LABOUR LAW-

UNIT 3-
TERMINATION OF
EMPLOYMENT-
PART 2
COMMON LAW DISMISSALS-
WRONGFUL, SUMMARY AND
CONSTRUCTIVE DISMISSALS
Prepared by: Shanice N. Trowers, Lecturer,
FOL, UTECH
 WRONGFUL
DISMISSAL

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 WRONGFUL DISMISSAL
• Wrongful dismissal is a common law form of dismissal that is concerned with
the form of the dismissal and not the merits or fairness of the dismissal.
• There were three main situations in which a common law action for wrongful
dismissal would arise:
1. An employee was dismissed without the appropriate notice period being
given; (See the case of Wallace v United Grain Growers Ltd [1997] 152
DLR
2. An employee was employed under a fixed-term contract which was
terminated before the expiry of the fixed term;
3. An employee was employed under a contract which stated the only
circumstances under which a dismissal could occur and the employer
dismissed the employee for some other reason. (McClelland v Northern
Ireland General Health Services [1957] 2 All ER 129

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 WRONGFUL DISMISSAL
• The action is for damages stemming from the breach of contact which
would essentially be damages relating to the notice period or the remainder
of a fixed term contract.
• For most employees, the remedy of wrongful dismissal may not be beneficial
because the periods of notice or remainder of fixed term contract is usually
so short.

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 WRONGFUL DISMISSAL
• Wrongful dismissal is likely to be beneficial for only two specific groups of
workers:
• 1. Those on fixed-term contracts who have been dismissed way before the
end of the fixed term of employment.
• 2. Employees excluded from unfair dismissal claims (does not satisfy the
statutory requirements for unfair dismissal)–

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 NOTICE

• In Jamaica, section 3 of the Employment (Termination and Redundancy)

Payment Act 1973, sets out the minimum notice requirements as follows
for employers wishing to dismiss employees:
1. For employment contracts less than 5 years, the required notice period is 2
weeks;
2. For greater than 5 years but less than ten years, the required notice period is 4
weeks;
3. For greater than 10 years but less than 15 years, it is 6 weeks;
4. For greater than 15 years but less than 20 years, it is 8 weeks; and
5. For 20 years and above, 12 weeks notice is required by statute.

Prepared by: Shanice N. Trowers, Lecturer, FOL-UTECH 6

 NOTICE
• The minimum notice period required to be given by
employees to their employers is two weeks after four
weeks of continuous employment as indicated by section
3 (2) of the Employment Termination and Redundancy
Payment Act.
• Note that if an employment contract specifies a
probationary period then either party to the contract may
terminate without notice during the probationary period
or where the probationary period is more than ninety days,
during the first ninety days. (Section 3 (4) of the ETRPA)

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PAYMENT IN LIEU OF NOTICE (PILON)
• Section 3 (3) (a) of the ETRPA states that subsections (1)
and (2) which speak to the period of notice shall not prevent
either party to a contract of employment….from accepting
a payment in lieu of notice.”
• Where either party to the contract has not been provided
with the appropriate notice, a payment in lieu of notice could
be used to address the lawfulness of the termination.
[Gaynor v Cable and Wireless Jamaica et al [Suit No.
CLG 124 of 2000 (unreported) delivered on 1 December
2005]
• See also the case of Delaney v Staples [1992] 1 All ER 944
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 REMEDIES FOR WRONGFUL
DISMISSAL
• DAMAGES
• The main remedy for wrongful dismissal is damages.
• The amount of damages payable in a claim for wrongful dismissal is
generally restricted to the amount of pay which would have been earned
during the notice period the employee was entitled to or if it involves a
fixed-term contract then this will be the pay for the remainder of the
fixed term unless the contract allowed the parties to terminate before the
end of the fixed term.
• Sums that may also be included are any commission and overtime
payments that would have been contractually due to be earned during the
notice period. Loss of pension rights can also be calculated because a
pension counts as wages. [See the case of Silvey v Pendragon plc
[2001] EWCA Civ 784
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 DAMAGES (cont’d)
• The value of fringe benefits such as the use of a company
car for private purposes can be claimed to the extent that
these relate to the notice period which should have been
given.
• The claim also can include the value of any rights to
which the employee would have become entitled if the
termination had been delayed until the end of a notice
period.
• Subsidised mortgages, share options, private medical
insurance can all be quantified and form part of the award
of damages.
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• Can there be damages for injury to
feelings/damage to reputation?

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 DAMAGES (Cont’d)

• Generally no, there can be no damages for injury to feelings/damage to

reputation during a wrongful dismissal. See the case of Addis v
Gramophone Co Ltd [1909] AC 488
• Exception-where the employee is a public figure such as an actress. See the
case of Marbe v George Edwards (Daly’s Theatres) Ltd [1928] 1 KB 269
and Herbert Clayton & Jack Waller Ltd v Oliver [1930] AC 209

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 DAMAGES (cont’d)

• Employee must take reasonable steps to find comparable work so as to

mitigate his losses.
• This does not necessarily mean that the employee must accept any work
regardless of how suitable or comparable.
• A refusal by the employee to accept other work may be unreasonable in the
circumstances.
• See the cases of Brace v Calder [1895] 2 QB 253 and compare with Yetton
v Eastwood Froy Ltd [1967] 1 WLR 104
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 INJUNCTIONS
• The courts are reluctant to directly or indirectly
enforce a contract of employment, sometimes
referred to as the ‘rule against enforcement’, as the
relationship is a highly personal one.
• However, it is possible that an injunction may be
granted in circumstances where damages are an
inadequate remedy.
• See the case of Hill v Parsons & Co Ltd [1972] Ch
305

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 SUMMARY
DISMISSAL

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 SUMMARY DISMISSAL
• A summary dismissal is essentially an instant dismissal which has immediate
effect ignoring contractual or statutory rights of notice.
• It follows that summary dismissal can be justified only in quite exceptional
circumstances.
• The only circumstances in which a summary dismissal can be justified is
where there is gross misconduct by the employee which amounts to a
repudiatory breach of contract that evinces a disregard for an essential term
of the contract.
• However, for a summary dismissal to be justified the court would still need to
accept that the particular behaviour did in fact amount to gross misconduct.
• See the case of Dunn & Another v AAH Ltd [2010] IRLR 709

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 • The Labour Code of Jamaica states that ‘no
worker should be dismissed for a first breach
of discipline except in the case of gross
misconduct.’
SUMMARY • See the case of Equipment Maintenance v
DISMISSAL NWU IDT [JM 2003 IDT 5]

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 • Actions with amount to gross misconduct:
1. Serious negligence- See the case of Howe v
Gloucester and Severnside Co-operative
Society [1975] IRLR 17- failure to follow
instructions leading to damage was held to
be gross misconduct. See also the cases of
SUMMARY Taylor v Alidair Ltd [1978] IRLR 82,
DISMISSAL David Lashley and Partners Inc v Bailey
Barbados (1992) 44 WIR 44
2. Gross insubordination- See the cases of
Pepper v Webb [1969] 1 WLR 514 and
Wilson v Racher [1974] IRLR 114

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 • 3. Dishonesty- See the case of Sinclair v
Neighbour [1967] 2 WLR 1
• 4. Breach of confidentiality-See the case of
Denco Ltd v Joinson [1991] IRLR 63
SUMMARY • 5. Threatening and violent behaviour- See the
DISMISSAL case of White v Victoria Mutual Building
Society et al [JM 2005 SC 16] where an
employee had assaulted a co-worker and it
was held that summary dismissal was justified.

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CONSTRUCTIVE
DISMISSAL

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 CONSTRUCTIVE DISMISSAL
• A constructive dismissal occurs in situations where the employee
effectively resigns but in circumstances where he is entitled to do so
because the employer’s conduct amounts to a significant breach of
the contract and therefore an unlawful repudiation of the contract.
• The employee first of all needs to make it clear that he considers it a
constructive dismissal or he may lose his chance of a remedy.
• See the case of Western Excavating v Sharp [1978] QB 761
• It is not mandatory that you state the reasons for constructive
dismissal if the reasons can be ascertained from the circumstances.
See the case of Weathersfield v Sargent [1999] IRLR 94 on this
point.

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 CONSTRUCTIVE DISMISSAL
• The actions of the employer will also be examined in
the context of what is customary in the work place.
See the case of Futty v D & D Brekkles Ltd [1974]
IRLR 130
• The actions of another employee, where the
employer is responsible for the behaviour of the
other employee can also ground a claim for
constructive dismissal. See the case of Hilton
International Hotels (UK) Ltd v Protopapa
[1990] IRLR 136
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 CONSTRUCTIVE DISMISSAL
• Actions which would give rise to constructive dismissal:
1. Unilateral changes in express terms of the contract- See the cases
of Alcan Extrusions v Yates [1996] IRLR 327 and the case of
Cantor Fitzgerald v Callaghan [1999] ICR 639
2. Demotion of the employee- See the case of BBC v Beckett
[1983] IRLR 43
3. Breach of an implied term- See the case of British Aircraft
Corporation v Austin [1978] IRLR 332
4. Harassment- Western Excavating (ECC) v Sharp
5. Verbal Abuse- See the case of Isle of Wight Tourist board v
Coombes [1976] IRLR 413
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 CONSTRUCTIVE DISMISSAL
• In France v Westminister City Council [Unreported EAT 0214/02], Wall J
restated the principles underlying the concept of constructive dismissal:
• 1. There must be a breach of contract by the employer;
• 2.The breach must be sufficiently important to justify resignation in response to the
impugned action of the employer;
• 3. The action may be the last in a series of relatively minor incidents which also
justify the employee’s decision to leave [‘the last straw principle’]
• 4. The employee must leave the job in direct response to the breach and not some
unconnected reason-See the case of Jones v F Sirl and Sons (Furnishing)
Limited [1997] IRLR 493. However compare this with the case of Waltons &
Morse v Dorrington [1997] IRLR 488
• 5. The employee must act quickly in leaving the job and making a claim for
constructive dismissal-[See the case of Jeffery v Lawrence [1977] IRLR 466

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 THE END
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