I.C.R. 355.Court of Appeal
The employee went absent from work without leave, in order to go to Jamaica on family business. He was away for 7 weeks. The employers wrote to his English address and said if there was no reply, they would assume that he no longer wished to work for them. Later, having received no reply, they wrote again, saying they had removed him from the books. Clarke claimed unfair dismissal, and the industrial tribunal found in his favour.
The Court of Appeal allowed the employer's appeal. The decision of the industrial tribunal was perverse. The majority (Templeman and Dunn L.JJ.) held that there was a dismissal (when the employer removed Clarke from their books, i.e., they adopted the elective theory), but that the dismissal was not unfair.
Lord Denning M.R., however, reached the same result by application of the automatic theory. He held that there was no dismissal: where the misconduct of the employee is such as to be completely inconsistent with the contract of employment, the employee is to be regarded as terminating the contract. The automatic theory applies for ordinary repudiatory breaches of contract: the employee had dismissed himself.
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These notes were last updated on 26 Nov 97.
Mail Paul ToddSLAPNT@cf.ac.uk