PUBLIC LAW PRINCIPLES APPLICABLE TO DISMISSAL FROM EMPLOYMENT

Transcription

1 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 occasionally 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 principles 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 dismissa1.l,where there have been such terms there arises immediately 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 (1877) 3 Q.B.D

2 MAY 1967 PUBLIC LAW AND DISMISSAL FROM EMPLOYMENT 289 public policy as ousting the jurisdiction of the court8 but was like other contracts where the parties submitted to the judgment of a third party. Similarly, in Diggle v. Ogston Motor CO.~ the engagement was to be for one year subject to the servant carrying out his duties to the satisfaction of the directors. It was held that genuine dissatisfaction was sufficient to entitle them to terminate the agreement, even though they had no good grounds for such dissatisfaction.b Where, however, the contract is not worded subjectively the courts will themselves determine whether it has been broken. In Lomax v. Harding the servant was to use his best endeavours to promote the interests of his master and to carry out all reasonable requests by him. The matter was left to the decision of judge and jury. Similarly, in Westwich v. Theador,?j where an apprentice could be dismissed for misconduct, this question was left to the jury. Whereas it is the exception to have express terms about dismissal in the ordinary private master and servant contract it is very common to have the grounds of dismissal of public servants laid down by statute or statutory instruments lo or in the statutes of a University.ll Further, any statutory body must keep within its statutory authority. In public law the courts constantly have to face the problem of construction of statutes and have to decide whether to apply the statutory standard to the facts of the case or to leave this task to a public authority. We are not concerned, here, with the whole problem of demarcation disputes between the courts and administrative bodies but only with the way in which the courts have handled the problem in cases of public employment. 8 Where, however, the parties try to oust the jurisdiction of the courts on a question of law this is contrary to public policy, Baker v. Jones [1954] 2 All E.R In that case construction of the rules was held to be a question of law, but in Lee v. Showmen s Guild [1952] 1 All E.R. 1175, 1182 Denning L.J. said that the application of rules to the facts is often a mixed question of law and fact and only reviewable for unreasonableness. The problem has also arisen where discretion to determine certain questions is conferred on trustees under a will. Contrast Re Wynn s Will Trust [ All E.R. 341 with Dundee General Hospitals Board of Management v. d7 alker [1952] 1 All E.R To treat the manager as a third party seems rather unrealistic. The case is a high-water mark of an employer using his superior economic strength to impose harsh terms on an employee and the courts acquiescing in the name of freedom of contract. It is very significant that in a later case involving a similar contract the court held that the manager must give the servant a hearing before forfeiting his wages. See Armstrong v. South London Tramways Co. Ltd. (1890) 64 L.T (1915) 84 L.J.K.B In Salt V. Power Plant CO. j All E.R. 322 there was a similar clause and the court took into account in estimating the damages for breach of the contract which was permanent that it might have appeared to the directors that they had good reasons for terminating the plaintiff s services. ~, _. 7 (1855) 10 Ex ~~.. 8 (1875) 10 Q.B County Courts Act 1934, s. 7, Police Act 1964, The Police (Discipline) Regulations 1965, S.I No. 543, Dock Workers (Regulation of Employment) Order S.R. & No University of SoutGaGpton Charter, 2nd Sched

3 290 THE MODERN LAW REVIEW VOL. 80 In Ex p. Ramshay,12 where the Lord Chancellor's power if he shall think fit to remove a county court judge for inability and misbehaviour was in issue, the court refused to redetermine whether there had been inability or dsbehaviour. In the schoolteacher cases where teachers could only be dismissed on educational grounds or grounds connected with the giving of religious instruction the courts at first determined for themselves whether these grounds existed.la But in later cases, where the question was whether notices of dismissal were outside the powers of the local education authority to maintain and keep efficient the public elementary schools in the area, the courts conceded a wide discretion to the authority to determine what was necessary to perform their duty.14 It was never an issue and was assumed throughout Ridge v. BaldwinlS that the watch committee had power to determine the grounds for dismissal of the chief constable. In Wilkinson v. Barking Corporation Scott L.J. said in relation to the analogous question of entitlement to superannuation benefits, " Whenever a charge of fraud or other grave misconduct is made under section 24 against one by his employing authority, however unjustified the charge may be, the only vindication of his good name open to him is such investigation 88 the Minister may make, or after he has been deprived of superannuation on that ground, an action in court for damages for wrongful dismissal, and there presumably the local authority could plead res judicata against him.'' Though there are few decisions where the courts had to determine whether there were good grounds for dismissal of a public servant it may be said that as a general rule they will not redetermine the issue de novo but exercise only their supervisory jurisdiction which, however, gives them plenty of Paocmum FOR SUMMARY DISMISSAL This Herence between the ordinary case of master and servant in private law where the court determines what constitutes wrongful dismissal and the cases of employment by public authorities where the employer determines the grounds of dismissal is of profound importance to the question of procedure before dismissal. Where the court determines the grounds for dismissal the servant will have the opportunity to put his case before the court. This may not be the ideal tribunal for determining these questions but it does provide an opportunity for a hearing. As Lord Reid said 12 (iasa) 18 Q.B Smith v. MoNallg [191!2] 1 Ch. 816, Hanson v. Radoliffe Urban Didt7ict COU~O~Z [ma a ch i Short v. Poole Corporation [1926] 1 Ch. 66. Fennel1 V. East Ham Cor Ch [iw~] a W.L.R fm. 7ai. 17 At p but see Barnard v. National Dock Labour Board [1953] 2 W.L.R. 995 where McNair J. seemed to usurp the function of the National Dock Labour Board. 19 See [1964] P.L. 367.

4 MAY 1967 PUBLIC LAW AND DISMISSAL FROM EMPLOYMENT 291 in Ridge v. Baldwin 20: So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. He then continued, But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. This analogy is, it is submitted, false. As we have seen above 21 it is no longer true to say that the courts redetermine the grounds of dismissal in such cases but concede jurisdiction to do so to the administrative body concerned subject to the supervisory jurisdiction of the court. The exercise of such a discretion would seem to fall squarely into Lord Atkin s definition of a judicial act in R. v. Electricity Commissioners 22 as an authority 4 to determine questions affecting the rights of subjects yy and should therefore be subject to the rules of natural justice. This was of course the principle which was applied in Ridge v. Baldwin itself, but Lord Reid was very careful to point out that this was a case of dismissal from an office and that the chief constable was not the servant of the watch committee or anyone else.= His view was followed in Vidyodaya University Council v. Silva 24 where it was held that a university professor could not demand to know the nature of the accusations against him or to be heard in his own defence when his appointment was terminated. The Vidyodaya University Act provided that a teacher could be dismissed on the grounds of incapacity or conduct which in the opinion of not less than two-thirds of the members of the Council, renders him unfit to be an officer or teacher of the University. 25 It was therefore clear that discretion to determine the grounds for dismissal was vested in the Council.2e Nevertheless it was treated as an ordinary case of master and servant where, if the master wrongfully ends the contract then the servant can pursue a claim for damages. 27 This is an illusory right in this case where the opinion of the Council will be practically unassailable in a court. It is interesting to compare this case with Fisher v. Jackson 28 where under a trust deed a schoolmaster could be removed if two vicars were satisfied that he was negligent in his duties. It was held that he was entitled to a hearing. This case was distinguished in the Silva case as one where the plaintiff was the holder of an But this is merely attaching a IabeI to the reiationship W.L.R. 935, K.B. 171, s At p rig651 1 W.L.R S. 18-(e) 26 See Bradley [1965] C.L.J. at p At P. 79F. 2s [lscfl] 2 Ch Notes

5 292 THE MODERN LAW REVIEW VOL. a0 which does not affect the substance of the matter. The important fact is that if the employer has a discretion to determine the grounds for dismissal, he should obey the rules of natural justice. In most cases of private employment this is not the position but in the exceptional case like London Tramways Co. Ltd. v. Bailey 8o there ought to be a hearing as was in fact held in the later case of Armstrong v. South London Tramways Co. Ltd.81 In the case of employment by public authorities it is far commoner to find the grounds for removal expressly stated and to leave their application to the body concerned. In such cases the rules of natural justice ought to be obligatory regardless of the label which is attached to the relationship. In many areas of public employment such a hearing is in fact provideds2 and it is not unknown even in the private sector.as DISMISSAL AT PLEASURE The commonest case in practice where a servant is dismissible at pleasure is the Crown servant. Here there in fact exists an elaborate hearing procedure before dismissal, but this has been held to have no legal force as it would be a clog on the right of the Crown to dismiss at pleasure. This rule which is defended on the ground of executive necessity has been severely criticised for its sweeping application to all Crown servants,a5 but it is a legal myth which bears no relation to reality.8b Where a person other than a Crown servant is dismissible at pleasure should he be entitled to a hearing on the basis of the foregoing argument? The authorities conflict on this question. Lord Reid stated in Ridge v. Baldwin : It has always been held, I think rightly, that such an officer (who holds an office at pleasure) has no right to be heard before he is dismissed and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason.... No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to W.L.R. 77, ME. 80 t1877) 3 Q.B.D (1890) 64 L.T e.g., teachers; see for example for Direct Grant Schools, S.I No. 1832, art. 21 (4). University teacher-ee for example Universtiy of Southampton Charter, 2nd Sched. B. 32. Dockworkers-see S.R. k No. 1189, Hospital Consultsntp-see Barber V. Manohester Regional Hospital Bod [1958] 1 All E.R. 322, 32SD. For the position of hospital employees in Scotland see Palmer v. lnverness Hospitals Board, 1963 S.C. 311, where the ministerial circular providing for appeals against dismiseal was held to import the rules of natural justice into the dismissal procedure. 33 As in the case of the old railway companies see Tomlinson v. L.M.S. r All E.R a.4 Rodzoell v. Thomas [1944] K.B. 596, Mitchell. I The Contracts of Public Authorities, p See Blair [1958] P.L [1963] 2 W.L.R. 935,

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