REMOVAL OF CONTRACTOR’S EMPLOYEES
16. The Contractor shall employ or cause to be employed1 in and about the execution of the Works2 and in the superintendence thereof3 only such persons as are careful skilled and experienced in their several trades and callings and the Engineer shall be at liberty to object to and require the Contractor to remove from the Works4 any person employed by the Contractor in or about the execution of the Works who in the opinion of the Engineer misconducts himself or is incompetent or negligent in the performance of his duties5,6 or fails to conform with any particular provisions with regard to safety which may be set out in the Specification or persists in any conduct which is prejudicial to safety or health7 and such persons shall not be again employed upon the Works without the permission of the Engineer.
1. “OR CAUSE TO BE EMPLOYED”. A clarification of the previous edition, to include sub-contractor’s employees. The change is not carried through in the reference later on in the clause to “any person employed by the Contractor”.
2. “IN AND ABOUT THE EXECUTION OF THE WORKS”. See p. 65, N. 2. But these words may more easily than “during the execution of the works” be interpreted to include work in the maintenance period.
3. “THE SUPERINTENDENCE THEREOF”. A clarification making clear that supervisors are included.
4. REMOVAL OF EMPLOYEES EMPLOYED AWAY FROM THE SITE. The inclusion of persons employed “about the execution of the Works” suggests that the engineer may order persons employed away from the site to be removed “from the Works”.
5. REMEDIES FOR WRONGFUL ORDER TO REMOVE EMPLOYEES. If the engineer without justification orders an employee to be removed, the contractor may disobey the order and contest forfeiture if the engineer acts under cl. 63. Alternatively he may claim damages, but apart from other difficulties (pp. 417–18) it may be difficult to prove tangible loss beyond the wages of a substitute (and that only if the contractor cannot make full use elsewhere of the services of the employee dismissed), however valuable the employee may be to the contractor’s organisation.
It is conceivable, but doubtful, that the contractor may have a remedy under cl. 13 for any resulting delay or disruption to the contractor’s arrangements—p. 75.
The man dismissed from the site (apart from any rights he may have against his employer, which are not relevant here) will have a right of action for defamation against the engineer, since the order implies that he has misconducted himself or been incompetent or negligent, if the engineer acted maliciously, i.e. out of spite or other ulterior motive, but not if the engineer was merely mistaken.
6. REMOVAL OF PARTNER, SUB-CONTRACTOR, DIRECTOR. The engineer may have power under this clause to order removal from the works of a partner in a contracting firm, or of a sub-contractor himself, although neither is a servant of the main contractor, if “employ” is to be read in the wide sense of “make use of”. Nominated sub-contractors are dealt with fully in ch. 6. A director whether or not an employee of a contracting company may also be removable under this clause, as may an independent consultant employed by the contractor in or about the execution of the works. k′
7. SAFETY. This specific reference to safety is new, and ties in with the new cl. 19.
The case of a workman who is careless only of his own safety is included.
If dismissal of a worker in the interests of safety causes a strike, the contractor may be entitled to an extension of time under cl. 44, given the irrational attitude of unions to justified safety measures.