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Chapter 4

What is wrongful dismissal?

Wrongful dismissal occurs when the employee is dismissed in breach of the
employment contract. The most likely examples of this are discussed below.

Termination without notice by the employer

Dismissal without the required notice period is known as summary dismissal.
Summary dismissal will be held to be wrongful unless:

 It was due to a fundamental breach by the employee

 The employee accepted shorter notice.

Illustration 8 – Wrongful dismissal

Examples of serious breaches of the contract of employment:

 Wilful disobedience of a lawful order

 Gross misconduct, for example assault on another employee. The
misconduct must usually be carried out at work although, if sufficiently
serious, misconduct outside work would be sufficient

 Dishonesty, where the employee is in a position of trust

 Gross or persistent negligence

 Breach of an express term of the contract or work rules where the
employee has been warned that such a contravention will not be tolerated.

Whether or not summary dismissal is justified is a question of fact based on:

 The standards of ordinary people, and

 The standards prevailing at the time.

Summary dismissal also occurs where an employer is unable to continue to
employ the employee, for example where:

 A personal employer dies

 An employing partnership is dissolved, or

 An employing company is wound up.

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