the engagement will continue; and when the servant has recovered, the master will not be entitled to treat him as being no longer in his service, nor will he be able to make any deduction from the servant's wages in respect to the period during which he was laid up.
II. Where the Cause Arises Previously to the Engagement.
That a servant has concealed or failed to disclose some material fact with regard to his position or qualification for the situation will not justify his dismissal without notice, unless he acted fraudulently. If, therefore, a master discovers that his servant has acted dishonestly or been guilty of immorality in his previous situation, he cannot dismiss him without notice, unless the fact was fraudulently concealed by the servant at the time he was engaged.
Subsequent effect of previous misconduct.—The fact that the servant is suffering from an illness which is due to some misconduct before he entered the master's service will not disentitle him to wages for the period during which he is laid up, if he had no reason to suppose at the time he obtained the situation that such consequences would result.
Reasons which justify a servant in leaving without Notice.—Danger to life or violence to the person. Additional risks, i.e. risks other than those which the servant must be presumed to have undertaken. Improper food. Immoral employment, that is to say, the master or mistress is leading an immoral life. Infectious disease in the house.—Whether the existence of such a disease in the house is a sufficient reason has not been decided, but it has been said in one case that a servant would be justified in disobeying an order not to leave the house if, owing to an infectious disease raging in it, he was obliged to go out for the preservation of his life. The question appears to depend on the amount of risk attaching in each case to the particular services which the servant may be called upon to perform in connexion with the illness, be it infectious or contagious. A servant who is justified in leaving without notice will be entitled to wages for such services as he may have actually rendered, and may also claim damages as in the case of wrongful dismissal.
Damages for Breach of Contract or Wrongful Dismissal.—If the master or servant, as the case may be, commits a breach of the agreement he will be to an action for damages, but the actual performance of the contract cannot be specifically enforced. If the service is to commence at a future date, but before that time comes the master expresses his intention of not fulfilling the contract or renders its performance impossible, the servant may sue at once. Where a servant is dismissed without due cause or proper notice, he may either treat the contract of service as at an end and sue independently of it for the value of the services he has actually rendered, or he may, as is usually the case, treat the contract as still existing and claim damages for its non-fulfilment. It must be remembered that although a servant may have been wrongfully dismissed, it is not merely his moral but his legal duty to seek other employment at once. He is not entitled to sit still until the expiration of the period in respect to which he would, under ordinary circumstances, have received wages, and then attempt to make the master liable to the utmost amount.
Privileged communications.—A master is under no legal obligation to give .ant a character, but if he does he must only state that which he honestly believes to be true. Any statement so made, even if it refers to the servant's conduct after he left, is a privileged communication. If after giving his servant a good character, the master discovers circumstances which lead him to believe that the servant was not entitled to it, he will be justified in communicating with the new employer, and such communication, if made
- But no communication made by telegram or post card will be considered as privileged, even though it may have been made in good faith.