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A Synthesis of the Mode of Termination of Contracts of Employment

Published online by Cambridge University Press:  16 January 2009

John McMullen
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The contract of employment is still the basic structure in individual employment law. There is, however, much literature the argument of which is that the contract of employment is in many ways an unsuitable legal framework to govern individual workplace relations. In particular, the resolution of individual employment disputes would not, one might realistically imagine, be best achieved by the application of rigid contractual principles derived frequently from the resolution of commercial and other unrelated problems. In this vein it has been stated by Winn L.J. that:

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The Cambridge Law Journal , Volume 41 , Issue 1 , April 1982 , pp. 110 - 141
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Copyright © Cambridge Law Journal and Contributors 1982

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References

1 See O. Kahn-Freund, “ A note on Status and Contract in British Labour Law ” (1965) 32 M.L.R. 635 and “ Blackstone's Neglected Child: The Contract of Employment“ (1977) 93 L.Q.R. 508. The procedural and normative effect of the collective agreement is best dealt with by Kahn-Freund in Labour and the Law (2nd ed.). The Employment Protection (Consolidation) Act 1978 is the statute which contains the bulk of individual employment rights, such as, importantly redundancy, unfair dismissal, the right to receive written particulars of employment and minimum periods of notice. These are applicable to employees working under a contract of employment (see s. 153 (1)). A good example of the paramountcy of the contractual framework is that a contract of employment tainted with illegality will cause a claim for unfair dismissal based on the termination of that contract to fail; Davidson v. Pillay [1979] I.R.L.R. 275.

2 E.g., Fox, Beyond Contract: Work, Power and Trust Relations; Rideout, “ The Contract of Employment” (1966) 19 Current Legal Problems 111; and for a critique of the conventional structure of labour law see Drake and Bercusson, The Employment Acts 1974–1980, pp. 4–7.

3 Marriott v. Oxford and District Co-operative Society Ltd. (No. 2) [1970] 1 Q.B. 186, 193G.

4 See Freedland, The Contract of Employment, pp. 292–300; Elias, “ Unravelling the Concept of Dismissal” (1978) 7 I.LJ. 16. In the courts, see in particular Denmark Productions Ltd. v. Boscobel Productions Ltd. [1969] 1 Q.B. 699; Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 1 W.L.R. 361; Thomas Marshall (.Exports) Ltd. v. Guinle [1979] Ch. 227 (Ch.D.); Gunton v. Richmond-upon-Thames London Borough Council [1980] I.C.R. 755 (C.A.).

5 See, e.g., Heyman v. Darwins Ltd. [1942] A.C. 356 (H.L.).

6 [1951] 1 K.B. 417,421.

7 [1980] 2 W.L.R. 283.

8 Vine v. National Dock Labour Board [1957] A.C. 488, 500 (H.L.); Francis v. Kuala Lumpur Councillors [1962] 1 W.L.R. 1411 (P.C.); Denmark Productions Ltd. v. Boscobel Productions Ltd. [1969] 1 Q.B. 699, per Harman L.J. at p. 737E-F; Sanders v. Ernest A. Neale Ltd. [1974] I.C.R. 565.

9 See Vine v. National Dock Labour Board, supra, n. 8.

10 Gannon v. J. C. Firth Ltd. [1976] I.R.L.R. 415 (E.A.T.); l.P.C. Business Press Ltd. v. Gray [1977] I.C.R. 858 (E.A.T.); Kallinos v. London Electric Wire Ltd. [1980] I.R.L.R. 11 (E.A.T.); Smith v. Avana Bakeries Ltd. [1979] I.R.L.R. 423 (E.A.T.); Waudby v. H.F.M. Transport Ltd. [1976] I.R.L.R. 35.

11 Thomas Marshall (Exports) Limited v. Guinle [1979] Ch. 227 (Ch.D.); Gunton v. Richmond-upon-Thames London Borough Council [1980] I.C.R. 755 (C.A.); London Transport Executive v. Clarke [1981] I.C.R. 355.

12 [1957] A.C. 488, 500 (H.L.), endorsing a previous statement by Jenkins L.J. in the Court of Appeal [1956] 1 Q.B. 658, 674. The statement should be, it is submitted, regarded as obiter because Viscount Kilmuir L.C. was contrasting the ordinary master and servant case with the case before him, which concerned an application for a declaration of invalidity of a dismissal of an employee employed under a statutory scheme for dock workers ([1957] A.C. 488, 500).

13 [1962] 1 W.L.R. 1411, 1417 (P.C.).

14 [1969] 1 Q.B. 699, 737, per Harman L.J.

15 [1971] 1 W.L.R. 361, 381, per Buckley L.J.

16 British Building and Engineering Appliances Ltd. V. Dedman [1973] I.C.R. 82 (N.I.R.C.); [1974] I.C.R. 53 (C.A.); Dixon v. Stenor Ltd. [1973] I.C.R. 157 (N.I.R.C.) and see now Robert Con and Sons Ltd. v. Charman [1981] I.R.L.R. 437 (E.A.T.); cf. Chapman, Blair and Atkinson V. Exors of W. G. Leadley [1966] 1 I.T.R. 84 (I.T.); Johnson v. John Thompson Ltd. [1966] 1 I.T.R. 261, Cf. also the argument that s. 49 (3) of the Employment Protection (Consolidation) Act 1978 (which reserves the right of an employee to waive “ his right to notice on any occasion ” and to accept a payment in lieu of notice) creates a statutory right to reject a payment in lieu of notice. It is generally assumed (in the absence of an enabling term in the contract) that a dismissal with payment in lieu is a dismissal in breach of contract (see Freedland, The Contract of Employment, pp. 181–189, but cf. Konski v. Peet [1915] 1 Ch. 530). If it were not, termination would be lawful. Contrast an employer's statement that an employee is simply not required to work out his notice when given a payment in lieu: this probably has the effect that he is employed for the duration of the notice period: Adams v. G.K.N. Sankey Ltd. [1980] I.R.L.R. 416.

17 E.g., Denmark Productions Ltd. v. Boscobel Productions Ltd. [1969] 1 Q.B. 699, 731, per Winn L.J.; Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 1 W.L.R. 361, 369, per Salmon L.J.

18 See n. 10, supra.

19 [1951] 1 K.B. 417. See also Gorse v. Durham County Council [1971] 1 W.L.R. 775.

20 See, as far as the Industrial Relations Act 1971 is concerned, the interesting note by P. O'Higgins [1973] I.L.J. 238.

21 The view of Lord Denning M.R. in Western Excavating (ECO Ltd. v. Sharp [1978] Q.B. 761, 770[1970] 1 Q.B. 186.

23 [1972] I.C.R. 214 (N.I.R.C).

24 See O'Higgins, op. tit., n. 20, supra.

25 [1973] I.C.R. 560.

26 The assimilation of the definition for the purposes of redundancy and unfair dismissal was made via para. 5, Sched. 1 to the Trade Union and Labour Relations Act 1974 and Part I, para. 3 of Sched. 16 to the Employment Protection Act 1975. In fact Lord, Denning M.R. in Western Excavating Ltd. v. Sharp [1978] Q.B. 761, 770, said, of Marriott's case: “It was not really an (a) case, but we had to stretch it a bit. It was not the employer who terminated the employment. It was the employee: and he was entitled to do so by reason of the employer's conduct.”Google Scholar

27 [1974] I.C.R. 565 (N.I.R.C).

28 Ibid., p. 571.

29 See the cases cited in n. 10, supra and see the discussion of Phillips J. in Thompson v. Eaton [1976] I.C.R. 336 (possible effect of employer repudiation).

30 The case usually quoted is that of Gannon v. J. C. Firth Ltd. [1976] I.R.L.R. 415 when strikers were held to have dismissed themselves by the act of going on strike. Note the parallel device of avoiding an admission of dismissal where it can be alleged that frustration has taken place and termination has occurred by operation of law without the need for action by the employer: Marshall v. Harland & Wolff Ltd. [1972] I.C.R. 101; The Egg Stores (Stamford Hill) Ltd. v. Leibovici [1976] I.R.L.R. 376; Hare V. Murphy Bros. Ltd. [1974] I.R.L.R. 342. The courts do not like this form of automatic termination (see Harman v. Flexible Lamps Ltd. [1980] I.R.L.R. 418), but if contractual principles are to interact with unfair dismissal, it is hard to deny the possibility of frustration of the contract of employment: see Harrington v. Kent County Council [1980] I.R.L.R. 353.

31 Employment Protection (Consolidation) Act 1978, s. 55.

32 A dismissal for misconduct, although possibly lawful at common law, may be unfair under the law of unfair dismissal. Conversely, an unlawful dismissal at common law will not necessarily be unfair. The principles of the test of an unfair dismissal (by contrast to many principles relating to termination of contracts) are independent from the concept of wrongfulness at common law. See Treganowan v. Robert Knee and Co. Ltd. [1975] I.C.R. 405.

33 The E.A.T. has also recognised the artificiality of allowing an employer to allege frustration by long-term illness of the employee when it would be more reasonable to treat his response to that illness as a dismissal and have the action judged as to its merits under the law of unfair dismissal: see Harmon v. Flexible Lamps Ltd. [1980] I.R.L.R. 418.

34 This ignores, though, the problems of waiver and consensual termination: see Rowsell v. Metropolitan Water Board [1915] 4 L.J.(N.S.)K.B. Part 2, p. 1869; , Freedland, op. cit., p. 54. But in G.K.N. (Cwmbran) Ltd. v. Lloyd [1972] I.C.R. 214 it was thought the idea of new contracts following on the old was the correct interpretation of performance after repudiatory breach. Cf. W.P.M. Retail v. Lang [1978] I.C.R. 787.Google Scholar

35 See Cropper v. Butler Machine Tool Co. Ltd. [1973] I.R.L.R. 194; Thomas v. W. Richards and Sons Ltd. [1966] 2 K.I.R. 190. Note also in the context of redundancy, the effect of ss. 84, 94 of the Employment Protection (Consolidation) Act 1978 (disqualification from payment if employee works after dismissal in response to an offer of renewed employment).

36 See generally here Elias [1978] I.L.J. 16, 101.

37 Thomas Marshall (Exports) Ltd. v. Guinle [1978] 3 All E.R. 193; Gunton v. Richmond-upon-Thames London Borough Council [1980] I.C.R. 755; London Transport Executive v. Clarke [1981] I.C.R. 355.

38 [1978] 3 All E.R. 193.

39 It was conceded that the defendant might be liable for breaches occurring prior to the wrongful resignation.

40 [1978] 3 All E.R. 193, 205.

41 [1898] 2 Ch. 451.

42 [1937] 1 K.B. 209.

43 (1852) 1 De G.M. & G. 604.

44 Enforcement of a positive stipulation would of course amount to an order for specific performance. Note that the courts though will not imply a negative stipulation not to work for another as a counterpart of a positive stipulation to work for one employer: Whitwood Chemical Co. v. Hardman [[1891] 2 Ch. 416. Even enforcing a negative stipulation though may be very close in real terms to granting an order for specific performance, a fact recognised in Page One Records Ltd. v. Britton [1967] 3 All E.R. 822.

45 At p. 205. See also the similar decision in New Zealand of Thomas Borthwick and Sons (Australasia) Ltd. v. South Freezing Co. Ltd. [1977] 1 N.Z.L.R. 366, 370. Elias, Napier and Wallington (Labour Law: Cases and Materials, p. 491) disagreeing with the conclusion that it was necessary to apply the elective theory of termination to get a fair result, argue that it would have been possible to construe the obligations as continuing after wrongful termination by an interpretation that the clause was to operate “for a period of [ten] years, unless the contract is previously lawfully terminated.” Whilst it is true that the courts will allow a clause of this nature expressed to operate after termination to survive termination (save where the employer is disentitled from relying on it where he has repudiated the contract: see General Billposting Co. v. Atkinson [1909] A.C. 118), no practical draftsman would possibly agree with a view that a clause clearly expressed to operate only during the continuance of the contract can operate thereafter.

46 Ibid., p. 205.

47 Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D., 339.

48 (1946) 72 C.L.R. 435, 451.

49 [1969] 1 Q.B. 699.

50 [1971] 1 W.L.R. 361.

51 [1980] I.C.R. 755.

52 Per Buckley L.J. at p. 771.

53 At p. 763.

54 Per Brightman L.J. at p. 778, per Buckley L.J. at p. 772.

55 At p. 763C.

56 [1974] I.C.R. 565.

57 See, e.g., Gunton v. Richmond-upon-Thames London Borough Council [1980] I.C.R. 755, 772–773, per Buckley L.J.; 778, per Brightman L.J.; Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216, 223 per Salmon L.J.; 228, per Sachs L.J.

58 (1881) 6 App.Cas. 251.

59 But cf. Colley v. Overseas Exporters [1921] 3 K.B. 303, where by contrast, property in the goods had not already passed. Cf. also National Cash Register Co. v. Stanley [1921] 3 K.B. 292; Karsales (Harrow) v. Wallis [1956] 1 W.L.R. 936.

60 [1974] I.C.R. 565, 571E-F.

61 Elias, Napier and Wallington, Labour Law: Cases and Materials, p. 492; cj. (sed quaere) Muler v. Nettle Accessories Ltd. [1966] 1 I.T.R. 328; Edwards v. Arbuthnot & Sons [1967] 2 I.T.R. 282.

62 [1959] 3 All E.R. 552, 558 (affirmed [1960] 3 All E.R. 774 (C.A.)).

63 See, e.g., Automatic Fire Sprinklers Proprietary Ltd. v. Watson [1946] 72 C.L.R. 435, 465, per Dixon J. (H.C. of Australia); Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 AU E.R. 216, 223, per Sachs L.J.

64 As in Riordan v. The War Office [1959] 3 All E.R. 552; Harris and Russell Ltd. v. Slingsby [1973] I.C.R. 454 (N.I.R.C); Bryan v. George Wimpey & Co. Ltd. [1968] 3 I.T.R. 28 (I.T.); cf. Murphy v. A. Birrell and Sons Ltd. [1978] I.R.L.R. 458 (E.A.T.).

65 Bryan v. George Wimpey and Co. Ltd. [1968] 3 I.T.R. 28.

66 [1971] 1 W.L.R. 361 (emphasis added).

67 [1978] I.R.L.R. 458.

68 See , Freedland, op. cit., pp. 272–278. Cf. Hill v. C. A. Parsons Ltd. [1972] Ch. 305 (C.A.); C. H. Giles & Co. v. Morris [1972] 1 W.L.R. 307 (Ch.D.). Note, too, the Trade Union and Labour Relations Act 1974, s. 16.Google Scholar

69 A. Schroeder Music Publishing Co. Ltd. v. Macaulay [1974] 3 AH E.R. 616. Cf. the previous view that the validity (as opposed to remedy for its breach) of the stipulation could only be questioned where it related to periods after the cessation of employment: Treitel, The Law of Contract, pp. 768–769.

70 See Lumley v. Wagner (1852) 1 De G.M. & G. 604. Terms intended to have effect after termination may be given effect to, of course, subject to the courts reluctance to give effect to a clause restrictive of competition after wrongful termination by the employer; e.g., General Bill posting Co. v. Atkinson [1909] A.C. 118; Konski v. Peet [1915] 1 Ch. 530. Note, too the survival of the duty of confidentiality (Robb v. Green [1895] 2 Q.B. 315) and generally the survival of exclusion, arbitration and choice of forum clauses (see Photo Production Ltd. v. Securicor Transport Ltd. [1980] 1 All E.R. 556, 567, per Lord Diplock).

71 [1979] 1 All E.R. 883.

72 [1979] 1 All E.R. 883, 889e, per Lord Wilberforce.

73 [1980] 1 AU E.R. 556.

74 [1980] 1 All E.R. 556, 567, per Lord Diplock.

75 [1972] Ch. 305.

76 The case is regarded as particularly unusual in the sense that confidence was maintained between employer and employee despite the dismissal, for the employer was pressurised to dismiss by a trade union against his will. It has been indicated that the case should not be followed except in a situation on all fours: see G.K.N. (Cwmbran) Ltd. v. Lloyd (1972] I.C.R. 214; Sanders v. Ernest A. Neale Ltd. [1974] I.C.R. 565.

77 Lord Denning M.R. said: “I t may be said that, by granting an injunction in such a case, the court is indirectly enforcing specifically a contract for personal services. So be it” ([1972] Ch. 305, 315A-B).

78 See Lord Denning M.R. at p. 314. Sachs L.J. very firmly, however, stated that the elective theory applied to contracts of employment generally (see p. 319) whilst Stamp L.J. assumed without deciding, for the present purposes, that the contract of employment subsisted, the repudiation not having been accepted (see p. 321).

79 This is well documented by Freedlandop. cit., pp. 274–278. The reasons are the question of difficulty of supervision: Clarke v. Price [1819] 2 Wils.Cas.Ch. 157 (but doubted in C. H. Giles & Co. Ltd. v. Morris [1972] 1 W.L.R. 307, per Megarry J.); that to compel performance of contracts for personal services is to condone a contract of “slavery”: De Francesco v. Barnum (1890) 45 Ch.D. 430, 438; and lack of mutuality: Page One Records Ltd. v. Britton [1968] 1 W.L.R. 157, 165 (and note the Trade Union and Labour Relations Act 1974, s. 16).

80 See Vidyodaya University Council v. Silva [1965] 1 W.L.R. 77.

81 Vine v. National Dock Labour Board [1957] A.C. 488, 500, per Viscount Kilmuir L.C.

82 Vine v. National Dock Labour Board, Ibid.; Francis v. Kuala Lumpur Councillors [1962] 1 W.L.R. 1411; Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578; McClelland v. N.I. General Health Service Board [1957] 1 W.L.R. 594.

83 Taylor v. National Union of Seamen [1967] 1 W.L.R. 532; Stevenson v. United Road Transport Union [1977] I.C.R. 893. A discussion of the public law principles involved in these cases is beyond the scope of this paper. But see Ganz, “Public Law Principles Applicable to Dismissal from Employment” (1967) 30 M.L.R. 288.

84 [1980] I.C.R. 310.

85 An injunction was refused by the Court in Gunton on the grounds that the employment had no public flavour to it. But it is hard to see the difference between Jones v. Lee and Gunton in that respect.

86 [1980] I.C.R. 310, 320, 322 respectively.

87 [1975] I.R.L.R. 90, 94.

88 An example of a discussion of the criteria employed by the courts in deciding whether or not to grant the remedy is contained in the judgment of Sachs L.J. in Hill v. C. A. Parsons Ltd. [1972] Ch. 305. He made it also clear here that the fact the specific performance would not normally be granted in a contract for personal services was not an inflexible rule (at p. 320).

89 The point made in this section is that it is important to keep the contract alive to obtain specific performance. The same argument does not apply though to availability of the remedy of reinstatement that can be made by an industrial tribunal in the statutory context. That remedy is only available after termination anyway.

90 Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch.D. 339, 365. This claim is not, of course, subject to a duty to mitigate loss.

91 E.g., Denmark Productions Ltd. v. Boscobel Productions Ltd. [1969] 1 Q.B. 699.

92 E.g., per Buckley L.J. [1980] I.C.R. 755; per Winn L.J. in Denmark Productions Ltd. v. Boscobel Productions Ltd. [1968] 3 All E.R. 512, 524; per Salmon L.J. in Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216, 223. In Gunton, Buckley LJ. said the courts should easily infer acceptance (at [1980] I.C.R. 755A-C). Thus to avoid the stigma of having accepted the breach it seems the employee would have to do virtually nothing!

93 See, e.g., Automatic Fire Sprinklers Proprietary Ltd. v. Watson (1946) 72 C.L.R. 435, 452, per Latham C.J.; 465, per Dixon J. Originally there was a doctrine of constructive service which held that an employee dismissed without notice in circumstances where he was ready and willing to serve might sue in debt for wages he might have earned during the due period of notice, for then” in contemplation of law he may be considered to have served the whole [of the term]”: per Lord EUenborough in Gandell v. Pontigny [1816] 4 Camp. 375. However, this doctrine later began to be strongly refuted and passed out of usage: See Elderton v. Emmens [1848] 6 C.B. 160; Goodman v. Pocock [1850] 15 Q.B. 576; Williamson v. The Commonwealth (1907) 5 C.L.R. 174; Lucy v. The Commonwealth (1923) 33 C.L.R. 1237. However, Freedland, in (1969) 32 M.L.R. 314, 315 interestingly suggests that cases such as Goodman v. Pocock were not refuting an existing contractual principle but a doctrine derived from Poor Law settlement cases which, through Gandell v. Pontigny, gave the appearance of a contractual principle. Such an argument would assist the thesis canvassed in this paper (infra) that it is not necessarily so that there is a rule against the recovery of wages following dismissal.

94 [1971] 2 All E.R. 216, 223.

95 [1980] I.C.R. 755, 772A-B. See also Lord Denning M.R. in Attica Sea Carriers Corporation v. Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyd's Rep. 250.

96 Per Greer, J. in Browning v. Crumlin Valley Collieries Ltd. [1926] 1 K.B. 522, 528. But that was a piece work contract where the right to remuneration was clearly dependent on work actually done.Google Scholar

97 [1962] A.C. 413.

98 Lords Reid, Hodson and Tucker; Lords Morton of Henryton and Keith of Avonholm dissenting.

99 See Colley v. Overseas Exporters [1921] 3 K.B. 302, where it was considered property in the goods in Mackay v. Dick had passed. This would arguably be now the case by virtue of s. 49 (1) of the Sale of Goods Act 1893.

1 See Freedland, op. cit., pp. 19–21; Freedland [1977] C.L.P. 175.Google Scholar

2 [1940] 2 K.B. 469, 473. The fact that such pay is available to some employees when no work is provided gives some force to the counter proposition that wages may be recovered when no work is requested, but not entirely satisfactorily. This is because there is here a special circumstance whereby the employer omits to request work solely because the employee is not of ability, through sickness, to perform it. See Denning (1939) 55 L.Q.R. 353.Google Scholar

3 Turner v. Sawdon & Co. [1901] 2 K.B. 653 (C.A.).Google Scholar But cf. the increasing number of cases where exceptions are found to the principle that there is no right to work: Clayton v. Oliver [1930] A.C. 209Google Scholar; Devonald v. Rosser and Sons [1906] 2 K.B. 728Google Scholar; Breach v. Epsylon Industries Ltd. [1976] I.C.R. 316Google Scholar; Bosworth v. Angus lowett & Co. Ltd. [1977] I.R.L.R. 374Google Scholar, and see generally McMullen, “A Right to Work in the Contract of Employment” [1978] N.L.J. 848. In fact a frequent clause in directors service contract is as follows: “ As managing director of the company the director shall (a) Undertake such duties and exercise such powers in relation to the company and its business as the board of directors of the company … shall from time to time assign to or vest in him; …” (Encyclopaedia of Forms and Precedents, Vol. 20, p. 33, Form 1 A6). May an employer within that clause vest no duties in the employee with impunity, provided wages are paid? Cf. statements in Bosworth's case.Google Scholar

4 Neinaber in [1962] C.L.J. 213, 228 considers it sound. He concludes that the courts have for practical reasons avoided its application. If applicable, though, it might only apply to salaried employments, see Freedland [1977] C.L.P. 175, 179.

5 (1912) 106 L.T. 845. On the other hand it might be considered that Bray J.'s analogy with payment for rent in advance took the situation away from the contract of employment parallel. Similarly, although Latham C.J. in Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 C.L.R. 435, 452Google Scholar does envisage an “exceptional case where the payment of money to the servant does not depend upon his doing work … [in which case] … the servant can recover remuneration without doing work,” the conservative example put forward was a covenant to pay an annuity: an example atypical of the contract of employment. Sibery v. Connelly (1907) 96 L.T. 140Google Scholar and Lloyd v. Sheen (1905) 93 L.T. 174 appear to support a claim for remuneration but it can be seen to be based upon agreement by the master that the right to remuneration continued though no work (temporarily) was done.Google Scholar

6 [1962] A.C. 413, 431, applied in Hounslow (London Borough) v. Twickenham Garden and Builders Ltd. [1971] Ch. 233, 252. See also Finelli v. Dee (1968) 67 D.L.R. (2d) 393 and Attica Sea Carriers Corporation V. Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyd's Rep. 250, 256.Google Scholar (Comments in the latter case are strictly obiter since on a true construction of the contract, the redelivery of a vessel under charter was effective although repairs had not been done and so the owners could not refuse delivery and wait for instalments due-but Lord Denning M.R. said he would not follow White and Carter unless a case appeared on all fours therewith). But cf. the approach of Kerr, J. in Gator Shipping Corporation v. Trans. Asiatic Oil Ltd. S.A. and Occidental Shipping Establishment (The Odenfeld) [1978] 2 Lloyd's Rep. 357.Google Scholar

7 The examples put by Lord Denning M.R. in Hill v. C. A. Parsons Ltd. [1972] 1 Ch. 305, 314Google Scholar. But cf. Ivory v. Palmer [1975] I.C.R. 340 (C.A.).Google Scholar

8 See the Employment Protection (Consolidation) Act 1978, s. 74 (4). It is submitted that the interpretation that this is a separate statutory duty is probably correct but the wording is that the tribunal “shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damage recoverable under the common law of England and Wales.”

9 The mitigation rule of course does not apply to redundancy and other statutory rights and there are nevertheless some remedies for unfair dismissal which are not made subject to this duty to mitigate loss, such as the basic award and the award of reinstatement or re-engagement: Employment Protection (Consolidation) Act 1978, s. 73 (but see Employment Act 1980, s. 9 (2) (a): (basic award), ss. 68 (1), 69 (but see, ibid., s. 71 (5)). Nonetheless unfair dismissal is the most common industrial tribunal claim. (See Bercusson and Drake, The Employment Acts 1974-1980, pp. 7–39.)Google Scholar

10 See, e.g. Western Excavating (ECC) Ltd. v. Sharp [1978] Q.B. 761Google Scholar, 77OD-F; Terinex V. D'Angelo [1981] I.C.R. 12.Google Scholar

11 The limitation period is three months from the effective date of termination, with a defence if it was not “reasonably practicable” to present the claim within that period (Employment Protection (Consolidation) Act 1978, s. 67 (2). See Walls Meat Co. Ltd. V. Khan [1978] I.R.L.R. 74 (E.A.T.)Google Scholar; Riley v. Tesco Stores Ltd. [1980] I.R.L.R. 103 (C.A.)).Google Scholar It is submitted that to avoid confusion, the limitation period ought to run from the end of the work performed by the employee—the date of repudiation in the case of summary dismissal and the date of the end of the notice when it is given and worked. But this solution depends on the arguments infra. Note that Sir John Donaldson in Dixon v. Stenor Ltd. [1973] I.C.R. 157 suggested the even simpler solution (but which does not seem to be entirely in accord with the wording of the statute) that the effective date of termination (and so the commencement of the limitation period) should in every case run from the pronouncement of dismissal, thus in the case of a dismissal with notice, ignoring service performed during the period of notice.Google Scholar

12 [1980] I.C.R. 494.

13 [1981] I.C.R. 12.

14 [1980] I.C.R. 617. It will be argued that the end result of this analysis is to be welcomed, but there are in this case and in Rasool v. Hepworth Pipe Co. Ltd. [1980] I.C.R. 494, 503Google Scholar, unfortunate references to “fundamental breach” and in the latter case, to Harbutt's “Plasticine” Ltd. v. Wayne Tank and Pump Co. Ltd. [1970] 1 Q.B. 447Google Scholar, which are suspect in the light of Photo Production Ltd. v. Securicor Transport Ltd. [1980] 1 All E.R. 556. But it will be argued the same result can be achieved by reference only to the wording of the statutory definition of dismissal.Google Scholar

15 [1981] I.C.R. 355.

16 At p. 365. Sed quaere whether this is correct. See n. 23, infra.

17 At p. 364.

18 [1976] I.R.L.R. 415.

19 [1980] I.R.L.R. 11.

20 [1981] I.C.R. 355, 372.

21 A further point is that the Master of the Roll's distinction between two types of repudiation is redolent of his approach in Harbutt's “Plasticine” v. Wayne Tank and Pump Co. Ltd. [1970] 1 Q.B. 447, that is, that under the general law of contract a contract may be terminated automatically by breach of such a fundamental nature that in practical terms the injured party has no option at all. This idea is obviously unsound in the light of Photo Production Ltd. v. Securicor Transport Ltd. Finally Lord Denning M.R.7apos;s preference for some of the selfdismissal cases is overtly covered by the highly questionable belief that they should be used as a device to limit the number of cases in which the merits of the employer's response would otherwise be examined by tribunals (at p. 364G).Google Scholar

22 At p. 367D.

23 See Templeman L.J. at p. 368B-E and Dunn L.J. at p. 373D-E. The actual result of the case is not inconsistent with this approach because the conduct actually complained of can be regarded not as a permanent walking out (but cf. Lord Denning M.R. at p. 365) but repudiation short of such wrongful resignation. In other words the breach was coupled with a willingness to serve, the employee's wife had indicated his intention to return and he returned with (albeit dubious) medical certification to cover the absence.

24 See too, W. E. Cox Toner (International) Ltd. v. Crook [1981] I.C.R. 823.Google Scholar

25 [1981] I.R.L.R. 437. See also Goldsmith v. R.l.B.A. Services Ltd. [1974] I.R.L.R. 176.Google Scholar

26 [1973] I.R.L.R. 371; cf. Chapman v. Letheby & Christopher Ltd. [1981] I.R.L.R. 440.Google Scholar

27 [1981] I.R.L.R. 437, 439.

28 Ibid., p. 440.

29 The writer wishes to thank Dr. Patrick Elias for reading an earlier draft of this article and for making many helpful comments. The writer accepts full responsibility, of course, for any errors and omissions that remain.