Birrell, Rodney v Australian National Airlines Commission [1984] FCA 419

Federal Court of Australia|1984-07-01|Before: Gray J

Employer and employee - contract of employment - notice of termination - whether capable of unilateral withdrawal - whether withdrawn by consent.

Evidence - refreshing memory - document used outside court -

whether cross-examiner can compel production of document.

Conciliation and Arbitration Act 1904 s. 119, s. 882, s. 28, s.

Mather v. Morgan £1971] Tas.5.R. 192 R. v. Pachonick £19731 2 N.S.W.L.R. 86

Emerv_ v. Commonwealth of Australia [19631 V.R. 586

The Australian Wool Selling Brokers Employers' Federation v. The

Federated Storemen and Packers Union of Australia (1976) 176

C.A.R. 884 Riordan v. War Office £19591 1W.L.R. 1046

Harris and Russeli Ltd. v. Slingsby £19731 I.C.R. 454

Tallerman and Co. Pty. Ltd. v. Nathan's Merchandise (Victoria)

RODNEY BIRRELL v.:' AUSTRALIAN NATIONAL AIRLINES COMMISSION 7th DECEMBER 1984

IN THE FEDERAL COURT 'OF AUSTRALIA VICTORIA DISTRICT REGISTRY ~ : ros

By his application, which was filed on 12th April 1984,

the Applicant seeks the imposition of a penalty for a breach or non-observance of the Airline Pilots' (TAA) Agreement, 1981, an order for the payment of salary, a declaration that the Applicant's employment with the Respondent was not terminated on. 9th or 10th May 1983, or at any other time,-and a declaration. that the Applicant thas been 'continuously since. 9th.May 1983, and.

The Respondent conducts the business of an airline under

the name Trans 'Australia Airlines, or TAA. I shail refer to the -

Respondent as -"TAA".-~-The Applicant was first employed by- TAA - as-+

The Australian Federation of Air Pilots ("the Federation") is a declared body for the purposes of s. 88% of the

Conciliation and Arbitration Act 1904 ("the Act"). By virtue of

this status, the Federation has the right to appear before the

Flight Crew Officers Industrial Tribunal ("the Tribunal"), which

The Airline Pilots' (TAA) Agreement, 1981 ("the Award") is a memorandum of an agreement between the Federation and TAA, certified by order of the Tribunal. By a combination of the definition of "Award" ins. 4(1), and 5s. 28 and 88V of the Act, the Award is enforceable as an award under the Act. By a combination of the provisions of ss. 118A and 119 of the Act, together with those provisions previously referred to, the Court

has power to impose a penalty for a breach of the Award. -

"B. The services of a pilot shall be terminable by either the employer or a pilot -

(1) During the first six months: 'of---service, by = :.-.-

(2) After the completion of six months of service, by one month's notice in writing;

(3) By the payment to the pilot of seven days' or one month's salary in lieu of notice as aforesaid;

(4) By the forfeiture by the pilot of the last seven days or one month's salary paid to hin, in lieu of notice as aforesaid.

provided that nothing shall derogate from the employer's right at common law to dismiss a pilot without notice for misconduct or other sufficient

cause. A pilot who is dismissed shall be given the reasons for such dismissal in writing. 7

summary dismissal or notice, is entitled to have recourse to 16-84 except as provided in 4-20.E."

Clause 4-20E relates only to pilots during the period of their initial service, and is not applicable to the Applicant. Clause 16-84 contains the grievance procedure. This involves a right to hearings at three stages with respect to, among other things, the termination of employment. Certain subjects are excluded from

the grievance procedure, among them being matters relating to

Eariy in 1983, the Applicant was employed by TAA as a first officer on Boeing 727 aircraft. He was assessed by officers of TAA as failing to demonstrate satisfactory command potential. Bytletter dated 19th April: 1983, TAA informed the Applicant of this assessment... A.further.letter,. dated 2lst April 1983, notified the Applicant that he -was watheld from flying operations. The effect of this was that the Applicant continued to be employed by TAA, and to be paid, but was not called upon to

In the week beginning Monday 2nd May 1983, TAA resolved

to terminate the employment of the Applicant. Negotiations "took

place between TAA .and the Federation, of which the Applicant was.

and is a member. : From TAA's- point of- view, these negotiations were an attempt to ensure that the Federation and its members would raise no opposition to the termination of employment of the Applicant. Two senior airline pilots, members of the Federation, were shown TAA's reports on the Applicant's command potential, in an endeavour to satisfy the Federation that termination was

It had been intended to terminate the Applicant's employment, and to pay him one month's salary in lieu of notice, during the week beginning 2nd May 1983. For this purpose, a letter advising the Applicant of these matters was prepared. That letter was not, however, delivered to the Applicant. At the yequest of the Federation, it was agreed to postpone the termination of employment until early in the following week, to give the Federation and the Applicant an opportunity to consider his position. There was some conflict on the evidence as to whether the deadline was put back to Monday 9th, or Tuesday 10th May 1983, or as to whether one of those dates was chosen and later aitered, but it does not seem necessary to decide precisely

what was the -position.:- From the -Applicant's point of:view, he

desired time .to consider whether :.:to suffer termination, or::::

whether to resign his employment and go with.a clean record.

Over the weekend of 7th and 8th May 1983, the Applacant made up his mind. that he «would -attempt: to persuade TAA~ to''.:* reconsider its decision to terminate. his employment. If -he- were unsuccessful in.this,..he would. resign. -~He typed out and .signed a letter, erroneously dated 9th May 1982, which was in the following terms:

Trans Australia Airlines Melbourne Airport Sth May 1982

It is with considerable regret that for personal reasons I hereby resiqn as pilot first officer from TAA with one months notice.

I request that my resignation be effective from today.

On the morning of Monday 9th May 1983, the Applicant attended on Captain Lushey at Tullamarine Airport. It is undisputed that-he asked. Captain.~Lushey=to reconsider the proposed termination of = his-employment, Captain-Lushey ~~2refused ,-~~-- and the Applicant 'handed: over:the -better:- - At. the time he 'did to; -- he fully intended:: to resign. With respect .to much 'of this ..

conversation, there is a conflict of evidence; it -will be

necessary to examine the evidence in detail at a later stage.

As a result of the receipt of this letter, Captain Lushey gave instructions to Mr. O'Rourke, TAA's Flight Administration.Manager., to: prepare a letter. -in response. This instruction was probably given during the -afternoon -of- Monday 9th May. Having examined the letter, Mr. O'Rourke raised with Captain Lushey what he saw as a problem. I shall discuss in detail later the precise characterization of this problen. It

Asa result of his conversation with Mr. O'Rourke, Captain Lushey telephoned the Applicant just after 5.00pm on that day. There is a conflict between the Applicant and Captain Lushey as to what was said in that conversation, and its content

is crucial to the outcome of the proceeding. [I shall discuss it

During the afternoon of 9th May, Mr. O'Rourke prepared a letter to the Applicant, which was to be signed by Captain Lushey. The signing and sending of this letter was delayed by an error which appeared in its .text, when it was first printed out by the word processor. In the result, the letter was signed by

Captain Lushey on the morning of 10th May, and posted in an

official post box at Tullamarine airport prior to 10.00am that .

day. As drafted, the ietter' was.intended 'to be:--piaced in-a

pigeon hole assigned to the Applicant at the Tullamarine Airport,

Apparently, it was decided that this would be inappropriate, 50

the letter was placed in an envelope addressed to the Applicant and posted. Unfortunately;'the address on the:.envelope was an address at which; the Applicant had ..lived prior to.August - 1982, but at which he no longer resided. As a result, the letter was

not received by the Applicant in the ordinary course of post.

On the evening of Monday 3th May, the Applicant contacted Mr. Coysh, the Executive Director of the Federation, who had been in Sydney during part of the weekend and part of that day. On the morning of 10th May, the Applicant attended at the offices of the Federation in South Melbourne, and spoke to Mr. Coysh. Mr. Coysh expressed concern about the Applicant's resignation; his view was that the Applicant should accept termination and avail himself of the grievance procedure, if it were applicable to his particular case. The Applicant and Mr. Coysh decided to try and retrieve the letter of 9th May. The Applicant went to Tullamarine Airport for this purpose. Captain Lushey had flown to Sydney, and the Applicant saw Mr. O'Rourke. Mr. O'Rourke asked Captain Davidson, TAA's Flight Superintendent, Line Operations, whose office was next door to Mr. O'Rourke's, to join them. The question of termination of employment of a pilot was not part of Captain Davidson's responsibilities, but Mr. O'Rourke felt -that.: there. ought to -be - more.than:one [TAA officer present during. -his: conversation: with -the Applicant. :-Ttiuis. cemmon ground that the Applicant asked for the return of his letter of

Sth May, and that Mr. O'Rourke refused this request. 'It is aiso

common ground that the Applicant was told that a letter had been

sent to him, and was invited to examine the file copy of that

letter. He declined this offer. Again, as to other features. of this conversation, there is conflict, but its resolution is not

The Applicant went back to the offices of the Federation, where he and Mr. Coysh drew up a letter. This letter was signed by the Applicant, who then took it back to Tullamarine Airport, and delivered it to Captain Lushey's secretary. The

Trans Australia Airlines, MELBOURNE ATRPORT VIC. 3045

I refer to my letter of 9th May, 1983 and your subsequent advice that the resignation could not be accepted in its present form.

Pending the re-drafting of the letter please disregard my correspondence of 9th May, 1983. (1982)

This letter was freely acknowledged by Mr.-Coysh in His "evidence to have been a:"ploy" to get back the letter of -9th 'May, not for the purpose of redrafting, but-for the purpose of withdrawing any notice of termination. The Applicant's letter of 9th May was not

On 13th May, the Applicant delivered another letter to Captain Mar, 'the Senior Regional. Captain, Southern. Region, . of ' TAA, at Tullamarine Airport. 'This-:-letber was -in the - following.- -

Capt. S.R.H. Marr, Csic.J Senior Regional Captain, Sourthern Es1c.3 Region, T.A.A,

Pursuant to Section 16-84B.Step 1 (i) of the Airline Pilots' (T.A.A.) Agreement 1981, I hereby advise that I consider myself adversely affected by your decision to withhold me from service on 21st April, 1983. In your letter of that date you said, inter alia, "pending clarification of your circumstances, you are hereby advised you are withheld from Flying Operations".

Since that time, and having regard to my employment record in T.A.A. over the last five years and three months, the circumstances have not been clarified, indeed they have become somewhat confused.

Accordingly I request you to initiate action to clarify

the position once and for all by returning me to the line.

On the same day, 13th May 1983, - Captain Lushey wrote to..the:- Applicant a lengthy -letter, purporting to. set out the events

which had occurred. This letter advised that the Applicant's

resignation "has now been put into effect and as earlier advised,

your final payments will be made available to you on the return of all TAA property." This letter was sent to the Applicant's

correct residential address...It arrived on 19th May, at the same time as Captain Lushey's letter, which had been. signed on the morning of 10th May, and posted to the wrong address. That

First Officer R.P Birrell C/- Senior Regionil Captain, Southern Region,

I Poustinnee reeipt of your letter dated Sth May, 1983 an which youtendered your resignation as of the Flight Staff. # member

This letter confims the receipt of your resi i which w1ll take 'ffect from the close of businese on

time to the Senir Regional Captain, Southern' Region items of equipmer such as J.D. Card, car park/locker keys, manuals ancuniforms which are currently in your care. This will facilitate a prompt calculation of

Tax will not be é¢ducted from your final Superan i payment unless avised to the contrary. ° muation

G.W. Lushey, & ie as Line Operations light Manager". .2..- sanare-

On 24th Ma 1983, a cheque was prepared for the U Applicant. A calculaon of the amount of this cheque included

one month's pay inlieu of notice, superannuation, accrued

recreation leave entitlements, and certain other minor amounts. The cheque has never been sent to the Applicant.-..It appears that TAA has withheld it on the basis that. the Applicant is still in

At a date which has not been established by evidence, the grievance procedure was put into effect with respect to the Applicant. Tt is not clear precisely what question was the subject of this procedure. At all events, the chairman of the appeal board hearing the alleged grievance cast his vote in favour of the view that the board had no jurisdiction, on the

ground that the Applicant had resigned his employment.

In October 1983, there was a further exchange of correspondence. On 13th October, the Applicant wrote to TAA to say that he was ready for assignment to flying duties. Mr. Reynolds, the Industrial Relations Manager of TAA, replied on 24th October, claiming that the Applicant's employment had ceased on 9th May 1983. He also repeated the request to the Applicant to return ali TAA property, and indicated that final payments

The Applicant has not, since 9th May 1983, undertaken

any other employment,.. exceptifor a hobby business.which. he ...had .-

run while he was performing-flying duties.:.-:.- . i1_7

A problem arose in the .course of evidence given by

Captain Davidson. In cross examination of Captain Davidson by

Dr. Jessup, who appeared for the Applicant, the following exchange occurred: Question: "In-some of: the matters you -have been giving evidence about, Mr.:Davidson, you have chad a fairly. good- - recollection of who said what and what happened at various times?" Answer: "Yes." Question: "And on some of the other matters you have been unable to recall things or a bit uncertain about your recollection?" Answer: "Yes." Question: "Have you spoken to anyone other than TAA's legal advisers about the evidence you are to give in this case?" Answer: "No. I think I can explain why I am more accurate or more sure of what I am saying in some areas. In order to prepare for a grievance board hearing on the same subject in duly of last year I was asked to make out a statement covering the events of Mr. 0O''Rourke's office on the .Tuesday afternoon, or on the 10th. Consequently I have been able to refer back to that statement and therefore my mind is refreshed on those matters, but not on other matters that have been raised on other days... wee Question: "Do' you have a''copy.of.that.with you?".. oe Answer: "I have got a copy in my brief case.". -- Question: "Could I have a look at it, please?" Mr. Young, appearing for TAA, objected to the witness being

required to produce his statement. I heard argument on the

objection, and ruled that the document should be produced to Dr. Jessup. It was 50 produced. I cannounced that I would give my

The document concerned was document No. 30 in the list of documents filed on behalf of the Respondent on 3rd July 1984, and verified by the affidavit of John Denis O'Rourke, sworn on and July 1984. In the list of documents and affidavit, a claim was made for privilege against production of various documents, including document No. 30, on the ground "that the disclosure may incriminate the Respondent". No claim was made for privilege from production of any document on the ground that such document may tend to subject the Respondent to the penalty claimed in the proceeding. The distinction between this privilege and the privilege against self incrimination was referred to in an interlocutory judgment given in this proceeding, on 26th June

The question before me was whether a witness who had used a document to refresh his memory, before entering the witness box, could be compelled to produce the document for the purpose of inspection by cross-examining counsel. It is well established that a witness whose memory is refreshed by means of

a document while :the. witness is: giving evidence can be required

to produce the document, .without -the party.. requiring its .

production being compelled to tender the document. Refreshment of memory in the witness box is subject to certain restrictions, notably that the document must be reasonably contemporaneous with

the events as to which evidence is given, and must have been made

or checked by the witness. See generally Cross on Evidence,

Refreshment of memory outside court, before giving evidence, is not subject to the same restrictions; itis in the nature of things that a witness may look at any document for the purpose of refreshing memory, whether such document be the witness's own or some other person's, and whatever its date may be. Perhaps for this reason, there has been some controversy as to whether, and in what circumstances, a document used to refresh the memory of a witness outside court needs to be produced. This was one of the guestions dealt with by the Full Court of the Supreme Court of Tasmania in Mather v. Morgan £1971] Tas.S.R. 192. In their joint judgment, at pages 196-207, Burbury C.J. and Neasey J. (with whom Chambers J. expressed agreement on this point) dealt at some length with the authorities. Their Honours'

"In our view the decisions which clearly establish the right of cross-examining counsel to inspect a document used in the witness box by a witness to refresh his memory justify the conclusion that he should be given the opportunity to exercise the same right in relation to a document used by the witness to refresh his memory before he comes into court. The rationale of the decisions is that in the interests of justice cross-examining counsel should be able to check the source of the witness's memory. stimulus, and test the

' reliability of the witness's oral testimony by reference to it. vee

In our opinion' it. is not possible to 'lay:down a thard and: -- - fast rule that the document must _always be produced. For example, the document may not. be in the control of the witness (as it is when he uses it in the witness box). It may have been destroyed or become unavailable Since it was used to refresh memory. Upon the assumption, which we make for present purposes, that a document used to refresh memory out of court may be any document (not being confined to & contemporaneous record made by the witness) it may contain matter which it

would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side.

However, we are satisfied -that this court -should affirm- -

the general rule to be-- that in the absence of any :good: -- =:

reason to the contrary -the document should be produced on the cross-examiner's demand. This is a procedural rule and not one going to admissibility, because the evidence is admissible whether the document is produced or not, in contrast to the situation where the witness has no independent recollection apart from the document. If there is a legitimate reason for its non-production, therefore, that fact can only according to circumstances affect the weight of the testimony. If the court hearing the matter takes the view that the document should be produced, we-are-of opinion--that- it is --within the court's inherent jurisdiction to direct that cross~examining counsel be permitted to inspect it, Since this is a direction to a witness for the purpose of enforcing a rule of practice."

A similar approach was taken by Lee YF. in R.v. Pachonick £19731 2 N.S.W.L.R. 86, at page 88, where his Honour said:

",...there is no basis which can be urged as to why there should be a distinction between the practice which

applies when the witness refreshes his memory in the witness box as compared with the case where he does it

In my view, I should follow these decisions. The interests of justice clearly dictate that every possible safeguard should apply when a witness gives evidence after having

refreshed his 'or 'her:memory 'from a:document..: The reasons which .

lie behind the rule -requiring production .of -a document used -hy _a.. |

witness to refresh his or" her memory in*the witness box apply - with even greater force when the refreshment of memory has taken. place outside the court. It is even more important that cross-examining counsel be permitted to inspect the document used

to refresh memory if that document may not be a contemporaneous

account of the events concerned, and may not be a document in the

production of 'which the witness has played any part. -

Mr. Young did' not seek: to cargue that-: the=privilege., ..

against self incrimination was applicable. In my view, the failure to claim any other privilege from the production of Captain Davidson's statement at the time when discovery of documents was given constituted a waiver of any such other privilege which might have existed. No question therefore arises whether privilege would override the requirement to produce a document for inspection by cross-examining counsel in the

In argument before me, reference was also made to Collaton v. Correll £19261 S.A.S.R. 87, King v. Bryant (No. 2) Ci956] St.R.Qd. 570, and R. v. Alexander £19751] V.R. 741. Each of those cases was concerned with a question different from that which arose in the present case. Those cases dealt with questions such as whether the evidence of a witness who has refreshed his or her memory outside court is admissible at all in the absence of production of the document, whether or not production is requested by cross-examining counsel. For this reason, it is unnecessary to engage in further discussion of

The facts of this tase, which I have already set out in

broad terms, may lead to any of the following three results:

The Applicant''s employment was terminated on 9th May

1983; this would result if his letter of 9th May were

construed as giving notice of termination of the contract of employment in accordance with clause 4-20B(2) of the Award together: with a request:-for -waiver - of the period of motice,.dn taccordance with the...proviso. ~..:, to clause 4-20(B), and TAA agreed to that request.

The Applicant's employment was terminated one month after 9th May 1983; termination by this means would occur if the Applicant's letter of Sth May constituted

notice of termination of the contract of employment, but

if no agreement for waiver of the period of notice resulted.

The Applicant's employment was never terminated; this result might be achieved in a number of ways. If any notice of termination of employment were validly withdrawn, either unilaterally, or by consent, no termination would result. In addition, if no valid notice in accordance with clause 4-20B of the Award were ever given, and if the letter of 9th May 1983 did not ' amount to a repudiation by the Applicant of his

contract, or if any such repudiation were -never accepted . by TAA as bringing the contract to.an end, the contract would continue as a matter of law. See Turner v.

Australian Coal and Shale Employees Federation, Federal

Court of Australia, u:constbituted by Evatt,.Northrop - and. '

Mr. Young contended for the first or second possibilities. In the event that the third was found to have

existed, he argued that the only entitlement of the Applicant

would be to damages as if he had been wrongly dismissed, and that this amounted to the equivalent of one month's salary in lieu of notice. Dr. Jessup argued for the third possibility. His .case was that the contract of employment remained and still remains on foot, and that the Award entitles the Applicant to continue to be paid each month the guaranteed minimum pay applicable to a pilot who is not called upon to perform any flying duties. Dr. Jessup also sought a declaration that the contract was still on foot, on the basis that such a declaration would force TAA to take steps to terminate the contract, if it wished to rid itself of the Applicant, and those steps would entitle the Applicant to pursue the grievance procedure, if that procedure is otherwise

The resolution of the issues in this matter has not been made easier by reason of the way in which the participants seem to have perceived events as they took plate. Comparing the Applicant's letter of 9th May 1983 with clause 4-20B -of the Award, it would have been reasonable to conclude that the letter constituted notice of termination of the contract of employment, coupled with a request that the period of . notice be waived by TAA. The Applicant gave evidence that this was his intention in drafting the letter. No-one at TAA, or at the Federation, seems

to have undertaken -a comparison of the - letter and the Award --in

any detail, or -to-have dealt 'specifically. with the letter. in this.

way. In addition, the Applicant and all who saw the letter of 9th May seem to have assumed that it involved a request that the Applicant receive one month's salary even if he ceased to be

employed on that day. On its face, the letter does not say that.

Nevertheless, the Applicant believed that he was asking for a month's pay, Captain Lushey seems to have thought the same, and

it was this very assumption that caused Mr.--O'Rourke 'to raise

with Captain Lushey'--on the afternoon of 'Sth May.the problem of

Dr. Jessup argued that the Applicant's letter of 9th May was totally ineffective as a notice of termination of the contract of employment under clause 4-20B of the Award. His argument was that the letter must be read as a whole, and as understood by all parties. So read, it amounted to notice of immediate termination of the contract on the basis that the Applicant would receive one month's salary. Because the Award makes no provision for termination by a pilot in this fashion, it

There are problems in reading the letter in this way. If it did not amount to a notice under clause 4-20B, the letter may have amounted to a repudiation of the contract of employment. If construed in the way contended for by Dr. Jessup, the letter demonstrated an intention on the part of -the Applicant no longer to be bound by his contract of employment. If such a repudiation

were accepted by TAA, that would bring the contract to an

immediate end, -without any -'entitlement- on -the -part --of - the -

In any event, the language of the letter is inappropriate to the argument put forward by Dr. Jessup. The

first paragraph of the letter is clearly phrased in terms of the

right which the 'Applicant had to give notice of termination of the contract, pursuant to clause 4-20B of the Award. The second paragraph is worded as _a request; the change of:language is important. In my view, on its true construction, the letter amounted to the giving of one month's notice of termination by the Applicant, together with a request for that period of notice to be waived. If there were no agreement by TAA to waive the period of notice, that period would run its course hefore the contract was terminated. Although the subjective intention of the maker of a document cannot be taken into account in its construction, I note that, on his own evidence, this is what the Applicant understood and intended when he drafted, signed and delivered the letter. Any failure on the part of officers of TAA

to perceive the true nature of the letter cannot alter its legal

The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice. It is clear that such a notice could be withdrawn by the consent of both parties to the

contract; it seems unnecessary to determine whether,--in the case

bf withdrawal _.of:: aunokice 'by consent, the .existing = contract

continues or a new contract comes into being. A question does arise, however, whether unilateral withdrawal of a notice is possible. There is surprisingly little authority on this

question. It has been assumed in some quarters that Emery v.

Commonweaith of Australia [1963] V.R. 586 decided that unilateral withdrawal of a notice is not possible. . An examination of the report of thab case, especially at pages 589 and:590, indicates that counsel for the Commonwealth conceded that the ~ Commonwealth could not have withdrawn unilaterally the notice which it had given; the case seems to have proceeded on the footing that that concession was correct. Reliance was placed upon Emery by Moore J., the President of the Australian Concilation and Arbitration

Commission, in The Australian Wool Selling Brokers Employers'

Federation v. The Federated Storemen and Packers Union of

Australia (1976) 176 C.A.R. 884. In that case, his Honour heid that a purported withdrawal of notice of termination is in law no more than an offer to treat for a new contract; if that offer is not accepted, the original notice continues and the employment is terminated. In Riordan v. War Office £19593 1 W.L.R. 1046, Diplock J. held that certain regulations could not validly remove the right of the Crown to terminate the service of an employee at pleasure. His Lordship then went on to hold that, in any event, notice of termination given by the employee, and purportedly withdrawn by him, was effective to bring his contract of employment to an end. At page 1054, his Lordship said:

employment, whether by employee or employer, is the

exercise of the right under the contract of employment

to bring the contract 'to an end, either immediately or

in the future. It- is .a-+unilateral act, requiring no-= _

acceptance by -the 'other party, and, like a notice to - ;

quit a tenancy, once ~given it cannot-inmy -view be

withdrawn save by mutual consent." A note of the dismissal by the Court of Appeal of an appeal from the judgment of Diplock J. appears in each of £19603 3 A11.E.R.

774, and £19613 1 W.L.R. 210. The latter note (but not' the

former) indicates that the Court of Appeal upheld the finding

that the form of resignation was effective. In Decro-Wall

international S.A. v. Practitioners in Marketing Ltd. £19713 1

"A repudiation and a notice of determination are clearly different things. A repudiation may be withdrawn at any

agreement." These observations, so far as they relate to a notice of determination, can be regarded as not being essential to his Lordship's reasoning, and are made by one member only of the Court of Appeal. Reference should also be made to Harris and Russell Ltd. v. Slingsby £1973] I.C.R. 454, in which the National Industrial Relations Court held that, where one party to a contract of employment gives a notice determining that contract, he or she cannot thereafter unilaterally withdraw the notice. It was held that, where an employee had been unfairly dismissed during the running of a period of notice given by him, he was only entitled to compensation on the basis that his employment would have continued up to the end of the period of notice; the Industrial Tribunal had erred in assuming that the notice could have been withdrawn by the employee, and awarding him compensation on the basis that his employment could have

These authorities all support the view that unilateral withdrawal of a notice of termination of a-contract of employment is not possible. In principle, this conclusion must be correct.

The purpose of providing in a contract for a period of notice of

termination is to enable the party receiving the notice to make

other arrangements. An employee given notice by his or her

employer has a period of time in which to seek another job; - an.

employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both

parties. This conclusion is consistent with authority to the

effect that unilateral withdrawal by a landlord of notice to quit

is not possible: see Tayleur v. Wildin (1868) L.R. 3 Exch. 303.

Dr. Jessup relied on Martin v. Yeoman Aggregates Ltd. £19833 I.C.R. '314,:a decision of the Employment Appeal 'Tribunal,

as establishing an 'exception: to the general rule as to withdrawal :

of notice of termination, where the notice was given by a person ina highly emotional state, and retracted upon recovery from that state. In that case, a director of an employer company had

engaged in an argument with an employee, which resulted in the

director telling the employee he was dismissed. Within five minutes, the director cooled down and retracted the dismissal. The employee insisted that he was dismissed,.-and sought to -pursue his statutory remedies for unfair dismissal. The Employment Appeal Tribunal held that it was possible to have second thoughts, and that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat died down. In the present case, I have no hesitation in accepting that the Applicant was in a state of emotional turmoil; over the weekend of 7th and 8th May 1983, he was involved in making a choice between accepting termination or resigning, a choice which might have profound effects on his livelihood, his family and his future standing as a pilot. All this having been said, I regard

the decision in Martin v. Yeoman Aggregates Ltd. as confined to

its facts, and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly. A principle such as that does not at all fit the present case. The Applicant did not speak in the heat of the moment, but rather took the considered and deliberate step of giving notice to terminate his contract of employment. At the time when he handed over the letter, he did intend to resign. His subsequent reconsideration of this step, in the light of what he..took to. be. the reaction of TAA.to it, does not approximate to-the:action of a person. who, realizing that he has said something -*in anger -'which he-~did::not intend,- immediately

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (256 paragraphs)

Cited By (2)