Wrongful Dismissal under Common Law - Desklib

This article discusses the concept of wrongful dismissal under common law and its application in the case of Lando vs FitWorld. It covers the essential elements of wrongful dismissal, the calculation of damages awarded by the court, and relevant case laws. The article concludes that Lando cannot file a claim against FitWorld for wrongful dismissal under common law.

Employment laws 1
Employment Laws

Employment laws 2
Answer 1
Part A
Issue:
Whether Lando hold any right to take action against the FitWorld on the ground of Wrongful
Dismissal under the common law, and if yes then amount of damages awarded to Lando?
Law:
A wrongful dismissal under the common law is considered as that dismissal which breach the
contract, and the only ground on the basis of which Court or tribunal takes their decision is the
contractual obligations of the employer. Court does not consider the length of service provided
by the employee to the employer because no such information is required for the breach of
contract claim. In other words, wrongful dismissal mainly happens in those cases in which
employer dismiss the employee without giving any notice or provide notice of the insufficient
period of time in context of the employment contract signed between the parties.
Damages awarded by the Court generally calculated on the basis of the employee’s pay and
benefits in context of the notice period that the employer would have been given and whether
contract had been terminated lawfully1.
In case employee is dismissed because of any reason and the reason is valid, then dismissal of
the employee on the basis of such reason is not considered as wrongful dismissal. This dismissal
was resulted at the time when employer without providing any reasonable notice dismiss the
employee. It must be noted that, the actual reason behind the dismissal might be valid, but in
case employer fails to provide the sufficient amount of notice then Court has power to consider
that dismissal wrongful. Following are essential elements of the Wrongful dismissal:
 Employer terminates the employee before the completion of the employment period.
 Termination is based on the massive misconduct on the part of the employee and no
sufficient time is provided to justify the cause.
 Termination is done without providing notice or provides notice for insufficient time
period2.
In case law Diners Club v Narayan3, Court held that in case statutory provision fails to provide
any fair process, then in such situation common law provisions applied, which states that there
no need on part of the employers to exercise any fair process at the time of dismissing the
employee. Contrast, Court has developed the common law for the purpose of making up the
professed legislative deficiencies. In context of this issue, Court also decided the Pouono v The
1 Minken, Wrongful Dismissal—What Makes it Wrong?,
https://www.minkenemploymentlawyers.com/employment-law-issues/wrongful-dismissalwhat-makes-them-
wrong/, accessed on 17th June 2018.
2 Owen Hodge. Wrongful Dismissal Vs Unfair Dismissal,
https://www.owenhodge.com.au/employment-law/wrongful-dismissal-vs-unfair-dismissal/, accessed on 17th June
2018.
3 Diners Club v Narayan (1997) 43 FLR 299.

Employment laws 3
Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter Day Saints4 in
which Court suggest that prior developments were not correct and principles of fair process in
common law was not developing5.
In case law Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of
the Latter Day Saints, Court stated that petty cash money was misused by the plaintiff, and he
also borrows the money without any authorization more than one time. Court further determines
whether misuse of the funds was sufficient ground for the purpose of justify the instant dismissal.
Starting position of the Court was not argued and uncontested principle and states that the degree
of the misconduct was the question of fact in terms of justifying the dismissal. Case law Laws v
London Chronicle6 was used as supportive case for the purpose of supporting the comment of
the Obiter “any act of disobedience or misconduct was possibly capable to justify the dismissal
of the employee only in case if such act was on nature which reflect that employee is rejecting
the contract or any important term of the contract. On the basis of these facts, Court clearly
stated in case Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of
the Latter Day Saints, that breach of plaintiff was the breach of serious nature and such breach
was considered as the ground of summary dismissal.
Application:
In the present case, Lando enters into the employment contract with the Fitworld, and
employment contract between the parties cover following provisions:
 Employee is under obligation to follow the directions of the manager in prompt and
professional manner.
 Contract of employee can be terminated in context of the wilful misconduct, or any
such conduct which affects the reputation of the company in negative manner.
 Any information acquired by the employee while working will be considered as the
company’s property and must not be used by the employee for any other purpose.
In this case, Lando cannot file claim against the Fitworld for wrongful dismissal under the
common law because as stated above, in case employee is dismissed because of any reason and
the reason is valid, then dismissal of the employee on the basis of such reason is not considered
as wrongful dismissal. This dismissal was resulted at the time when employer without providing
any reasonable notice dismiss the employee.
In this case, Lando breach the terms of the agreement and such breach are serious in nature, as
Lando involve in the willful misconduct as he personally responded on the Jayed’s compliant
and this affects the reputation of the company in negative manner. As stated in case law Laws v
London Chronicle any act of disobedience or misconduct was possibly capable to justify the
dismissal of the employee only in case if such act was on nature which reflect that employee is
rejecting the contract or any important term of the contract. Lando also state while providing
4 Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter Day Saints [2002]
WSSC 27.
5 PACLII, 2008, common law fair process requirements in relation to termination of employment, <
http://www.paclii.org/journals/fJSPL/vol07no2/11.shtml>, Accessed on 17th June 2018.
6 Laws v London Chronicle [1959] 2 All ER 285.

Employment laws 4
interview to the Fitness, that he has strong client base and such client base is actually the
property of the Fitworld which cannot be used by the Lando for his own use. Therefore, in this
case, Lando is involved in the serious misconduct and the reason because of which he is
dismissed is valid. There is no wrongful dismissal.
Conclusion:
Lando cannot file claim against the Fitworld for wrongful dismissal under the common law
because the reason because of which Lando is dismissed is valid.
BIBLIOGRPAHY

Employment laws 5
Website
Minken, Wrongful Dismissal—What Makes it Wrong?,
https://www.minkenemploymentlawyers.com/employment-law-issues/wrongful-dismissalwhat-
makes-them-wrong/, accessed on 17th June 2018.
Owen Hodge. Wrongful Dismissal Vs Unfair Dismissal,
https://www.owenhodge.com.au/employment-law/wrongful-dismissal-vs-unfair-dismissal/,
accessed on 17th June 2018.
PACLII, 2008, common law fair process requirements in relation to termination of employment,
< http://www.paclii.org/journals/fJSPL/vol07no2/11.shtml>, Accessed on 17th June 2018.
Laws v London Chronicle [1959] 2 All ER 285.
Statute
Diners Club v Narayan (1997) 43 FLR 299.
Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter
Day Saints [2002] WSSC 27.