www.casemine.com · 1977-11-15The case of Western Excavating (ECC) Ltd v. Sharp ([1977] EWCA Civ 2) serves as a pivotal moment in employment law, particularly concerning the doctrine of constructive dismissal. This commentary delves into the intricate details of the judgment, exploring the background, key legal issues, and the ultimate resolution that set a significant precedent in defining the parameters of constructive dismissal under English law.
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Mr. Sharp was employed by the China-Clay Company for twenty months. After a minor disciplinary issue involving unauthorized time off to play a card game, Mr. Sharp was initially dismissed but had his dismissal substituted with a five-day suspension without pay upon appeal. Facing financial difficulties due to this suspension, Mr. Sharp opted to leave the company, claiming his departure was a result of the employer's conduct—thereby alleging constructive dismissal. The Industrial Tribunal awarded him compensation of £658, a decision upheld despite the employer's appeal. However, upon further appeal to the Court of Appeal, the compensation was set aside, establishing a crucial interpretation of what constitutes constructive dismissal.
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The crux of the judgment lies in distinguishing between two prevailing tests for constructive dismissal:
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This test stems from traditional contract law, focusing on whether the employer has committed a fundamental breach that directly undermines the employment contract. Key points include:
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- Significant breach of contract terms by the employer.
- Employee's immediate resignation without delay following the breach.
- The breach must be serious enough to justify termination without notice.
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Introduced as an alternative, this test emphasizes the reasonableness of the employer's conduct in maintaining employment. It considers whether the employer's actions make it unreasonable for the employee to continue working, regardless of any breach of contract. However, this test has been criticized for its vagueness and potential for inconsistent tribunal decisions.
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Lord Justice Lawton, delivering the judgment, advocated for the contract test over the unreasonableness test, arguing that the latter's indeterminacy leads to arbitrary and varied tribunal outcomes. He emphasized the need for clear legal standards based on established contract law principles to ensure fairness and consistency.
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: Affirmed the precedence of the
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test, providing clearer guidelines for determining
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Constructive dismissal occurs when an employee resigns due to the employer's behavior, effectively terminating the employment contract without formal dismissal. It's "constructive" because the employer's actions constructively force the employee to leave.
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Contract Test: Focuses on whether the employer has breached a fundamental term of the employment contract, justifying the employee's resignation without notice. Unreasonableness Test: Considers whether the employer's conduct makes it unreasonable for the employee to continue working, without relying on specific contractual terms.
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The judgment in Western Excavating Ltd v. Sharp is a landmark case that underscores the importance of adhering to established contractual principles in determining constructive dismissal. By favoring the contract test over the unreasonableness test, the Court of Appeal provided much-needed clarity and consistency in employment law. This decision not only protects employers from arbitrary dismissal claims but also ensures that employees have a clear framework within which to contest unfair dismissals. The case exemplifies the judiciary's role in balancing legal certainty with the equitable treatment of parties in the employment relationship, thereby contributing significantly to the evolution of labor law.
Judicial review - Application inter alia for (1) order of certiorari to quash decision of Chief Justice that applicant should cease to preside in court (2) order of mandamus to compel Chief Justice to do such administrative acts as necessary to permit applicant to perform his functions as a judge of High Court of Trinidad and Tobago (3) Order of prohibition restraining Judicial and Legal Services Commission (JLSC) from representing to the President under s. 137 of the Constitution that the question ought to be investigated — whether principles of natural justice/or fairness violated — Whether decision of Chief Justice and JLSC ultra vires and biased — Whether Commission should have notified applicant of the charges against him and given him a fair opportunity of responding — No express provision in section 137 of the Constitution for a judge to be heard — No requirement for person to be heard where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to his interest — JLSC performing more of an administrative than judicial or quasi-judicial function — Orders sought by applicant denied.
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On 23rd November, 1990, the applicant was suspended from performing the functions of his office under section 137 of the Constitution.
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>
> The Judicial and Legal Service Commission took a decision to represent to the President pursuant to section 137 of the Constitution that the question whether the applicant should be removed as judge ought to be investigated, and on or about the 2nd day of November, 1990, did so represent. By section 137 of the Constitution, a judge can be removed only for inability to perform the functions of his office, whether arising from infirmity of mind or body or any other cause, or for misbehaviour.
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> - (f) The Chief Justice and/or the Judicial and Legal Service Commission by their decisions aforesaid, intended to and did effectively suspend and/or interdict the applicant from performing his duties as a judge allegedly for considerations relating to his performance in court and his state of health and thereby acted unconstitutionally, illegally and without competence, authority or jurisdiction in that:
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>
> - (i) The respondents have no authority or jurisdiction under the Constitution or any other law to suspend and/or interdict the applicant from presiding in court and/or to exercise disciplinary control over a judge of the High Court, as they purported to do.
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> - (ii) The respondents violated and/or purported to violate the provisions of:–
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>
> - a) Section 106 of the Constitution which deals with the tenure of office of a judge:
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> - b) Section 136(6) of the Constitution which deals with the security of tenure of the office of a judge;
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> - c) Section 137 of the Constitution which provides the only lawful means by which a judge...
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lawlibrary.org.za · 2011-07-29Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23 (29 July 2011)
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# Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23 (29 July 2011)
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##### Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23 (29 July 2011)
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CitationJustice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23 (29 July 2011)CopyMedia Neutral Citation[2011] ZACC 23CopyCourtConstitutional Court of South AfricaLaw report citations
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2011
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5) SA
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388
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CC)Copy
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2011
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017 (
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JudgesMogoeng J,
Froneman J,
Cameron J,
Nkabinde J,
Jafta J,
Khampepe J,
Van der Westhuizen J,
Moseneke DCJ,
Skweyiya J,
Yacoob JJudgment date29 July 2011LanguageEnglishTypeJudgment
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6.|Glenister v President of the Republic of South Africa and Others [2011] ZACC 6 (17 March 2011)|50 citations|
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7.|Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32 (27 November 2014)|14 citations|