| Commentary

(1) General law

| Commentary

H.     Termination by breach

In this section we shall look at:

  1.  

    —     The general law of contract where a party is in fundamental breach of it and the application of these general contractual principles to employment contracts (paras [442][442.20]).

  2.  

    —     Summary dismissal of the employee by the employer where the employee is in fundamental breach and what constitutes a fundamental breach (para [443] ff). The legal position is that the concept of fundamental breach will be considered objectively (and must be proved by the employer) and it will be difficult for an employer to provide contractually that a minor breach may justify summary termination. At common law, summary dismissal may be justified by reference to matters discovered only after the employment has been brought to an end. It is for the employer to prove that the employee is in fundamental breach of contract and it is insufficient for the employer to try to argue simply that it held a reasonable belief that the employee so acted.

  3.  

    —     Wrongful constructive dismissal of the employee by the employer where the employer is in fundamental breach (actual or anticipatory) (paras [447] ff). As with dismissal by the employer of the employee, at common law a claim to have been summarily constructively dismissed may be justified by reference to matters discovered only after the employment has been brought to an end.

  4.  

    —     Automatic termination of the contract which (as we said at para

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