No Such Concept as 'Self-Dismissal'

In Zulhayir v JJ Food Service Ltd., the Employment Appeal Tribunal (EAT) held that an employee was not ‘self-dismissed’ because he failed to respond to a letter from his employer stating that he would be taken to have terminated his employment contract by his own volition if he did not reply.

Mr Zulhayir was employed by JJ Food Service Ltd. as a delivery driver. Following an accident at work in January 2005, he was absent on long-term sickness leave. In June 2006, in an attempt to find out his intentions with regard to his employment, JJ Food Service sent him the aforementioned letter by recorded delivery. Mr Zulhayir had moved, however, and had failed to inform his employer as required by the employee handbook. The letter was returned by the Post Office and the company made no further efforts to contact him.

In June 2005, Mr Zulhayir had instructed solicitors to act for him in a personal injury claim against JJ Food Service. It was not until May 2009 that Mr Zulhayir received the letter of June 2006, when it was sent to him with a letter from the solicitors acting for the company in regard to this claim.

Mr Zulhayir lodged claims of unfair dismissal and breach of contract on 28 July 2009. At a pre-hearing review, the Employment Tribunal (ET) held that his failure to inform his employer of his change of address or to make arrangements to have his post forwarded amounted to an implied termination by him of his contract of employment. His claims were therefore struck out as being out of time. Mr Zulhayir appealed.

When the appeal was heard, JJ Food Service argued that there was no dismissal because Mr Zulhayir’s employment came to an end by reason of frustration of contract. Frustration of contract occurs when the contract ceases because it is no longer possible to perform it. In this case, because Mr Zulhayir was not able to be contacted, JJ Food Service could not continue contractual relations with him. Mr Zulhayir objected to this, however, and the EAT held that it would not be right to allow the employer to advance a new argument at this stage of the proceedings.

The EAT held that the ET had erred in law by following an outdated approach to the case. More recent case law has established that repudiation by one party cannot terminate a contract without acceptance by the other party. Repudiation by the employee must be accepted by the employer, whereupon the contract is terminated by the employer in circumstances amounting to dismissal.

In this case, no effective steps were taken by either party to terminate the contract until May 2009, when the June 2006 letter was sent to Mr Zulhayir enclosed with the correspondence from JJ Food Service’s solicitor. This was the first opportunity Mr Zulhayir had of knowing that the company no longer wished to be bound by the contract. It therefore followed that the complaints of unfair dismissal and breach of contract were brought in time.

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