NOTES OF CASES
| Published date | 01 July 1973 |
| Date | 01 July 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01377.x |
NOTES
OF
CASES
COMPENSATION
FOR
UNFAIR DISMISSAL
SECTION
22
of the Industrial Relations Act
1f~71,
which gives
most employees the right not to be unfairly dismissed, is the
section which is most likely to affect lawyers in their professional
capacity.
For
obvious, and different, reasons both litigants and
their legal advisers are interested in knowing in advance how
much money is likely to be at stake in a case arising out of such a
dismissal. The Act itself does not provide much assistance on
this issue
I;
nor do the early industrial tribunal decisions indicate
any clear principles for the assessment of compensation in such
cases.2 The decision In
Norton Tool Company Limited
v.
TewsonS
in which the NIRC (the Court) considered this question for the
first time and laid down principles of general application is there-
fore particularly welcome.
Mr.
Tewson, who had been employed by the respondents for
eleven years at a weekly wage of
225.80,'
had been summarily
dismissed in the course
of
an argument with his employers. He
brought a claim for unfair dismissal and succeeded in the tribunal.
He was awarded a total of
2250.
The tribunal said that this
included
2102.40
for wages lost whilst he was unemployed and
that they had taken into account the abruptness of his dismissal
and the consequent injury to his feelings. The employers appealed
on the ground that the tribunal had misdirected themselves in
assessing the amount of compensation
;
the applicant cross-appealed.
Both parties agreed that, if either appeal succeeded, the NIRC
should itself assess the true measure of compensation rather than
remit the case to the tribunal. The NIRC essentially allowed
both appeal and cross-appeal and substituted
a
figure of
2375.
In an unfair dismissal case there is no right of appeal from
the decision of a tribunal on a question of fact. An appeal does
however lie to the NIRC on a question
of
law. The Court therefore
accepted that it could not intervene in the
Tezvson
case simply
because it would not have reached the same decision as the
tribunal.
If
it could be shown that the tribunal had erred in
principle, the Court would intervene. The tribunal was under a
duty
to
set out the principles upon which it had assessed compensa-
tion; and it had erred in law to the extent that it had failed
to
1
See
88.
116
and
118.
2
For
a
brave attempt see
Hewitson
V.
Anderton
Springs
Ltd.
[1972]
7
I.T.R.
301.
3
[1072] I.C.R.
501.
4
It
was
not
clear whether this was his
gross
or
his
take home
pay.
424
JULY
1978
NOTES
OF
‘CASES
425
do
so.
This conclusion will undoubtedly render
it
far easier
to
appeal from tribunals on questions of quantum and
it
will thus
make
it
easier to achieve overall consistency in this branch of the
law.
Although the Court itself identified at least five distinct heads
of compensation, it did not give any precise definition of the
duty imposed on tribunals. The Court simply said that “no
great elaboration
is
required, and the task should not constitute
a
burden.”s
It
did not therefore indicate clearly whether
or
not
tribunals were required to allocate separate sums to each
of
the
heads of compensation
so
identified.s In
Donnelly
v.
Feniger
and
Blackbu~n,~
however, the Court has subsequently stated quite
unequivocally that tribunals are obliged to allocate a separate
sum to each of these heads.
The Court stated quite unequivocally that
“
the common law
rules and authorities on wrongful dismissal are irrelevant.”
As
the accumulated learning of the common law is thus rendered
entirely irrelevant, it is unfortunate that the particular issues
raised by the
Tewson
case lay within
so
small a compass.
For
instance,
it
was not suggested that
Mr.
Tewson had failed to
mitigate his loss. The Court therefore simply observed that
section
116
(2)
“goes on to bring in the common law rules con-
cerning the duty of a complainant to take reasonable steps
to
mitigate his own loss.” This brief statement gives little indication
of the precise scope of an employee’s duty to mitigate.1°
Furthermore, when the Court came to consider the claim for
wages payable during the notice period, it stated that an employee
was under no obligation to
“
give credit for anything which he
earned
or
could have earned during the notice period.”
l1
As
the
principles of unfair dismissal are potentially applicable to employees
with long periods of notice,12 this statement may lead to unac-
ceptable results in practice. Furthermore, in the context of unfair
dismissal the duty to mitigate applies only after the notice period
has expired. The position
is
not the same at common
law:
to
5
At p.
505C.
6
Ordinary courts are not obliged to allocate separate
eume
to separate heads
of
damage, but they are, probably, obliged to distinguiah between special and
general damages and between pecuniary and non-pecuniary general damagee-
see
Jeflord
v.
Gee
[1970]
2
Q.B.
130.
7
[1973] I.C.R.
68.
*
At p.
504C.
9
At p.
503D.
10
It
is not clear whether the relevant authorities
should
be
drawn entirely from
the
old
common law on employment or whether
it
is permissible
to
use casee
on expulsion from trade union such
as
Edwards
v.
S.O.G.A.T.
[1971]
Ch.
354
and even redundancy cases involving refueal
to
accept suitable alternative
employment.
l1
At p.
605H.
12
See
e.
30
of the Industrial Relations Act 1971 which requires exprees notice of
exclusion even in
the
case of employees with
fixed
term contracts
of
two yeare
or more.
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