision in Turner v. Mason (1845), 14, M. & W. 112, where a housemaid was held to be rightly dismissed, after she absented herself for one day to see her dying mother, in defiance of her employer’s refusal to let her go. It is submitted that such a dismissal will be held unjustifiable in the U.A.R. It is also submitted that the application of ‘justice, equity and good conscience’ in Sudan, should preclude the holding of the said dismissal as rightful. Refer to Section IV of Chapter V, infra, for the emergency leave prescribed in some countries, purposely to preclude the happening of the awkward situation which happened in Turner’s case.
Habeeb, p. 310; vide also Murad, p. 358; El-Areef, pp. 197-198; Rashed and Hashem p. 260; and El-Fakahani, Vol. II, Book I, p. 114.
Section 147 of the U. A.R. Civil Code provides that “the contract is the ‘law’ of the parties, and may not be remmciated or amended without the consent of both parties.” the same principle applies in Sudan: vide Barwell and Kar, p. 51, where they say that “the terms of the contract can not be varied unilaterally.”
Zaki, pp. 329-330; and Habeeb, p. 421, maintain that the breach results only in limited contracts. In unlimited contracts, they maintain that the violating orders amount to a notice of termination, because either party has a right to terminate such contracts by notice. Cairo Court of Cassation in case No. 1976 of 1959 (in El-Hawwari, p. 161), supports their view. It is submitted, however, that they are wrong, simply because the notice of termination, prescribed by section 72 of the U. A.R. Labour Code, should be in writing (vide Chapter VI, Section II, A, 2, infra).
The intent in this case, is “to temporarily or permanently perform.”
Of all the Labour Codes of the Arab countries, only the Libyan Labour Code (section 14(d)), and the Saudi Regulations (section 10(3 and 4)), contain provisions similar to the U.A.R. provisions.
Cairo Court of Cassation in case No. 1976 of 1959 (in El-Hawwari, p. 161); vide also Cairo Court of Appeal in appeal No. 444 of 1954 (in Habeeb, p. 422). Rashed and Hashem, p. 69; and Faheem, p. 60, say that an essential change occurs, when the worker is transferred from mental to manual work; vide I.L.R., Vol. 32, p. 62.
Vide Faheem, p. 60.
Section 921(2) of the Iraqi Civil Code provides in identical terms. the burden of proof lies on the worker: Cairo Court of Appeal in appeal No. 35 of 1955 (in El-Fakahani, Vol. II, Book I, p. 82).
Vide section 675(1) of the U.A.R. Civil Code, quoted in footnote 42 to the Introduction, supra; vide also Badawi, K. M., pp. 197 and 201. However, Butros and Rajab, p. 280, deny the apparent conflict between the two sections.
Vide Alexandria Court of Appeal in appeal No. 321 of 1956 (in Habeeb, p. 423); vide also El-Areef, p. 203, who adds that the converse case of promotion of workers also falls within the employer’s managerial powers.
Vide El-Fakahani, 1959 Supplement, p. 153.
Section 56 of the U.A.R. Labour Code provides that “the employer shall not without the worker’s written consent transfer him from the monthly-paid to the daily or weekly-paid category of workers or to that paid on a piece-work basisor by the hour, and the worker when he so consents shall retain all the rights he acquired by virtue of sections 58, 61, 71, 72, 73, 78 and 81, during the period he was paid by the month.” Zaki, pp. 330-331; and Habeeb, p. 621, correctly point out that the said enumeration of the seven sections in section 56, is surprising, because monthly-paid and other workers are, with the exception of section 72 (concerning the length of the notice of termination of the contract: vide Section II, A, 2, of Chapter VI, infra), equally treated under the other six sections, in respect of the annual leave (sections 58 and 61: vide Section I of Chapter V, infra), the termination gratuity (sections 73, 71 and 78: vide Chapters VII and VI, infra), and the authorised absence on sickness (section 81: vide Section I, A, of Chapter VI, infra). Section 10(2) of the Saudi Regulations provides in similar terms. Section 30(2) of the Kuwaiti Labour Code also provides similarly, except that there is no provision concerning the saving of acquired rights.
Vide El-Fakahani, 1959 Supplement, p. 149; Zaki, p. 330, correctly points out, however, that the requirement of the worker’s consent to be in writing, is a departure from the general rules of the law. Though the same general rule should apply to the reverse case of a transfer of a worker, from piece-rate, hourly, daily or weekly pay, to monthly pay, and to the so-called parallel transfer from piece-rate to daily pay and vice versa, the Courts have ruled otherwise, and writers have rallied in support, on the grounds that such transfers are usually dictated by the interests of the work, and are usually in the interests of the worker. They also agree that any transfer should not involve a reduction of the worker’s wages: vide Cairo Court of Appeal in the appeal on dispute No. 25 of 1959 (in El-Hawwari, p. 153); Alexandria Court of Arbitration in disputes 9 and 10 of 1953 (in Habeeb, p. 427); and Cairo Court of Appeal in appeal No. 1244 of 1955 (in El-Fakahani, Vol. II, Book I, p. 111)-These three cases illustrate the said judicial view on the transfer from a daily to a monthly pay, from piece-rate to daily pay and vice versa, respectively; vide also Habeeb, pp. 424-427; Rashed and Hashem, p. 67; Naguib and Bakr, pp. 90-92; Faheem, pp. 58 and 60; Badawi, Z., Vol. 1, pp. 153-154; Butros and Rajab, pp. 275-277; and Badawi, K.M., pp. 150-151 and 195.
Neither is there any such statutory provision in Aden or Bahrain. However, vide the second item in the third Schedule to the Bahraini Labour Code, which lists among the disputes on which parties may be required to enter arbitration, “any dispute relating to the assignment of an employed person to work which he is not normally required to perform or which is not directly related to his normal work.”
Macdonell, p. 205; vide also Barwell and Kar, pp. 50-51; and Clark, p. 229. 69 Refer to Section II, B, of Chapter VI, infra.
The Industrial Court in England, ruled in L.M.S. Railway v. National Union of Railwaymen (award No. 1602 on 13 November 1934), that the employer is entitled to transfer the workers from piece-work to time-rate, as long as the work remains the same (vide I.S.D.L., Vol. 10, 1936, p. 30).
Section 35 of the Sudan Ordinance is quoted in Section V of Chapter II, supra.
For the U. A.R., vide Abdin District Court in case No. 3718 of 1950 (in Badawi, K.M., p. 202); and Cairo Labour Court in case No. 989 of 1960 (in El-Hawwari, p. 149); vide also El-Áreef, p. 202; Habeeb, pp. 423-424 (who also quotes Cairo Court of Appeal in appeal No. 35 of 1955, as authority for the correct proposition, that the employer’s right of transferring the worker to another place, is also subject to section 696(2) of the U. A.R. Civil Code); Badawi, K. M., pp. 198-199; Rashed and Hashem, pp. 69-70; Butros and Rajab, pp. 279-280; El-Fakahani, 1959 Supplement, pp. 154-155; and Faheem, pp. 59-60. Vide also the two French decisions in Weick, v. Société genérale et Banque française de Syrie (1932), Gaz. du Palais, 1932, 140, and Lamiot v. Poiret (1927), Gaz. du Palais, 1927, 1, 457, (both in I.S.D.L., Vol. 8, 1934, p. 106, and Vol. 3, 1928, p. 96, respectively). For England and hence for Sudan, vide and compare the two cases of The Ottoman Bank v. Chakarian (1930) A.C. 277; and Bouzourou v. Ottoman Bank (1930) A.C. 271; vide also Diamond, p. 102; Cooper, p. 56; Barwell and Kar, p. 72, 77-78 and 341; and Batt, p. 89, who shows that the same rule applies, in the case of a transfer of the employer’s business itself to another place, thus involving a change of the worker’s place of work by necessity.
Vide the Cairo Labour Court in case No. 4534 (in El-Hawwari, p. 253). Section 909 (1, d) of the Iraqi Civil Code provides in the same terms, and adds that the worker is by law, a bailee of the said things; vide also section 609 of the Majallah.
Vide El-Areef, p. 196. Presumably, this means the contract of bailment.
Vide section 211 of the U.A.R. Civil Code; and vide Murad, p. 358.
Sections 44, 14(b), 69-70 and 10-14 of the Iraqi, Lebanese and Tunisian Labour Codes, respectively, and section 8 of the Saudi Regulations contain similar provisions. Vide section 76(3) of the U.A.R. Labour Code (in Section II, A, 4, of Chapter VI, infra). Vide also the I.L.O. Protection of Wages Convention No. 95 of 1949.
Vide El-Areef, p. 196; and Rashed and Hashem, pp. 62-63.
Vide sections 4, 5, 163 and 164 of the U.A.R. Civil Code.
Vide Murad, p. 359; El-Areef, p. 196; Rashed and Hashem, pp. 62-63; El-Fakahani, 1959 Supplement, p. 144; Badawi, Z., Vol. 1, p. 72; Naguib and Bakr, p. 87; Faheem, p. 48; and Badawi, K. M., p. 182.
Idem. Vide also Section II, A, 3, of Chapter VI, infra, for the employer’s power to dismiss the worker, for misrepresentation.
Vide similar provisions, in section 13(a) of the Bahraini Labour Code. Sections 18(c) and 21(1) of Ordinance 33 of 1945 in Aden, expressly provide in terms, similar to section 54 of the U.A.R. Vide Batt, p. 128, for a mention of the worker’s obligation to compensate the employer for damaged goods, similar to the obligation in the U. A.R.; and vide section 2 of the English Truck Act of 1896, to the same effect; vide also section 7 of the Indian Payment of Wages Act, No. IV of 1936.
Vide Batt, pp. 157-8; Cooper, p. 68; Smith, pp. 72-3; Macdonell, p. 209; and Barwell and Kar, p. 374.
Vide Batt, pp. 157-8: “Presumably the servant would be liable in an action for breach of contract for having failed to possess and apply that skill which by entering his engagement of service he contracted to possess and apply, unless the master knew of his servant’s lack of skill, when the master would have only himself to blame”; vide also Barwell and Kar, p. 366.
Section 909 (1, e) of the Iraqi Civil Code provides in identical terms.
Cairo Court of Appeal in appeal No. 401 of 1960 (in El-Hawwari, p. 255). Murad, p. 360, correctly points out that the faithful service of the worker also imposes on the agricultural worker, the duty not to disclose his employer’s secrets.
Vide Cairo Labour Court in case No. 5322 of 1959; and Cairo Court of Appeal in appeal No. 486 of 1960 (El-Hawwari, pp. 257 and 256, respectively); vide Butros and Rajab, p. 346; Zaki, pp. 242-243; Habeeb, pp. 312-313; El-Areef, pp. 193-195; Rashed and Hashem, pp. 268-271; and Badawi, Z., Vol. 1., p. 59; vide also I.L.R., Vol. 32, 136, p. 64.
Vide Helmore v. Smith (1886), 35 C.D. 449; vide also Batt, pp. 63-64, and p. 160, where he says: “How far a servant must observe silence in regard to his master’s affairs must presumably depend upon all the circumstances. No liability could attach for revealing the frauds or malpractices of his master, indeed he may be under a public duty to disclose these”; and vide East Anglican Railways Co. v. Lythgoe (1851) 20 L.J.C.P. 841; and Triplex Safety Glass Co. v. Scorah (1938) Ch. 211; vide also Diamond, p. 105; and Cooper, p. 40.
Vide Hivac Ltd. v. Park Royal Scientific Instruments, Ltd., (1946), Ch. 169; and Pearce V. Foster (1886), 17 Q.B.D. 536; vide also Batt, p. 156; Macdonell, p. 210; Diamond, pp. 65 and 78-80; Cooper, pp. 63-64 and 65; and Smith, p. 66.
Vide section 148 of the U.A.R. Civil Code. For Sudan vide Diamond, p. 105; Smith, p 71; and Macdonell, p. 209.
For the U.A.R., vide Cairo Court of Appeal in appeal No. 655 of 1960; and Alexandria Court of Cassation in case No. 126 of 1959 (both in El-Hawwari, pp. 240 and 241, respectively); and vide Murad, p. 359. For Sudan, vide Cunningham v. Fonblanque (1883), 6C & P 44 N.P., quoted by Barwell and Kar, p. 376, where they correctly add that “the conduct of the servant during his employment is alone material.” It is submitted that the same applies in the U.A.R.
For the U.A.R., vide Alexandria Court of Appeal in appeal No. 288 of 1957 (in Habeeb, p. 309); Cairo Court of Cassation in case No. 2158 (in El-Hawwari, p. 251); vide also El-Areef, p. 193; and vide the French case of Société Chaleur et Froid (1931), Gaz. du Palais, 1931, 2, 659, (in I.S.D.L., Vol. 7, 1933, p. 122). However, tips received by workers in cafés, restaurants and bars, are not such secret commissions, as it is customary to accept tips in the said places; section 684 of the U.A.R. Civil Code (vide Chapter IV, Section I, infra), provides for the partial or exclusive remunerative function of these tips. For Sudan, vide Boston Fishing Co. v. Ansell (1888) 39 C.D. 399; and Morison v. Thompson (1874) L.R. 9 Q.B. 48; vide also Diamond, pp. 108 and 110; Smith, pp. 71-72; Halsbury, Vol. 25, p. 462; Batt, pp. 64 and 158-160; Cooper, p. 68; and Barwell and Kar, pp. 81-82. However, “in many classes of service the receipt of tips is fully recognized by the employers, or it is so notorious a practice that they cannot complain of it. In many employments the fact that the servants will obtain tips regulates the wages they are paid”: Batt, p. 156; vide also Cooper, p. 69.
For the U.A.R., vide Cairo Court of Cassation in cases No. 672 of 1958, and No. 1339 of 1959 (both in El-Hawwari, pp. 255 and 248, respectively); Cairo Court of Appeal in appeal No. 1185 of 1960 (Ibidem, p. 260); vide also Murad, p. 360; El-Areef, pp. 193-194; Rashed and Hashem, p. 256; and Habeeb, p. 309. For Sudan, vide the Indian case of Middleton v. Playfair (1925) A.I.R. Cal. 87; and the English case of Lacy v. Osbaldiston (1837), 8 C. & P. 80, both quoted by Barwell and Kar, in pp. 77 and 373, respectively; vide also Batt, p. 63, and Macdonell, p. 213.
Gréve perlée, as it is called in France; vide El-Areef, p. 192; Habeeb, pp. 308-309; Butros and Rajab, p. 338. It is submitted that the same applies in Sudan.
Batt, p. 155-vide Bell v. Lever (1932) A.C. 161: In the course of his judgement, Lord Atkin said: “The servant owes a duty not to steal, but, having stolen, is there a superadded duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the well-established usage of mankind and would be to create obligations outside the normal contemplation of the parties concerned”; vide also Barwell and Kar, pp. 79 and 369.
Barwell and Kar, p. 376-vide Baster v. London and County Printing Works (1899) I.Q.B. 901.
Vide Swain v. West (Butchers) Ltd. (1936) 3 A.E.R. 261; vide also Batt, p. 155; Cooper, p. 37; and Barwell and Kar, pp. 372-373.
Vide Section II, B, of Chapter VI, infra.
Apart from the deduction of this obligation of the employer from section 148 of the Civil Code, the obligation can also be deduced from section 696(1) of the Code, which gives the worker a right to leave his employment, on account of ‘unjust treatment’ (vide Section II, A, 3, of Chapter VI, infra, and vide therein section 76(3 & 4) of the U. A.R. Labour Code); vide also El-Areef, pp. 200 and 203; and Habeeb, p. 317. For Sudan, vide Barwell and Kak, p. 77, who quote in support, the Indian case of Middleton v. Playfair (1925) A.I.R. Cal. 87: “The judgement went on to say that the master, by necessary implication had, under a contract of personal service, the duty of protection and of the exercise of gentleness and moderation in his bearing towards his servants.”
Vide Section I, F, of this Chapter, infra.
Vide the High Court of Appeal in two (unnumbered) appeals decided on 18 May 1950 and 11 February 1954 (El-Areef, p. 365); vide also Habeeb, p. 318; Zaki, p. 254; and Rashed and Hashem, p. 331; refer to Section II, B, of this Chapter, infra.
Vide sections 720-728 of the U.A.R. Civil Code.
Vide sections 163 and 174 of the U.A.R. Civil Code; El-Areef, pp. 203-206, submits similarly, and quotes some old French decisions in support-vide, however, the two French Decisions of Société d’apprêts et teintureries roannaises v. Vernisse (1933), Dalloz Hebdom., 1933, 553, and Société d’Electricité Ouest-Lumière v. Moulin (1931), Gaz. du Palais, 1931, 1, 134, (both in I.S.D.L., Vol. 9, 1935, p. 76, and Vol. 7, 1933, p. 124, respectively)-these two cases show the judicial trend in France, in favour of implying a contract of bailment from the employment relationship; vide also the German decision of 10 November 1961, reported in I.L.R., Vol. 87, 1963.
Vide Deyong v. Shenburn (1946) I A.E.R. 226; vide also Cheshire and Fifoot, p. 143. Barwell and Kar, p. 119, correctly submit that, “in instances where it is a term of a contract that the servant shall perform his services in a prescribed costume, there would be a duty in the master to provide a reasonably secure method of safe custody for such garments. This is not to say that the master thereby becomes either a bailee of such property or an insurer of them.” It is submitted that this would be the case in the U.A.R.
The Labour Office, within whose jurisdiction the place of work is situated, is designated as the competent authority, by Order No. 134 of 25 August 1959 (Al-Jaridat-ul-Rasmiyyatu No. 72 of 14 September 1959). the work rules must be in the Arabic language, by virtue of Law No. 62 of 1942. the limitation of the number of workers to fifteen (it was fifty under Law 317 of 1952), is because of the para-familial ties, between the employers and their workers when they are so few, and to the employer’s ability to issue his orders to the workers orally (vide Habeeb, p. 282; Badawi, Z., Vol. 1, p. 155; Butros and Rajab, p. 320; and Murad, p. 322). Sections 15, 50, 66 and 86 of the Saudi Regulations, and the Kuwaiti, Lebanese and Libyan Labour Codes, respectively, provide in terms similar to section 68 of the U.A.R. Labour Code, though with different limits of the number of workers; and so does section 22 of Book I of the French Labour Code. Section 43(1) of the Iraqi Labour Code obliges the employer to make work rules, irrespective of the number of his workers.
“The conditions of work in the modern factory, where a large number of workers are employed and must cooperate smoothly among themselves and under a common management, require that the work done in common shall be regulated by general provisions. This is the object of rules of employment”: I.L.R., Vol. 31, 1935, p. 856; vide also to the same effect, Zaki, pp. 228, 229 and 230; and Badawi, K. M., p. 247.
The High Court of Appeal in appeal No. 362 of 1957 (in El-Hawwari, p. 141). Vide also Zaki, p. 228; and Naguib and Bakr, p. 124.
Vide Cairo Court of Appeal in appeal No. 768 of 1958; and the appeal on dispute No. 100 of 1958, (both in El-Hawwari, pp. 144 and 142, respectively); vide also Zaki, pp. 230 and 231.
Vide Sabbour, p. 138; Butros and Rajab, pp. 319 and 312; and Naguib and Bakr, pp. 124-125; vide also the two French decisions of Société Faux et Lafon v. Padovani (1935), Sirey, 1935, 1, 45, and of the Cour de Cass., Ch. Civ., on 23 April 1929, Gaz. du Palais, 1930, 1, 853 (sub-note (b)), (both in I.S.D.L., Vol. 11, 1935–1936, p. 105 and Vol. 6, 1931, p. 84, respectively); cf. the decision on 28 June 1909, Dalloz Hebdom., 1910, 1, 21 (quoted by El-Areef, p. 215); and vide section 98 of the U.A.R. Civil Code; vide also I.L.R., Vol. 31, 1935, p. 858.
Vide Badawi, K. M., pp. 248-249; Habeeb, pp. 284-285; El-Areef, pp. 213 and 216; El-Fakahani, 1959 Supplement, p. 197; Rashed and Hashem, pp. 140 and 141; and Faheem, p. 69.
Section 682 of the U.A.R. Civil Code (quoted in Section II of Chapter IV, infra), which mentions the fixing of wages and the defining of obligations, in work rules, does not contradict with the said submission.
Vide footnote 104, supra, and Section I, E, of this Chapter, infra.
Zaki, p. 232, however, tries to conclude from the said limitation, a contractual nature for the work rules, if they are made voluntarily by an employer, who employs less than fifteen workers. It is submitted that he is wrong.
Vide C, (ii), of Section I of this Chapter, supra, re orders.
Vide the High Court of Appeal in appeals Nos. 283 and 362 of 1957 (both in Habeeb, p. 283); vide also Murad, pp. 323-4; and footnote 41 to Chapter IV, infra.
There are no provisions in Bahrain and Aden. However, India has a provision in the Industrial Employment (Standing Orders) Act, 1946-vide L.S., 1946 (Ind. 2).
Vide Batt, p. 51 (footnote 3); O. Kahn-Freund in Flanders and Clegg, p. 49; and Clark, p. 3.
Refer to Section I of Chapter I, supra. Vide also the Council of State’s opinion No. 13919/11/51 delivered on 30 December 1951, (in Rashed and Hashem, p. 142; and El-Areef, p. 199), to the same effect.
Zaki, p. 256; vide also Murad, p. 364; Badawi, K. M., pp. 29, 32 and 236; Rashed and Hashem, pp. 115 and 141-142; El-Fakahani, 1959 Supplement, pp. 184 and 198; Naguib and Bakr, p. III; and I.L.R., Vol. 32, 1936, p. 60.
The illogicality is apparent from the insistence on the employer’s power of control, in England and Sudan. “There can be no management in public or private enterprise without disciplinary power. the relation between employer and employee is one of subordination. the law, however, considers that the disciplinary power of the employer rests on the contract of employment. By entering into that contract, the employee submits to that power in so far as this is customary or expressly agreed”: O. Kahn-Freund, in Flanders and Clegg, p. 49-These words are a witness of a commendable attempt at the injection of Continental ideas in England.
This is by virtue of reference to the English Common Law: vide Cooper, p. 117: “The permissibility of the practice of imposing fines on workmen or shop assistants depends upon the making of a contract between the employer and employee”; vide also Samuels, p. 45; Batt, p. 127; and Macdonell, pp. 32 and 33. the position in Aden, is similar to Sudan-vide Section 19 of the Adenese Ordinance. In Bahrain, however, section 38 of the Labour Code grants the disciplinary power to the employer, and considers it as a ‘management right.’ the influence of the U.A.R. in this respect, is clear.
59 and 60 Vict., C. 44.
In India statutory limitations on the employer’s disciplinary powers, are contained in the Industrial Employment (Standing Orders) Act of 1946 (vide L.S., 1946 Ind. 2), which provides for the making of disciplinary rules by the employer; and in the Payment of Wages Act No. IV 1936, which provides for disciplinary fines.
Batt, pp. 127-128, who quotes as authority, Squire v. Bayer & Co. (1901), 2 K.B. 299 (dancing during meal hours and raising dust injurious to machines); vide also Cooper, p 118, who adds that “the most usual offence for which a fine is levied, is for lateness in arriving at the workshop or factory.”
Halsbury, Vol. 25, p. 480.
What is mentioned in footnote 104 to this Chapter, supra, re the competent authority, the limitation of the number of workers to fifteen and the language (vide also section 8 of Order 147 of 1959, which provides that disciplinary rules should be written in a form understandable to the workers), equally applies to disciplinary rules. Sections 43(1), 51 & 52, 72, 25(2), 66 & 67 and 25(3), of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese and Libyan Labour Codes, respectively, and section 15 of the Saudi Regulations, prescribe an obligation on the employer to make disciplinary rules, and so does section 22 of Book I of the French Labour Code.
Murad, p. 365; and Rashed and Hashem, pp. 116 and 140, are of the same opinion.
Murad, p. 366, maintains that the competent authority’s non-objection amounts to a refusal, without reasoning.
El-Fakahani, 1959 Supplement, p. 198; vide also Rashed and Hashem, p. 145; Butros and Rajab, p. 324; Habeeb, pp. 321-2; and Naguib and Bakr, p. 127.
Vide Cairo Court of Arbitration in dispute No. 265 of 1953, (in Habeeb, p. 323); and the Council of State’s opinion quoted in footnote 117, supra. the reason for the said decision and opinion, is that the power of discipline belongs to the employer. It is submitted that this reason precludes any right for the workers to request the amendment of the disciplinary rules-this is contrary to what Murad, p. 366; Butros and Rajab, p. 325; and Faheem, p. 70, maintain. But this does not mean that any rules or amendment of the rules are binding on the worker, if they violate the provisions of the law, for therein lies the worker’s guarantee.
Cf. sections 43(3), 52, 72, 25(2), 68 & 70, 25(3), of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese and Libyan Labour Codes, respectively; cf. also section 22 of Book I of the French Labour Code (vide Zaki, p. 259); vide the Labour Survey of North Africa, for the position in Morocco, Algeria and Tunisia-France and the three North African countries do not permit the use of a fine as a penalty, except for the infraction of safety rules.
Section 6 of the Order prohibits the disciplinary punishment of the worker, “for anything he commits outside the place of work, unless it concerns the work, the employer or his authorised representative, without prejudice to the provisions of section 76 of the Labour Code.” Section 11 of the Order provides that a disciplinary penalty “shall not be executed before the lapse of three days after the worker is informed of the penalty in writing except in the case of summary dismissal by virtue of section 76 of the Labour Code.”
Sections 76 and 77 are quoted in Section II, A, 3 and 4, of Chapter VI, infra.
Section 5 of the Order provides that “the worker shall not be suspended from work during the disciplinary investigation except in the circumstances specified in section 67 of the Labour Code.” the said section provides for the employer’s right to suspend the worker, for the commission of certain criminal offences, while they are being investigated by the authorities (refer for the section to Section I, C, of Chapter VI, infra). It is clear that the reference to section 67, does not make the suspension thereunder a disciplinary suspension. So the reference to section 76 of the Labour Code, in sections 6 and 11 of Order 147, does not necessarily render the summary dismissal thereunder, a disciplinary dismissal either.
Vide the judicial decisions in El-Hawwari, pp. 124-150, 153, 176-183 and 261. Vide also El-Areef, p. 512 (refer to Faheem, p. 97)-vide, however, pp. 393-394 and footnote 1 to page 395; El-Fakahani, Vol. III, Book I, pp. 156-158, and the 1959 Supplement, pp. 192 and 194; Rashed and Hashem, p. 126-vide, however, pp. 221 and 244, where they impliedly slip into the contrary view unwittingly; Butros and Rajab, pp. 351, 352 and 367-vide, however, pp. 372 and 423; Badawi, K. M., pp. 89 and 249-vide, however, pp. 246 and 248; Sabbour, pp. 309-12; and Murad, p. 368.
Vide the High Court of Appeal in appeal No. 131 of 1956 (in Zaki, p. 365); and the judicial decisions in El-Hawwari, pp. 150-153 and 261. Vide also Zaki, pp. 262-3 and 364; Habeeb, pp. 331-333; Badawi, Z., Vol. I, p. 95; and footnote 127 and the related text in this Chapter, supra. Habeeb, p. 344, who quotes the High Court of Appeal in appeal No. 202 of 1957, correctly adds that the employer’s dismissal of the worker, by virtue of his powers under the said section 76, does not preclude him from making the compensatory deduction from the worker’s wages by virtue of section 54 of the Labour Code (vide the section quoted in Section III of Chapter IV, infra, and mentioned in Section I, C, of this Chapter, supra). Presumably, he cannot do this, by virtue of section 2 of Order 147 of 1959 (to be presently mentioned), if the summary dismissal under section 76, is a disciplinary dismissal.
Vide sections 5 and 4 of Order 147 of 1959, which provide for a fair trial and execution, respectively.
This is one of the grounds of summary dismissal, by virtue of section 76(5) of the Labour Code-vide Section II, A, 4, of Chapter VI, infra.
The High Court of Appeal in (an unnumbered) decision taken on 22 November 1956 (vide Naguib and Bakr, p. 168).
Zaki, p. 263; Habeeb, p. 330; and Faheem, p. 7, also hold the same view.
Vide sections 74 and 75 in Section II, B, of Chapter VI, infra.
Vide Butros and Rajab, p. 352-vide, however, p. 355; Habeeb, p. 329; Naguib and Bakr, p. 113; and Faheem, p. 96. Though El-Areef, p. 395; and Rashed and Hashem, pp. 122, 125 and 126, agree that the reduction of wages cannot be used as a disciplinary penalty, they maintain that the lowering of the worker’s position can-Refer to section 696(2) of the U.A.R. Civil Code, and section 56 of the Labour Code, in this Chapter supra.
Vide section 54 quoted in Section I, C, of this Chapter, supra. Vide Zaki, p. 265; Habeeb, p. 319; Rashed and Hashem, p. 120; vide, however, Butros and Rajab, pp. 356-357.
Zaki, pp. 257-8; and Habeeb, p. 326, however, maintain that a warning can be served orally. It is submitted that they are wrong, because the section is clear.
Butros and Rajab, p. 359, advocate the inclusion of the weekly or other rest-days, because they maintain that the purpose of suspension is to remove the worker from work.
Faheem, p. 93, maintains that the contract is temporarily suspended during suspension, so the worker is legally free to take other work. Rashed and Hashem, p. 125, maintain that the said work will do away with the purpose of the penalty altogether.
Cf. the some what similar provisions in sections 45, 25 (2), 71 & 73 and 25 (3), of the Iraqi, Jordanian, Lebanese and Libyan Labour Codes, respectively. the Kuwaiti Labour Code and the Saudi Regulations do not provide for the disposition of fines.
Accordingly, the Minister of Labour issued his Order No. 58 of 1960. Vide and cf. the provisions concerning the medical treatment, in sections 913(1, a) and 129 (together with Order 13 of 1958 issued thereunder), of the Iraqi Civil and Labour Codes, respectively, and in sections 32, 12-6 and 28, of the Jordanian, Lebanese (vide also Decree No. 6341 of 24 October 1951), and the Libyan Labour Codes, respectively, and section 15(3) of the Saudi Regulations.
Vide section 12 of Order 58 of 1950, which expressly provides to the same effect.
Vide the High Court of Appeal in appeal No. 269 of 1959 (in El-Hawwari, p. 156); vide also section 8 of Order 58 of 1960.
Murad, p. 336; Zaki, p. 297; Habeeb, p. 373; Rashed and Hashem, pp. 108-109; Naguib and Bakr, p. 108; and Faheem, p. 66, all favour the extension of the obligation to all kinds of sickness, whatever is the cause or degree of the sickness. This includes venereal diseases, and long-term sickness like diabetes. Butros and Rajab, pp. 297-298, believe otherwise.
El-Fakahani, 1959 Supplement, p. 182; Habeeb, p. 375 (who quotes the Council of State’s opinion delivered on 18 May 1954, in support); Rashed and Hashem, p. 66; and Badawi, K. M., p. 230, all agree that the obligation does not extend thereto.
Habeeb, p. 375, maintains that the obligation in these two cases, depends on the nature of the sickness; and he quotes the Council of State’s opinion (mentioned in the preceding footnote), in support.
Any other social and humanitarian justification of the obligation, belongs to the field of Social Security-vide in this respect, section 8 of Order 58 of 1960, and Law No. 92 of 1959, re Social Security; vide, however, the Council of State’s (undated) opinion (in Naguib and Bakr, p. 109), which says that “the basis of this obligation is the moral and legal obligation of the employer to provide full medical treatment for his workers, if his capabilities have reached a certain enabling standard”; and cf. this with another opinion of the Council, dated 23 March 1953 (in Rashed and Hashem, p. III), which expressly says, that the basis of the obligation is the employer’s financial ability.
Rashed and Hashem, p. 109, maintain otherwise, as to preventive treatment.
Vide Cairo Court of Cassation in case No. 1851 of 1954 (in Badawi, K. M., p. 233); and the same Court in case No. 832 of 1955 (in Habeeb, p. 374); section 7 of Order 58 of 1959, relieves the employer of the costs of any medicines not prescribed by his doctor.
Badawi, K. M., p. 231, submits to the same effect; and Habeeb, p. 379, agrees with him.
Vide section 163 of the U.A.R. Civil Code; vide El-Areef, p. 380; Rashed and Has-hem, p. 99; and El-Fakahani, 1959 Supplement, p. 356.
Sections 42-88 (Chapter II of Book II) of the Code. the Labour Code thus corrected the position under Law 317 of 1952, whose section 26 is the predecessor of section 108 of the Labour Code. on the other hand, the Explanatory Note to Law 317, states that the enactment of section 26 thereof, was needed until a Factory Law could be enacted.
This is how most of the writers interpret it: vide El-Fakahani, 1959 Supplement, p. 181; Rashed and Hashem, p. 107; Butros and Rajab, p. 295; and Faheem, p. 65.
Vide paragraph 4 in the Form of Written Contract of Service (contained in the Schedule to the Employers and Employed Persons Rules), for the specification of the employer’s obligation to provide medical treatment or food rations, if any.
Halsbury, Vol. 25, p. 466; vide also Diamond, p. 117; Cooper, p. 115; Samuels, p. 46; Smith, pp. 150-151; and Barwell and Kar, pp. 119 and 122. For the statutory obligations in England, vide Batt, pp. 136 and 143; and Smith, p. 152. At one time in England, authority existed (Scarman v. Castell (1795) I Esp. 270), for the proposition that the master was liable for the care of his servant “in sickness and in health.” But this was finally rejected in Wennall v. Adney (1802), B & P, 247.
Vide Cooper v. Philips (1831) 4 C. & P. 581; vide also Batt, pp. 167-168; and Cooper, p. 57.
O. Kahn-Freund, in Flanders and Clegg, p. 52. Again, “the development in the courts of the tort of negligence has also imposed duties of care both on masters and servants, and has provided a remedy for either if injury occurs as a result of the other’s negligence”: Cooper, p. 56; vide also Barwell and Kar, p. 83. Vide the two Sudanese decisions of Hamad El Nur v. Modern Aluminium Works (1958) HC—CS-603; and Ali El Hag Mansourv. El Hag Ahmed Abu Zeid and Mohamed Tewfik Hussein (1959) HC-CS-214, (both in the Sudan Law Journal and Reports, 1960, pp. 129 and 179, respectively). the Sudanese Workshops and Factories Ordinance of 31 December 1949, and the Workshops and Factories Regulations of 1 August 1952 (both in The Laws of Sudan, Vol. 8, Title XXII, Sub-Title 5), impose on the employer the obligations related to his tortious liability. In this respect, the Sudan is better off than the U.A.R., which is still to enact a Factory Law (vide footnote 158 to this Chapter, supra). Sections 37(a) and 89(g) of the Bahraini Labour Code also provide for such obligations. For Aden, vide section 8 (1, b, v) of the Adenese Ordinance.
The precarious position of the worker in Sudan, in this respect, is very clear.
This is the first provision in the U.A.R., prescribing housing for families.
The U.A.R. Labour Code was enacted in 1959, for both Egypt and Syria, of which the U.A.R. was then composed, vide Section II of the Introduction, supra.
For the housing obligation, vide and cf. sections 132(b) & 33, 47, 57(a), 25 (3, e) and 29(a), of the Iraqi, Kuwaiti, Qatari, Jordanian, and Libyan Labour codes, respectively, and sections 10(6) & 20(4) of the Saudi Regulations. For the food obligation, vide and cf. sections 129 (15), 57(c) ad 29(b), of the Iraqi, Qatari and Libyan Labour Codes, respectively, which are the only three of the above-mentioned Labour Codes, which contain some relevant provisions.
These areas were specified, as “the Red Sea, Sinae, West and South Muhafazat (Governorships), and places of work which are at least fifteen kilometers away from the borders of the nearest town or village.” An old war-time Order No. 469 of 28 February 1944, however, imposes an obligation to provide the lunch meal in every working day, to every worker (at not more than half of the costs, and provided that the worker should not be charged more than fifteen millemes), on those in Kena and Aswan Governorships, who employ fifty or more workers in commerce or industry, or those who own more than two hundred acres of agricultural land. Thus the Order does not make it a condition, that the place of work should be “far from inhabited areas.” This Order, which was also extended to the Red Sea Governorship, by Order 522 of 1944 (vide Badawi, K. M., p. 191), is still operative in Kena, Aswan and the Red Sea Governorships, together with the obligation under section 64 of the Labour Code: vide the High Court of Appeal in appeal No. 27 of 1959 (in El-Hawwari, p. 158); and Asyout Court of Arbitration in dispute No. 12 of 1954 (in Habeeb, p. 148); Sabbour, pp. 219-220; Butros and Rajab, pp. 292-294 (they compare and differentiate the obligations under Order 469 of 1944 and section 64 of the Labour Code); vide Also Zaki, pp. 166-167; but only El-Areef, p. 33, says that Order 469 of 1944 is no more effective, thus overlooking Order 102 of 1945, which saved it from the repeal of all war-time orders.
The “suitable housing” was described by the Explanatory Note to Law 317 of 1952 (whose section 27 is the predecessor of section 64 of the Labour Code), as housing “in which the health and sanitary requirements are satisfied.”
The only writer who advocates this view, is Zaki, p. 295. He maintains that, if the legislator intended that the worker should pay anything, he would have provided an upper ceiling, as he did in the case of food.
Cairo Court of Appeal in the appeal on dispute No. 30 of 1957 (in El-Hawwari, p. 160); El-Areef, p. 381; Rashed and Hashem, p. 102; and Faheem, p. 62, support this view.
The High Court of Appeal in appeal No. 362 of 1957 (in Habeeb, p. 365); and the Council of State’s opinion delivered on 5 July 1958 (Ibidem, p. 367); Murad, p. 333; Badawi, K. M., p. 188; Sabbour, p. 220; and Butros and Rajab, p. 291, support this view.
The Arabic text of section 64 is, in this respect, clearer than that of section 27 of Law 317 of 1952, which is its predecessor. This may be the reason of the view, which advocates the payment for housing, at not more than one third of the costs (vide footnote 171, supra).
The Council of State’s opinion (mentioned in footnote 172, supra), answers the question in the negative, because the employer’s housing obligation is mandatory. Faheem, p. 63, illogically adds that the worker can insist on having transportation, as an alternative to housing (vide footnote 15, supra).
Section 948 of the Draft Civil Code of 1948, provides to the same effect; vide also El-Areef, p. 165; Badawi, K. M., p. 188; Butros and Rajab, p. 291; Sabbour, p. 220; and Naguib and Bakr, p. 106. However, it is believed that a provision should be made, so as to give the worker a chance to stay on in the employer’s housing, in order that he may find other housing, especially when he is married and his family redises with him. on the other hand, the employer’s housing obligation could and should be replaced by joint Government-Employer housing schemes. the U.A.R. and Iraq have in this respect, achieved some progress. Vide Article III of the I.L.O. Recommendation No. 21 of 1924.
Vide the Council of State’s opinion delivered on 20 September 1954 (in Habeeb, p. 366); vide also Butros and Rajab, p. 292. This limitation is not logically consonant with the allotment of some housing to married workers.
Vide the Council of State’s opinion, mentioned in the preceding footnote.
Vide Asyout Arbitration Court in dispute No. 14 of 1954 (in El-Fakahani, Book I, Vol. I, p. 41); Zaki, pp. 184-185, maintains that it is not open for the parties to agree as above-mentioned, because the provision is mandatory, and he cites section 155(b) of the U.A.R. Labour Code, in support. This section expressly prohibits such agreement, in the case of mine and quarry workers. It is submitted that the non-inclusion of a similar express provision in section 64 of the Code, is sufficient ground to maintain the contrary view. the express provision in section 155(b) is understandable, because of the health protection relationship, between food and the peculiar nature of the work of mine and quarry workers.
Vide footnote 160 to this Chapter, supra. the position is the same in Bahrain and Aden. It is regrettable that the legislator has not yet interfered in Sudan, so as to impose some housing and food obligations, especially because housing is not easily secured by the workers, and the food costs are comparatively high.
Diamond, p. 116; vide also Cooper, p. 57; Batt, p. 167; Smith, p 149; and Hals-bury, Vol. 25, p. 466.
Diamond, p. 116.
Batt, p. 167, submits to the same effect in England.
Zaki, p. 244; vide also I.L.R., Vol. 83, 1961, p. 36: “Today, when independent inventors are tending to become steadily rarer and a growing majority of inventors are salaried employees in public or private service, the question is even of greater importance.” This problem has caught the attention of the I.L.O., over the last thirty years. the Advisory Committees on Professional Workers and Salaried Employees, discussed the problem, and adopted resolutions Nos. 62 G.B. 160 and 197, in 1929 and 1931, respectively, (vide the texts of these resolutions in pp. 243-244, of Vol. 2, of The International Labour Code, 1951, I.L.O., Geneva, 1952). Unfortunately, however, the matter was not followed up by the I.L.O., until “the Committee set up by the International Labour Conference at its 43rd session in 1959, to study the problems of non-manual workers called upon the I.L.O. to make the necessary studies, with a view to convening a committee of experts to consider the problems of salaried inventors.” Vide in this connection, the illuminating article called Employees’ Rights in Their Inventions-A Comparison of National Laws, by F. Newmeyer, (in I.L.R., Vol. 83, 1961, pp. 36-64), but this remains to be the only contribution so far made.
It is interesting to note that in France, there is no statutory regulation of the worker’s inventions, and that the insufficient regulation by collective agreements, is employed there for the purpose (Ibid., p. 38).
Vide identical provisions in section 912 of the Iraqi Civil Code; vide also similar provisions in section 343 of the Swiss Civil Code (I.L.R., Vol. 83, 1961, p. 49); cf. the somewhat similar provisions in sections 10 and 12 A of the Netherlands Patents Act of 1910, as amended up to 1957 (Ibidem, p. 42).
Vide similar provisions in section 23 of the Italian patent law of 1939 (Ibidem, p. 43). However, the employer’s proprietary rights in his worker’s inventions “are original and are not in any way assigned to him” (Idem); but this is not so in the U.A.R., as can be deduced from section 9 of Law 132 of 1949, to be quoted presently. the concept of “company inventions” does not exist, either in the U.A.R. or in Italy. This concept, which gives the right in the invention to the employer, when it is made by the cooperation of several workers and it is impossible to identify the inventors, exists in Denmark (Ibidem, p. 54).
Vide similar provisions in section 24 of the Italian patent law of 1939 (Ibid., p. 43).
This is by virtue of section 2 of the U. A.R. Civil Code.
Zaki, p. 245, correctly criticises the said section 7 of Law 132, because “the inventive power of the worker is the basic cause of the invention, and much more so than the chances afforded to him by his work in the establishment.”
Zaki, pp. 245-246, correctly points out that this contractual relinquishment by the worker, is not for a real return or to use the English term, not for a real consideration.
Vide Diamond, p. 107, who together with Batt, p. 161, quote Saxby v. Gloucester Wagon Co. (1883), Griffin’s Patent Cases, 1888, pp. 54 and 56, as authority for this statement of the law.
Vide Diamond, p. 107, who quotes Bloxam v. Elsee (1825), I C. & P. 558, and Allen v. Rawson (1845), 1 C.B. 551, as authorities for the two parts of this statement of the law, respectively.
Vide Cooper, p. 66, who quotes British Reinforced Concrete Engineering Co. v. Lind (1917), 86 L.J. (Ch.), 486 as authority; vide also British Celanese, Ltd. v. Moncrieff (1948), Ch. 564. This doctrine of good faith in relation to inventions, is not applicable in the U.A.R.
“If the servant makes an invention or discovery in the course of his employment, he is normally, by virtue of an implied term in his contract of service, a trustee of that invention or discovery for his employer”: Halsbury, Vol. 25, pp. 462-3; vide also Triplex Safety Glass Co. Ltd. v. Scorah (1938), 54, T.L.R. 90. By virtue of section 1 of the English Patents Act of 1907, only the “true and first inventor of an invention” could take out the patent, and he had under the said doctrine of good faith, to assign the patent to his employer. But by virtue of section 1(1) of the Patents Act of 1949, the patent can now be taken out by the employer himself, after the servant-inventor assigns to him the invention. Section 56 of this Act gives to the servant and the master the right to refer any dispute between them, to the Comptroller General of Patents for determination.
The obligation of either party to give a notice, when he wants to terminate the contract is discussed in Section II, A, 2, of Chapter VI, infra, and so is the worker’s right to time-off during the notice period, in order to look for another job. the worker’s rights in the arrears of the wages on the termination of his contract, and in the final leave and the termination gratuity, are discussed in Chapters IV, V and VII, respectively.
Vide Section I, A, of this Chapter, supra, for the commencing provisions of section 55; and vide there the meaning of the “place wherefrom he requested them to come.”
Vide the somewhat similar provisions, but without any provision for the interference of the administrative authorities, in sections 94 and 913(d), of the Iraqi Labour and Civil Codes, respectively, in section 23 of the Qatari Labour Code, and in section 10(1) of the Saudi Regulations-Transportation should be provided to the worker within 15, 15 and 28 days, after the termination of the contract, in Iraq, Qatar and Saudi Arabia, respectively. Kuwait, Jordan, Libya and Tunisia do not have any provisions on the subject; vide the Labour Survey of North Africa, p. 240, for the absence of any relevant provisions in Libya, Tunisia, Algeria and Morocco.
Vide Alexandria Court of Cassation in case No. 1098 of 1953 (in Habeeb, p. 362); vide also Badawi, K. M., p. 186; Sabbour, p. 218; and Burros and Rajab, p. 273.
Badawi, K. M., p. 185-6; and Sabbour, p. 218, are of the same opinion.
Vide also section 696(1) of the U.A.R. Civil Code (in Section II, B, of Chapter VI, infra), by virtue of which the worker is entitled to compensation, when he is compelled to leave the service by the employer’s conduct, though he is not actually dismissed by the employer.
Vide sections 72, 76, 77 and 78 in Section II, A, 3 & 4 of Chapter VI, infra, and section 81 in Section I, A, of the same chapter.
Vide Section III of Chapter II, supra, for the definition of a limited contract.
Sabbour, p. 217, gives the same answer-though for a wrong reason, it is submitted, as he misinterprets the words “after the cessation of the work,” in section 55 of the Code, to mean “the performance of the work”; Badawi, K. M., p. 184; Butros and Rajab, p. 271; and Habeeb, p. 361, also give an affirmative answer, but without reasoning. on the other hand, Badawi, Z., Vol. 1, p. 114, answers the question in the negative, because he maintains that no obligation can be imposed without express provision.
Badawi, K. M., p. 184, gives an affirmative answer, without reasoning.
All the writers mentioned in footnote 203, supra, give a negative answer which they deduce from the entitlement of the worker to transportation, when he justifiably terminates the contract for the reasons mentioned in section 78 of the Code (actually the reasons are listed in section 77 of the Code, and a reference only is made thereto in section 78-this, it is submitted, is bad drafting).
All the writers mentioned in footnote 203, supra, together with Murad, p. 329, give a negative answer, depending on the deduction mentioned in the preceding footnote.
These costs are fixed according to custom; vide Murad, p. 330; Badawi, K. M., p. 186; and Sabbour, p. 218, who are of the same opinion.
Habeeb, p. 361; and Sabbour, p. 218, submit to the same effect. Butros and Rajab, pp. 272-3, however, maintain that the worker has such a right, provided that he should claim reimbursement within the seven days. Faheem, p. 55, also maintains that the worker has the said right, provided that he can only exercise it, if the employer refuses to give him transportation, in “the day following his request.”
These are the Police Authorities: vide Butros and Rajab, p. 272; Badawi, Z., Vol. 1, p. 114; Naguib, and Bakr, p. 89; and Faheem, p. 55.
The legislator may as well substitute the burial costs for the transportation of the worker’s body, where the worker had already chosen to be buried near the place of work, or where his relatives otherwise so decide.
The section is quoted and discussed in Section I, F and G, of Chapter VI, infra; section 17(a) of the Bahraini Labour Code speaks in the same terms.
In Aden the position is otherwise, and is very similar to that in the U.A.R., including the pre-condition that the obligation is applicable, only if the worker has originally “been brought to the place of employment by the employer”: section 13 of the Aden Ordinance-vide also sections 14, 15, 16, 17 and 19 thereof, for the complete picture of the obligation. These provisions are inspired by Article 13 of the I.L.O. Convention 64 of 1939.
Batt, p. 168. However, in Sudan domestic servants are within certain conditions, entitled to return transportation to the place of engagement, even though they were not initially transported therefrom, at the employer’s expense (vide section 13(d) of the Domestic Servants Ordinance of 1955). It is somehow illogical to deny such right to other workers, and to leave them to the contract terms, as is clear from the Sudan Ordinance.
Batt, p. 169, who quotes Gordon v. Potter (1859), I. F. & F. 644, as authority for this proposition-he quotes French v. Brooks (1830), 6 Bing. 354, as a contrary authority. However, it is submitted that the latter case is not a case of wrongful dismissal, and was decided on the contract terms.
In England the much wider term of character is used. This includes, besides the certificate of service, any other testimonial which the employer may give to a person other than the worker, re the latter’s service. We are, however, only concerned with the certificate of service.
Vide footnote 100 to this Chapter, supra, and the relevant text, for the bona fide duty of the employer to give such certificate, even before it became a statutory duty. the bona fides of the employer also requires him to write the certificate in an acceptable form: vide El-Areef, pp. 366-7; Rashed and Hashem, p. 330; Naguib and Bakr, p. 196; and Badawi, Z., Vol. 1, p. 115. the certificate has, by virtue of Law 62 of 1942, to be written in the Arabic language. So it is submitted that El-Areef, p. 367, is wrong in adding “or any other language understood in Egypt.” Presumably, however, a translation into any other language is permitted, but it cannot be a substitute for the Arabic text-vide Rashed and Hashem, p. 330. Sections 16(3), 21 and 27, of the Jordanian, Libyan and Tunisian Labour Codes, respectively, and section 10(5) of the Saudi Regulations, contain provisions similar to those in section 86 of the U.A.R. Labour Code; and the same applies in Algeria and Morocco (vide the Labour Survey of North Africa, p. 240)-section 24 of the French Labour Code also provides to the same effect (vide I.L.R., Vol. 79, 1959, p. 633). Section 913(e) of the Iraqi Civil Code (copied from section 956 of the Draft Civil Code of 1948 in the U.A.R.), and sections 93, 61, and 22 of the Iraqi, Kuwaiti and Qatari Labour Codes, respectively, prescribe the granting of the certificate to the worker, without a request from him.
Section 43 of the U.A.R. Labour Code, provides that “the worker shall be given a receipt for the documents and certificates he deposits with the employer.” Provisions similar to those in subsection 2 of section 86 of the U.A.R. Labour Code, are contained in sections 913(f) of the Iraqi Civil Code (copied from section 956 of the Draft Civil Code of 1948 in the U.A.R.), and sections 61, 22, 16(3) and 21, of the Kuwaiti, Qatari, Jordanian and Libyan Labour Codes, respectively, and section 10(5) of the Saudi Regulations.
Vide Cairo Court of Cassation in case No. 1284 of 1954 (in Habeeb, p. 389); and the same Court in case No. 1467 of 1956 (in El-Hawwari, p. 388); vide also Murad, p. 409; El-Areef, p. 366; Faheem, p. 71; and Sabbour, p. 517. Badawi, K.M., p. 435; and Rashed and Hashem, p.327, correctly add that the denial of the certificate to the worker cannot be made a penalty in the Disciplinary Rules (vide Section I, E, of this Chapter, supra). the reasoning behind the view, concerning the irrelevance of the manner of termination of the contract or who terminates it, is the combatting of unemployment; vide the second case and all the writers mentioned above; and vide the I.L.O. Report VII (1) (Termination of Employment), 1961, p. 62, which says: “The grant to a dismissed worker of the right to receive from his employer a certificate specifying the dates of his engagement and termination is a further widespread method of facilitating re-employment”; vide also I.L.R., Vol. 32, 1936, p. 195.
Vide Alexandria Court of Cassation in case No. 171 of 1959 (in El-Hawwari, pp. 389-90); vide also Cairo Court of Appeal in appeal No. 580 of 1954 (in Badawi, K. M., p. 437), which decided that the damages are not any “periodical payments until the worker finally secures another work”; vide also the first case quoted in the preceding footnote. Section 24 of Book I of the French Labour Code, expressly prescribes the employer’s obligation to give the certificate, “on pain of damages” (Vide I.L.R., Vol. 79, p. 633).
The employer’s responsibilities resulting from his voluntary provision of such other certificate or testimonial, are governed by the rules of the law concerning defamation and deceit, much the same as is the case in England, and hence in Sudan.
Vide Cairo Court of Cassation in case No. 1240 of 1955 (in Habeeb, p. 389); and the same Court in case No. 1844 of 1957 (in Sabbour, p. 517); vide also the two cases quoted in the next coming footnote; vide El-Areef, p. 366; Murad, p. 409; Rashed and Hashem, p. 327; Butros and Rajab, p. 326; and Faheem, p. 72.
Vide all the writers mentioned in the preceding footnote, who add that it is on the worker to prove that he had made the request-El-Fakahani, 1959 Supplement, p. 332, however, illogically differs therefrom. Vide the Cairo Court of Appeal in the two appeals Nos. 987 and 1000 of 1960 (in El-Hawwari, p. 387), which decided that the requirement in section 86 is satisfied, if the worker makes his request in a statement of claim, which he lodges in the Court against the employer.
Badawi, K. M., p. 435; Murad, p. 410; Rashed and Hashem, p. 326; Habeeb, p. 389; and Faheem, p. 72-all correctly submit that the time-limit is one year, by virtue of the prescription provisions in section 698(1) of the U.A.R. Civil Code.
Murad, p. 410; Sabbour, p. 517; Rashed and Hashem, p. 327; and Faheem, p. 72, submit that the employer should carry out his obligation within a reasonable time.
Vide Cairo Court of Cassation in case No. 1116 of 1957 (in El-Hawwari, p. 391); vide also Rashed and Hashem, p. 327; and El-Areef, p. 366 (who quotes the French decision of 18 August 1934, Dalloz. Hebdom., 1934, pl. 557, as authority for the charging to the worker of the postage costs, if the employer mails the certificate to the worker’s residence)-vide in this connection, Mouclin v. Consomo (1934), Dalloz. Hebdom., 1934, p. 326, as authority for the lack of any obligation on the employer, to send the certificate to the worker (I.S.D.L., Vol. 10, 1936, p. 92).
El-Areef, p. 366; Badawi, Z., Vol. 1, p. 115; Rashed and Hashem, p. 327; Naguib and Bakr, p. 195; and Faheem, p. 72, all submit that the employer can request such a receipt, so that the worker should not deny receiving the certificate. It is submitted that the worker’s bona fides requires him to sign the said receipt.
The Cairo Labour Court in case No. 2150 of 1958 (in El-Hawwari, p. 390), held that a Court judgement in favour of the worker uttered after the termination of the contract, is a good substitution for the certificate of service, and so it is a relief for the employer from his obligation to give the certificate, if the judgement contains the obligatory items prescribed by section 86. It is submitted that the decision is wrong, because its effect deprives the worker of his right to request the inclusion of the other items specified in the section. Faheem, p. 74, criticises the decision, for the reason that the worker would be prejudiced in his chances of getting further employment, if he has to produce a court judgement against his ex-employer.
Vide Murad, p. 410; Zaki, p. 301; vide also Abdin District Court in case No. 1397, which ruled to the effect that “any comment on the worker’s competence will prejudice him in getting further employment, if it is unfavourable, and if unfavourable comment is disallowed without disallowing a favourable comment, a similar prejudice to the worker will result from the employer’s failure to make the favourable comment” (vide Habeeb, p. 391, footnote 1)-Butros and Rajab, p. 327, state that this reasoning is drawn from the French jurisprudence. Badawi, K. M., p. 436, submits what amounts to a criticism of the said decision and jurisprudence, on the ground that there is nothing to prevent the employer from giving to the worker another testimonial containing favourable comment; so presumably, he could do the same in the certificate of service. It is submitted that he is correct, provided that the worker agrees with the wording of the employer’s comment-vide in line with Badawi’s submission, the I.L.O. proposed recommendation No. 10, in para 37 of Report V(l) of 1962, entitled Termination of Employment at the Initiative of the Employer.
Vide section V of Chapter II, supra, re “compromise or disclaimer of the rights deriving from the contract of employment”; vide also Alexandria Labour Court in case No. 2014 of 1953 (in Rashed and Hashem, p. 329); and the second case quoted in footnote 218 to this Chapter, supra) and vide section 24 of Book I of the French Labour Code (I.L.R., Vol. 79, 1959, p. 633).
Vide of the same opinion, Murad, p. 409; Butros and Rajab, p. 328; Habeeb, p. 368; Sabbour, p. 517; and Faheem, p. 72. However, Rashed and Hashem, p. 330, submit to the contrary. It is submitted that they are wrong, because the statutory right of the worker in the certificate of service, should not with its function of a public character (viz. the combatting of unemployment), be subject to the right of lien.
Zaki, p. 301.
Nor is there any in Aden. However, section 22 of the Bahraini Labour Code contains provisions identical with the U.A.R. provisions. So the influence of the U.A.R. in this respect, is clear. In India every permanent employee is entitled to the certificate, on dismissal from service, by virtue of the Model Standing Orders, issued under the Industrial Employment (Standing Orders) Act of 1946, as modified up to 31 October 1954 (vide I.L.R., Vol. 80, 1959, pp. 451, 444 and 442).
Diamond, p. 118, who together with most other writers, quotes as an authority the case of Carrol v. Bird (1800), 3 Esp. 201, N.O.; vide also Cooper, p. 59; Batt, p. 172; Samuels, p. 19; Smith, p. 296; Macdonell, p. 185; and Halsbury, Vol. 25, pp. 470-1. Vide these writers for the other rule of the law, that the employer is not obliged either to answer questions from any other interested person, concerning the worker, whether during or after the termination of service. If the employer volunteers to answer the said questions, or to give a certificate to the servant, his liability therefor is mainly tortious and belongs to the field of deceit or defamation, which for the present study, are not our concern (vide footnotes 215 and 220, supra- for enlightenment on these topics); refer to Cooper, pp. 59 et seq.; Batt, pp. 173 et seq.; Smith pp. 296 et seq.; and Barwell and Kar, pp. 128 et seq. on the other hand, the employer, by giving a testimonial, whether to the servant himself or to the other interested parties, may bring himself within the mischief of the Servants’ Characters Act 1892 (32 Geo. III, Ch. 56), if he enters falsehoods in the testimonial.
Vide Wennhak v. Morgan (1888), 20 Q.B.D. 635; cf. the older case of Taylor v. Rowan (1835), 7 C. & P. 70, in which it was held that “no action lay against a master who had endorsed on the character of his employee his reasons for dismissing him”; vide also Cooper, p. 59; Batt, p. 179; Halsbury, Vol. 25, p. 471; and Barwell and Kar, p. 128.
Vide Batt, p. 173-footnote 1, for the employer’s obligation under the pain of a penalty by virtue of the Insurance Acts, to return to the servant his insurance cards; and he quotes the case of Price v. Webb (1913), 2 K.B. 367, as an authority that the employer is not liable for damages, if the neglects to return the secards-cf. this with the employer’s liability for damages in the U.A.R. (vide footnote 231, supra, and the relevant text).
Vide section 685(d) quoted in Section I, C, (iv), of this Chapter, suptra; and vide therein the wider meaning of secrets by virtue of section 76(7) of the Labour Code. It is submitted that the same applies here, because the workers’ obligation in both cases, emanates from the same provision.
Section 686 of the Civil Code provides: “If the work requested of the worker allows him to know the employer’s customers or his business secrets, the parties may agree that the worker shall not after the termination of the contract compete with the employer or take part in any undertaking competitive with him: Provided that the agreement shall be valid only if: (a) the worker be of full contracting age at the time of making the contract, (b) the restriction be limited in respect of the time, place and the nature of the work to what is necessary for the protection of the lawful interests of the employer. “The employer shall not be entitled to insist on the agreement if he without being justifed by the worker’s actions terminates the contract or refuses to renew it, or if his own actions justify the termination of the contract by the worker.” Vide similar provisions, in section 910 of the Iraqi Civil Code. Vide for the U.A.R. and Iraqi sections, the similar provisions in sections 356, 357 and 360 of the Swiss Code de Obligations-section 359 of this Code properly provides that “no prohibition to compete shall be valid unless the agreement is in writing” (vide I.L.R., Vol. 32, 1936, pp. 498-9); but neither the U.A.R. nor the Iraqi Civil Code contains similar provisions (vide the resolution adopted by the Advisory Committee on Professional Workers in May 1931, in The International Labour Code, Vol. II, pp. 245-6, to the same effect).
“The regulation is for the balancing, between the employer’s interests and the worker’s freedom of work”: Zaki, p. 248, who in p. 249, adds that, on the worker’s side, the reason for the regulation is “the protection of the worker after the termination of his contract, from a heavy restriction on his freedom, which does not have an adequate return, so that his covenant not to compete is not based on any return; and on the other hand, the preclusion of any scheming by the employer, who might briefly employ a worker whose competition he fears, in order to burden him with a covenant not to compete.” This writer speaks of the lack of the adequate return, and in one breath, identifies it with the lack of a return. It is submitted that the return for the covenant in the U.A.R., if any, is found in the employment itself, for otherwise, the legislator would have provided for a compensation for the worker, in section 686 of the Civil Code. Butros and Rajab, p.346, add that the “provisions of section 686(1) are a limitation on the right guaranteed for the worker by section 678(2), so the legislator did not leave this limitation without regulation” (vide section 678(2), quoted in Section III, a, (iv), of Chapter II, supra).
El-Areef, pp. 195-196, says: “In any case, the duty to preserve the secrets does not preclude the worker from benefitting therefrom, after the termination of the contract, so long as the secret is not a registered right like a patent right or a personal family secret,” and he speaks in similar terms in p.370. This observation is correct, although one can scarcely call a patent a secret.
Vide Section I of Chapter II, supra, re capacity.
Zaki, p. 248, correctly adds that these interests must not be imaginary. It is submitted that they also should not be unforeseen future interests.
Cairo Court of Appeal in (an unnumbered) appeal decided on 21 July 1930, (in Rashed and Hashem, p.272); vide Habeeb, p. 313; Zaki, p. 249; and Sabbour, p. 318; vide also the French case of Société Carbel v. Société Cr anion fils et Compagnie et Ragon (1936), Dalloz Hebdom., 1936, p. 380, (in I.S.D.L., Vol. 12, 1938, p. 86).
Vide Section II, B, of Chapter VI, infra, for the doctrine of justification of the termination of the contract by either party. Zaki, p. 249, criticises this provision by saying: “However, the deprivation of the employer of the right to benefit from the covenant, is not consonant with the principles of equity, if he is obliged to terminate the contract for urgent economic reasons.” Vide the French cases of Société lyonnaise des cafés Torredo v. Ramus (1936), Gaz. du Palais, 29-30 March 1936, and the Cour D’Appel de Rennes, O. & B. v. Mr. and Mrs. Ch. (1935), Gaz. du Palais, 1936, 1, note (a), 642 (both in I.S.D.L., Vol. 12, 1938, p. 87 and Vol. 11, 1937, p. 90, respectively)-and cf. the first mentioned case, with the extreme case of Société Frères v. Lapointe (1934), Dalloz Hebdom., 1934, 484, (in I.S.D.L., Vol. 10, 1936, p.87), where it was held that a three years’ covenant was binding on a probationary worker, even if his contract was terminated during the probationary period. Vide also the resolution adopted by the Advisory Committee on Salaried Employees, in April 1931 (in the International Labour Code, Vol. II, p.247).
Vide section 696(1) of the U. A.R. Civil Code (quoted in Section II, B, of Chapter VI, infra); and vide footnote 200, supra.
Section 687 provides: “If a penalty clause for the violation of the covenant not to compete is agreed upon and the amount of the penalty is exaggerated so as to oblige the worker to remain in the service of the employer for a period longer than the stipulated period the said clause together with the whole covenant shall be null and void.” It is submitted that the same is applicable, if the contract is for an unlimited period, and the penalty clause prejudices the worker’s right to terminate it by notice (as he is entitled to do so, by virtue of section 72 of the Labour Code), with the result that he is obliged to stay in the service of the employer, more than he chooses. This section replaces the relevant section of the Draft Civil Code of 1948, which reads: “If the covenant not to compete contains a penalty clause the worker may relieve himself of the covenant by paying the agreed penalty, unless it is ascertained from the provisions of the agreement that the parties intended the penalty to be a fair estimate of the compensation for the damage. “If the intention is otherwise the employer may claim a supplementary compensation for the damage over and above the agreed penalty, and he may in addition request the stoppage of the violation if his damaged interests and the worker’s violation justify such request.” Vide section 359 of the Swiss Code des Obligations, from which the said draft provision seems to have been inspired (vide IX.R., Vol. 32, 1936, p. 499).
Vide Section 224 of the U.A.R. Civil Code; vide also Badawi, K.M., p. 319; Zaki, p.250; Sabbour, p. 319; and Faheem, p. 78. Vide and cf. in this respect, the resolution adopted by the Advisory Committee on Professional Workers, in May 1931 (in the International Labour Code, Vol.11, p.247).
The rules of the English Common Law similarly apply, in Bahrain and Aden.
Eve, J., in Hepworth Manufacturing Co. v. Ryot (1920), 1 Ch. 1, at p. 33.
Vide for the history of this development: Smith, pp. 53-55; and Batt, pp. 97-98.
(1894) A.C. 535.
In that case, Lord Macnaghten said: “Restraints of trade and interference with individual liberty of action may be justifed by the special circumstances of a particular case. It is a sufficient justification and indeed the only justification, if the restriction is reasonable-reasonable, that is, in reference to the interests of the parties concerned and is reasonable in reference to the interest of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public.” Lord Herschell, in the same case said: “A covenant entered into by an employee must be valid when any covenant less wide would not adequately protect those interests in respect of which the employer is entitled to protection, namely, trade secrets and trade connections.” Vide Samuels, p. 20.
Batt, p. 102, and vide p. 105; vide also Diamond, p. 66. Other factors in deciding the reasonableness of the covenant, are the nature of the employer’s business, the practice or the usage of the business, the position held by the worker and the particular circumstances of the case: vide Batt, pp.106-10; and Cooper, pp. 41-3.
Diamond, pp.73-74; cf. this with the words of Batt, in pp. 109-110, which are in effect a criticism of the legal decisions including Nordenfelt’s case, in respect of public interest — he says: “... it is difficult to imagine cases where the public interest would suffer, if the restraining is reasonable having regard to the interests of the parties, and, indeed, there is no reported case where a covenant otherwise reasonable has been held unreasonable as against public interest; a restriction on the work of a scientific or literary genius, however, favourable to him as regards consideration, might conceivably be held against public interest, but such a case has not arisen and is not likely to arise”-these words can easily be pleaded, in defence of the lack of any mention of the public interest, in section 686 of the U.A.R. Civil Code.
Vide Attwood v. Lamont (1920), 3 K.B.; 571, this is the so-called blue pencil doctrine of severance; vide also Diamond, p. 76; Cooper, pp. 43 and 44; Smith, p. 56; Samuels, pp. 22 and 23; Batt, p. 113; Cheshire and Fifoot, pp.324 and 326-9; and Halsbury, Vol. 25, p. 460. It is submitted that the same applies in the U.A.R.
Vide Gravely V. Barnard (1874) 18 L.R. Eq. 518; and Morris v. Saxelby (1916) 1 A.C., 688; vide also Diamond, p. 68; Samuels, p. 20; Macdonell, p. 138; and Halsbury, Vol. 25, p. 460. Batt, p.l 10, says that “there is no direct modern authority where such restraint had been held invalid for the absence of consideration, nor is it easy to imagine how the point can arise, since by the very nature of the case the employment supplies the consideration”-vide footnote 238, for the position in the U.A.R. on the other hand, Batt (Idem) submits that “it is difficult, if not impossible, to see how a restriction in respect of which the consideration was inadequate could ever be rightly held to be unreasonable as regards the interests of the covenantor.” It is submitted that he is correct, in as far as all the circumstances of the case, including the said consideration of ‘employment,’ have to be considered, in order to determine the reasonableness of the covenant-vide footnote 252, supra.
Vide General Billposting Co. Ltd. v. A tkinson (1909) A.C., 118-(wrongful dismissal)-vide Section II, B, of Chapter VI, infra, for the definition of wrongful dismissal; Konski v. Peet (1951) 1 Ch. 530; and Measures Bros., Ltd. v. Measures (1910) 2 Ch. 248-(a receiver and manager appointed-resulting impossibility of performance-defendant relieved of covenant, even if he was given notice); vide also Batt, p. 119; Samuels, p.24; Diamond, p. 78; Cooper, p.48; Cheshire and Fifoot, p. 445; and Barwell and Kar, p. 398.
Vide Bromley v. Smith (1909) 2 K.B., 235; vide also Diamond, pp. 41 and 43; Batt, pp.98-99; Cooper, p.31; and Samuels, pp.8 and 23.
Samuels, p. 23, who quotes Jacoby v. Whitmore (1883), 49 L.T., 335, as an authority; vide also Diamond, pp.70-1; and Batt, p.63. Smith, p.63, says: “But such a covenant, on its true contruction, must not be merely a personal one so as to come within the rule as to the non-assignability of personal contracts.” It is submitted that, if the covenant should have consideration, and this consideration be no more than the employment itself, as we have seen above (vide footnote 255, supra), then the covenant should end with the passing of the business from the ex-employer to any other person and by whatever manner, because that other person did not employ the worker, and thus provided no consideration. It is submitted that the same should also apply in the U.A.R.
Vide in this respect, the resolution adopted by the Advisory Committee on Professional Workers in May 1931 (in the International Labour Code, Vol.11, p.247), which, it is believed, was adopted mainly by the influence of the Committee members, brought up under the influence of the English Common Law.
Vide Law v. Redditch Local Board (1892) 1 Q.B. 127; vide also Batt, p. 120; and Smith, p.65.
Batt, p. 119; vide also Smith, p.66.
Vide Cooper, pp. 64 and 65; Batt, p. 180; and Barwell and Kar, p. 79. This is equivalent to the duty of the worker in the U.A.R., under section 685(d) of the Civil Code.
Per Lord Shaw, in Morris v. Saxelby (1916) 1 A.C., 688; vide also Cooper, pp. 40-42 and 64; Smith, pp. 63 and 64; Batt, pp.100, 104, 107, 156-7, 179 and 181; Samuels, p. 21; Halsbury, Vol. 25, p. 465; and Barwell and Kar, pp. 80-81.
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Hashem, H.R. (1964). Rights and Obligations of the Parties. In: Arab Contract of Employment. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8836-4_4
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DOI: https://doi.org/10.1007/978-94-011-8836-4_4
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