| Commentary

(7) Statutory dismissal

| Commentary

(7)     Statutory dismissal

It is legally possible for there to be two termination dates: one for common law purposes and another for statutory rights.

For statutory purposes (especially unfair dismissal and redundancy payments), it matters not whether it is the automatic theory or the elective theory which is correct.

'Dismissal' for the purposes of unfair dismissal and redundancy payments includes (ERA 1996 ss 95(1)(a), 136(1)(a)) the case where 'the contract … is terminated by the employer (whether with or without notice)'. Is that to be taken to include wrongful dismissal by the employer (with or without notice)?

In the past this issue was potentially bedevilled by the uncertainty as to how a repudiated contract of employment actually ended. If the automatic theory was correct, then wrongful dismissal was indeed effective to terminate the contract, whatever the employee says. If, however, the acceptance theory was correct, then wrongful dismissal by the employer would not terminate the contract: the contract would be terminated by the employee if and when the employee expressly or impliedly elects to

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