LAW MAKING IN THE INDUSTRIAL COURT
| Published date | 01 January 1974 |
| Date | 01 January 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02368.x |
| Author | P. L. Davies |
LAW
MAKING IN
THE
INDUSTRIAL
COURT
LAWYERS and non-lawyers concerned with giving legal advice
on
the
unfair dismissal sections of the Industrial Relations Act
1971,’
who
read
The Times
of
September
12,
1978,
were
no
doubt surprised
to
read that, according
to
the Law Reports of that paper, the National
Industrial Relations Court had observed that it was
‘‘
trite law
”
that there could
be
such a thing as
a
‘‘
constructive dismiesal.” The
revised judgment in the case of
Sutclifle
v.
Hawker Siddeley Avia-
tion Ltd.l
omits any reference to
“
trite law,” but nevertheless
makes clear the
cuurt’s
unequivocal acceptance
of
the notion
of
a
“
constructive dismissal.” Indeed,
at
a
first reading, the court’s
view
appears especially clearly for being unencumbered by any
accompanying discussion of precedent
or
policy, the whole matter
being disposed
of
in about
550
words, about
200
of which are
quotations from the Redundancy Payments Act
1965
and the Indus-
trial Relations Act
1971.
Such short treatment accords with the court’s evident desire to
reach the conclusion
it
did reach, and many
a
lawyer has felt, no
doubt, equally exasperated with other examples of the
non-
congruence of statutory language and common law principle.s The
particular problem considered in
Sutclifle
v.
Hawker Siddeley Avia-
tion
was the meaning
of
the word
“
terminated
”
in
section
8
(1)
(a)
of the Redundancy Payments Act
1965
and
in
section
28
(2)
(a)
of
the Industrial Relations
Act
1971,
both of which identically define
dismissal as occurring
inter
alk
where
‘(
the contract under which
[an employee] is employed by the employer is terminated by the
employer, whether it is
so
terminated by notice
or
without notice.”
The question which has been raised is whether repudiation
of
the
contract by the employer amounts to such termination. The usual
rule
in
the law of contract is that repudiation by one party does not
terminate the contract unless
it
is accepted by the other party; if
the repudiation is not accepted, the contract continues
on
foot.5
From this
it
can
be
argued that acceptance
of
the repudiation by
the employee means that
he
has terminated the contract and
not
his
employer,
so
that section
8
(1)
(a)
or
section
28
(2)
(a),
as the case
may be, cannot apply. There is some support
for
this line
of
argu-
ment in the existence
of
section
8
(1)
(c)
of
the
1965
Act, which at
the same time helps to reduce its practical significance, for section
3
(1)
(c)
provides that dismissal also occurs where
‘‘
the employee ter-
RR.
2sa.
-.
__
-
-.
[1973]
I.C.R.
560.
Cf.
British Car Auctions Ltd.
v.
Wright
“721
3
A11
E.R.
468.
[1973]
I.C.R.
660.
Atiyah,
Introduction to
the
Law
of
Cont,ract,
kd
ed.,
p.
260.
62
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