The Views Of Flighty Wrongful

Dismissal
In order to establish either claim there is a requirement that Flighty should establish that he was
dismissed as opposed to leaving. Where the employee commits a repudiatory breach of contract,
the elective theory holds that the contract is only terminated once the employer, as the innocent
party, has accepted the breach. Since the contract is ended by the employer, there is a dismissal for
the purposes of section 95(1)(a) of the ERA 1996. As the employee has committed a serious
contractual breach, the Bossman Ltd may not find it difficult to establish that there was a potentially
fair reason for the dismissal and that it acted reasonably in the circumstances, but this does not
inevitably follow.
A more effective way of protecting the Bossman Ltd in these circumstances is the idea of self
dismissal but this doctrine is of doubtful validity. In Gammon v J C Firth Ltd it was suggested that
employees who walked out of their employment in the course of a wildcat strike had thereby
dismissed themselves, and in London Transport Executive v Clarke Lord Denning MR argued that
the same reasoning should apply to a case where the employee too seven weeks' leave of absence
without permission.
According to Templeman LJ the acceptance by an Bossman Ltd of repudiation by a worker who
wishes to continue his employment notwithstanding his repudiatory conduct constitutes the
determination of the contract of employment by the employer. However, his Lordships distinguished
the situation where the employee walked out without wishing to continue the relationship of
employment; here, the Bossman Ltd accepted legislation could apply only if there was a constructive
dismissal, in the sense that the employee was responding to a repudiatory breach by the employer.
Conduct of the employee who evinces an intention not to carry on with the relationship of
employment may be regarded as terminating the contract of employment, according to the automatic
theory. Such conduct may be regarded, in effect, as a form of resignation; but the conditions for
drawing such an inference is strict.
Therefore on the basis of the information that is provided to us it would seem that either Bossman
could claim that Flighty resigned or Flighty could argue that he was unfairly dismissed and that these
were words that were said in the heat of the moment.
Whether the words uttered by Flighty and the conduct he displayed by walking out amount to
dismissal in a given case depends in part upon the intentions of Flighty and in part upon the
reasonably understanding of Bossman & Co:
the test which has to be applied in cases of this kind is along the lines, Were the words spoken those
of dismissal, that is to say were they intended to bring the contract of employment to an end? What
was the employer's intention? In answering that a relevant, and perhaps, the most important
question is how would a reasonable employe[r], in all the circumstances, have understood what the
employe[r] intended by what he said and did?
This test related to words uttered by an employer however the test is equally applicable to words
uttered by an employee. No formalities are required by law for an employee to resign his or her
employment. Unless it can be construed as a constructive dismissal which, requires the employee to
resign in response to a repuidatory breach of contract by the employer. The question is therefore
whether or not Flighty meant to bring the employment contract to an end. One party cannot rely on
undisclosed intention which the other party could not reasonably have ascertained; but if both parties
subjectively understand the contract to have been terminated, the reasonableness of their views as
irrelevant. The court may also construe the words used by reference to their accepted or customary
meaning in the trade in question.
Where words are uttered in the heat of the moment, the tribunal ought to be careful to ensure that
what has taken place really is a dismissal or conversely, a resignation, and not merely some words
uttered for a particular reason which everybody quite understood were little more than abuse or
something of that sort. However some words are sufficiently unambiguous as to leave nobody in any
doubt as to their meaning, even when they are spoken in anger. Where there is ambiguity as is the
situated on here then If one is concerned with an immature employee, or decisions taken in the heat
of the moment, then what might otherwise appear to be a clear resignation, should not be so
construed. In these special circumstances, a reasonable period of time should be allowed to lapse
and if circumstances arise during that period which put the employer on notice that further inquiry is
desirable to see whether the resignation was really intended and can properly be assumed, then
such inquiry is ignored at the employers risk.
On this analysis it would seem that Flighty did not resign and therefore the question remains as to
whether or not he was wrongfully or unfairly dismissed.
To establish a claim for unfair dismissal there in essence two elements, the first is procedural and
the second substantive.
If Flighty decides to bring a claim for unfair dismissal to the employment tribunal the question of
whether the employer acted reasonably in treating as sufficient the reason which was the basis for
the dismissal. The emphasis on the employer's conduct means that the substantive justice of the
dispute is, by and large, a secondary consideration. As Viscount Dilhorne said in W Devis & Sons Ld
v Atkins section 98 (4) directs the tribunal to focus on the conduct of the employer and not on
whether the employee in fact suffered any injustice. Moreover the employer's conduct will be judged
not by reference to the nature of the right of the employee which might have been infringed, but by
reference to the standard set by a notional reasonable employer. The relevant principles were
summarised by Browne-Wilkinson J on behalf of the EAT in Iceland Frozen Foods Ltd v Jones: