McDonald v Parish of St Helier

CourtRoyal Court
Judgment Date03 June 2005
Neutral Citation[2005] JRC 74
Date03 June 2005

[2005] JRC 74


(Samedi Division)


M. C. St. J. Birt, Esq., Deputy Bailiff with Jurats Allo and Newcombe.

Ralph George McDonald
Parish of St Helier

Advocate D F Le Quesne for the plaintiff

Advocate M J Thompson for the defendant


Malloch v Aberdeen Corporation (1971) 2 All ER 1278 at 1282).

Addis v Gramophone Company Limited (1909) AC 448 at 490

Ridge v Baldwin (1964) AC 40 at 65

Johnson v Unisys (2001) 2 All ER 801 at 816 paras 38–42.

Gunton v London Borough of Richmond upon Thames (1980) IRLR 321.

Focsa Services (UK) Limited v Birkett (1996) IRLR 325.

Boyo v London Borough of Lambeth (1995) IRLR 50.

Janciuk v Winerite Limited (1998) IRLR 63.

Malik v Bank of Credit & Commerce International SA (1997) 3 All ER 1.

Eastwood v Magnox Electric Plc (2004) 3 All ER 991.

Reda v Flag Limited (2002) IRLR 747.

Employment (Jersey) Law 2003.

Bailiff DEPUTY

In this case Advocate Le Quesne submits that the Court should take the opportunity of effecting a significant change in the law relating to damages for wrongful termination of employment. Mr Thompson argues that that is a matter for the legislature.

The factual background

The plaintiff was employed as a driver/labourer by the Parish of St Helier (“the Parish”) with effect from 22 nd March 1990. His letter of employment incorporated by reference the conditions of employment (“the conditions”) laid down by the States of Jersey Manual Workers' Joint Council (“the Council”). The conditions provided that the contract was terminable on a period of notice by the Parish varying with the length of service; on the facts of this case, eight weeks. The conditions also provided that where misconduct was alleged, there was a disciplinary procedure.


This procedure provided that, in cases of gross misconduct, there was to be an initial disciplinary hearing by officers of the Parish. An employee had a right of appeal, in accordance with the procedure for the settlement of differences contained in the Council's handbook, to the relevant committee of the Parish. A further appeal then lay to the Disputes Committee of the Council. This was an outside body whose members would not be officers or employees of the Parish. The decision of the Disputes Committee was expressed to be final and binding upon the parties.


The plaintiff had longstanding problems with his back. According to figures produced by the Parish, he was off sick for a total of 587 days between March 1990 and the termination of his employment in 1999 i.e. over two working years in total. Although it is not relevant to the decision, there were in fact additional days taken off because of his activities as the trade union representative for the Parish.


In 1996 it became clear that he could not continue to perform his duties as a driver/labourer in view of his back condition. We have heard evidence, inter alia, from the plaintiff and from Mr Martin Roberts who was personnel director of the Parish in 1996 and Deputy Greffier with responsibility for personnel and human resources by 1999. They both agreed that the Parish made great efforts not to dispense with his services in 1996. It created a job especially for the plaintiff. It fell into two parts. In the mornings he acted as a cleaner; in the afternoons he acted as Work Scheme Chargehand. This was a position of trust. It involved checking and supervising the work scheme operated by the Parish for able men receiving welfare payments whereby they swept and generally kept clean the streets of St Helier. The plaintiff's job description made it clear that the chargehand had to supervise the men by constantly checking that each man on the scheme was working where he should be and doing what he should be doing. The job description ended by saying “The success of the work scheme is entirely dependant on the integrity and conscientiousness of the chargehand because of the varying ability and calibre of the operatives.” The plaintiff fully accepted in evidence that it was a position of trust.


In November 1998 it came to the Parish's attention that the plaintiff was taking unauthorised absences when he should have been supervising the work scheme. Observations were kept which showed that, over five consecutive days, he took a total of nine hours of unauthorised absence.


A disciplinary hearing was convened and on 7 th April 1999 it was resolved to summarily dismiss him without notice on the grounds of gross misconduct. In accordance with the conditions, the plaintiff appealed to the Establishment Committee of the Parish. That Committee held a meeting on 10 th May and upheld the decision to summarily dismiss him for gross misconduct.


The plaintiff then appealed to the Disputes Committee. On 7 th June the Disputes Committee upheld his appeal. Whilst noting that the Parish was justifiably disappointed at the abuse of its trust, in particular by a trade union representative, it considered the decision was too harsh, particularly in view of the previous record of the plaintiff and of the fact that no warnings had been given. The Disputes Committee decided that the plaintiff should instead be issued with a final written warning, be required to repay the wages he had received during his unauthorised absences and be suspended without pay for one week.


The Parish put the second and third aspects of this decision into effect but not the first. On the contrary, on 16 th June 1999 the Constable wrote to the plaintiff to the effect that the Parish was dismissing him with eight weeks' payment in lieu of notice. It is agreed that this was the required period of notice under the contract and that the plaintiff has received the relevant sum.

The nature of the dispute

In January 2001 the plaintiff issued an Order of Justice. This was subsequently amended. In broad outline the plaintiff alleges that, by dismissing him in June 1999, the Parish has breached three implied terms of the contract as follows:–

  • (i) that disciplinary matters should be dealt with solely in accordance with the provisions set out in the conditions i.e. it was bound by the decision of the Disputes Committee;

  • (ii) that the Parish would not, without reasonable and proper cause, conduct itself in a manner which was likely to destroy and/or damage the relationship of trust and confidence between employer and employee;

  • (iii) that the Parish would not terminate the plaintiff's employment without good reason and would only do so in good faith i.e. would not unfairly dismiss the plaintiff.


In its answer the Parish accepted that there was an implied duty of trust and confidence between the Parish and the plaintiff but denied the existence of the other two implied terms and denied any breach of any of the alleged implied terms. Subsequently the Parish admitted that it had acted in breach of contract on the basis that the plaintiff's dismissal was contrary to the disciplinary process provided for in the contract (in that the Parish had not acted in accordance with the decision of the Disputes Committee) and that the plaintiff was entitled to damages on that basis.


Accordingly, by the time the matter came to trial, there was no issue on liability. The Parish admitted having breached the contract of employment. The issue which remained was as to the quantum of damages which should be awarded for such breach. Both sides accepted that the longstanding position under English common law is that damages in such cases are limited to the wages for the required period of notice to terminate the contract. As the plaintiff has received eight weeks' wages in lieu of notice, the Parish argues that he is entitled to nothing more. The plaintiff, on the other hand, argues that the Court should develop the common law so as to permit the plaintiff to recover his real losses, namely the continuing loss of income until he reaches 65 and the loss of his pension rights.


Both parties agree that there is no previous judicial decision in Jersey which deals with the point; nor do either of them suggest that is any principle of Norman or French law which is of assistance. On the contrary, both are agreed (correctly) that in matters relating to damages for breach of contract, the Court has traditionally looked to English law for guidance.

The established common law

Mr Le Quesne admitted in both his written and oral submissions that he was asking the Court to take a very different approach to that which has been established for a very long time. We must begin therefore by summarising the established law. Happily, on this, there was no dispute between the parties.


Under the established law, damages for dismissal in breach of contract are limited to the amount the employee would have earned had he been given proper notice as provided for in the contract. The reason for this is that the employer has an unfettered freedom to dismiss an employee at will, with or without reason, provided that the contractual notice period is given. The employer can act unreasonably or capriciously if he so chooses but the dismissal is valid (per Lord Reid in Malloch v Aberdeen Corporation (1971) 2 All ER 1278 at 1282). To any claim by an employee that he has been dismissed without the proper notice or otherwise in breach of contract and that he should have damages for loss of earnings extending beyond the notice period, the employer can reply that he has the legal right to dismiss on notice at any time (with or without reason or without having to give any reason) so that the employee cannot prove on the balance of probabilities that his employment would have continued beyond the notice period. On the contrary, given that, by definition, the employer has decided to dismiss the employee, the high probability is that the employer does not wish the employment to continue and would therefore exercise...

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