B e f o r e :
A. G. Brooks, Esq.
R. Davies, Esq.
D. Turriff (instructed by Bristows, Cooke & Carpmael, London, W.C.2.) for the respondents.
Crown Copyright ©
"in the ordinary case of master and servant, the repudiation or the wrongful dismissal puts an end to the contract, and the contract having been wrongfully put an end to a claim for damages arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more."
"I should, on this point, be content to leave the matter as stated by Jenkins L.J., with whose judgment I am in entire agreement, but as I am differing from the majority of the Court of Appeal, I think it right to summarise my reasons. First, it follows from the fact that the plaintiff's dismissal was invalid that his name was never validly removed from the register and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case; there, if the master wrongfully dismisses the servant, either summarily or by insufficient notice, the employment is effectively terminated, albeit in breach of contract."
The emphasis is ours.
"It has long been well settled that, if a man employed under a contract of personal service is wrongfully dismissed, he has no claim for remuneration due under the contract after the repudiation. His only money claim is for damages for having been prevented from earning his remuneration."
"I doubt whether a wrongful dismissal brings a contract of service to an end in law, although no doubt in practice is does. Under such a contract a servant has a right to remuneration ... in return for services. If the master, in breach of contract, refuses to employ the servant, it is trite law that the contract will not be specifically enforced. As I hope I made plain in the Denmark Productions case, the only result is that the servant, albeit he has been prevented from rendering services by the master's breach, cannot recover remuneration under the contract because he has not earned it. He has not rendered the services for which the remuneration is payable. His only money claim is for damages for being wrongfully prevented from earning his remuneration. And like anyone else claiming damages for breach of contract, he is under a duty to take reasonable steps to minimise the loss he has suffered through the breach. ... I doubt whether in law a contract of service can be unilaterally determined by the master's breach. Perhaps a servant could sit still whilst the contract ran its course with the knowledge that the contract was, in law, still alive. But, in practice, this knowledge could be of little real comfort to him because he would be failing to take reasonable steps to minimise his loss - and since a claim for damages is his only money remedy, he would be prejudicing that claim by doing nothing. Accordingly he would, as a rule, be far better off to treat his contract as it were at an end, and this is usually what happens."
"It may be that contracts of service between master and servant should be regarded as an exception to this general rule [that an unaccepted repudiation does not discharge a contract]. Where a master wrongfully refuses to employ a servant contrary to such a contract, the servant's remedy lies in damages for wrongful dismissal and the cause of action arises immediately on the breach."
"[The sellers] have been thwarted in the attempt to fulfil that condition by the neglect of refusal of the [buyer] to furnish the means of applying the stipulated test; and their failure being due to [the buyer's] fault, I am of opinion that, as in a question with him, [the sellers] must be taken to have fulfilled the condition."
"27. In an early tribunal decision, Marsland vs. Francis Dunn Ltd ((1967) 2 I.T.R. 353), the tribunal said : -
'Can an employee, who by his own act, creates a condition of forced redundancy on his employers be given a redundancy payment in respect of such a redundancy?'
'The tribunal found this a very difficult question to answer as there is no guidance in the Act as to causative conditions, for circumstances of redundancy e.g. whether voluntary or involuntary or whether induced by the act or omission of an employee. The tribunal felt, but did not decide, that it would be contrary to the spirit and intention of the Act to give a redundancy payment in cricumstances of a self-induced redundancy.'
"That case was considered by the National Industrial Relations Court in E. & J. Davis Transport Ltd. vs. Chattaway ((1972) 7 I.T.R. 361). The court appeared to accept the general proposition that there could be a situation in which an applicant was not entitled to a redundancy payment on the grounds that there had been a 'self-induced redundancy', although it did not find that, in that case, there was a 'self-induced redundancy' since the situation which gave rise to the dismissal of the applicants was caused exclusively by the company in refusing their services on the terms of a contract which continued in existence throughout the period of a lockout which preceded their dismissal. We would respectfully say that the decision in E. & J. Davis Transport Ltd. vs. Chattaway may no longer be correct in view of the recent decisions in the Court of Appeal in Johnson & Another vs. Nottinghamshire Combined Police Authority (1974 9 I.T.R. 164 and Chapman vs. Goonvean & Rostowrack China Clay Co. Ltd. (1973) ICR 310 in which it has been held that a dismissal because the employer is unwilling to continue to employ the employees on the existing terms amounts to a dismissal but is not a dismissal by reasons of redundancy. In our view, it is incorrect, and should not be necessary, to consider whether an t employee is morally entitled to a redundancy payment. The essential question is, what was the reason for the dismissal? It seems to us that instead of approaching the matter by saying that the dismissal was due to redundancy but then going on to say that the applicant is not entitled because he himself has brought about that redundancy situation, it is more correct to say that the dismissal was not due to redundancy at all because, applying the test in section 1(2) of the Act, the redundancy was not wholly or mainly due to any of the reasons set out in that section. As we have indicated, we take the view in the present cases that the cessation of business and of the requirement of the respondents for employees was the consequence, and not as a result, of the dismissals. However, if and so far as the proposition of 'self-induced redundancy' is correct, we consider that it would be applicable in the present case."