Public Law Principles Applicable to Dismissal from Employment
| Published date | 01 May 1967 |
| Author | G. Ganz |
| Date | 01 May 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb02274.x |
PUBLIC LAW PRINCIPLES APPLICABLE
TO
DISMISSAL FROM EMPLOYMENT
IN
public law there exist principles such as the rules of natural
justice which have been evolved in respect of relationships other
than those of master and servant but are based
on
reasoning which
is clearly applicable to the employment situation. There is also the
remedy of declaration which is effective against a public authority
so
that
it
can be tantamount to specific performance. And occa-
sionally
it
is possible in cases of public employment to catch a
glimpse
of
a totally different approach to the employment contract
as
something more permanent than a contract determinable at
pleasure Ly giving notice.
It
is the application of public law prin-
ciples to contracts of employment with public authorities and their
relevance to cases
of
private employment which is the subject-
matter of this article.
It
is proposed to deal
&st
with cases
of
summary dismissal as regards both the grounds of dismissal and
the procedure to be followed; then the termination of the contract
by notice and finally the remedies for breach of contract will be
investigated-all through public law spectacles.
GROUNDS
FOR
SUMMARY
DISMISSAL
It
is a well-known rule of law that the courts will imply the grounds
for summary dismissal into
a
contract of service. Most
of
the
cases are concerned with dehing the misconduct which will justify
dismissal without notice.
It
is rare to find
in
a private employment
contract express terms laying down the grounds for summary dis-
missa1.l ,Where there have been such terms there arises immedi-
ately a problem of construction: who decides whether the terms
of the contract have been broken by the servant
?
The construction
of the contract is a matter for the court but if the term is worded
so
as to leave its application in the discretion of the employer
is this contrary to public policy as ousting the jurisdiction of the
court? The court had to decide this problem
in
London
Tramways
Co.
Ltd.
v.
where the servant had to pay
$5
as security
for the due discharge of his duties. In the case of breach
of
the
rules of the company, the company could retain the
$5
and
a
week’s wages as liquidated damages. The company’s manager
was to be the sole judge of whether the company were entitled to
retain
E5
and the wages and his certificate was to be binding
on
the court.
It
was held that this contract was not contrary to
1
Fridman,
“
The Modern Law
of
Employment,”
p.
447.
2
(1877)
3
Q.B.D.
217.
288
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