This "fixed term" contract, that is, for a term of three years. There was no nono notice iven to the plaintiff terminating
the contract in accordance with the above provisions in the contract which govern termination of the contract in this case.
Meaning of Fixed Term
The meaning and effect of 'fixed term' cot has been thoroughly dealt with by the Court of Appeal in l in DIXON and ANOR v BRITISH BROADCASTING CORPORATION (1979) 2 WLR p64.
Since I will be relying heavily on this case in deciding the plaintiff's entitlements, the following passage from the judgment of
LORD DENNING MR in DIXON (supra) at p.650-651 is pertinent to the issue before me:
"Take this present case of Mr. Dixon. His last two contracts were for two months and another for four weeks, each containing
a provision for a week's notice. Whose contracts for a &quo "fixed term"? king e general purposerpose and intention
of the statute, each cach contract must have been employment for a "fixed term" withinmeaning of the statute.&nbs. Otse
you get an absurd posd position. If a man was employed for four weeks (and there was no clause in his contract making it determinable
by a week's notice) he can claim for dismissal when the four weeks come to an end.&nbst by inserting in the contract a clause for
a week's bsp; notice employer can gcan get rid of any employee under the statute when the period of four weeks comes to an end.
On the other hand,he emploemployer, within the four weeks, determines it by oek's notice. then he will bill be liable to answer
a complaint of unfair dismissal. It would mean th employer oyer could alwayse the Act by inserting a si a simple clause "determinable
by one week's notice." That can have been the inhe intenti the legislature at all. The wordot;a fixed txed txed term" must include a specified stated term even though the contra determinable by notice within
its term". (underlining mine for emphasis)
Lord Denning at p.651 go51 goes on to say that:
"We can and should give a consistent meaning e whole of these provisions by holding that the words ""fixed term"
mean a specified term even though it is determinable by notice within that term."
The Master of the Rolls conclby saying:
"In the result both these men, having been employed under contracts for a fixed can claim that they were dere dismissed. They
can put in a clafore fore a tribunal. Then it we for the employeployer to prove that the dismissal was not unfair and that there
were good reasons for it."
As I stated earlier XON raised the question as to what is the meaning to be attributed to the phrase &qse "fixed term". From whatve stated above
wove with reference to Lord Denning's enunciation of the law, it is abundantly clear that the defendants' argumeat the plaintiff
is only entitled to a month's notice as Counsel has interpreted it dsp; does nld any water.
If the defendants' arguments were to be accepted in this regard, it would "give rise to an intolerable absurdity" as SHAW L.J said in DIXON at p.652 while distinguishing DIXON'S case with an earlier decision of the Court of Appeal in BRITISH BROADCASTING CORPORATION v IOANNOU (1975) Q.B. 781 which had before it, inter alia, an issue whether it was a contract for a fixed term Lord Shaw said that the absurd result that would be produced as a result of the interpretation put in a certain statute that was being
interpreted "in isolation" was not drawn to the attention of the Court in IOANNOU'S case. Lorw said that "it mait
may properly be said that the decision so far as that matter was concerned was per incuriam. It was mer unnecessary fory for the
ultimate determination of the appeal. In my judgment, therefore, with all respect to the view then taken that the decision ought
not to be followed in regard to the meaning of "fixed term&ququot;
Measure of damages
Now to the law e subject of measure of damages.
In the text book TRADE UNIONS EMPLOYERS AND THE/i> by G.S. MORRIS & & T.J. Archer 2nd Ed. para. 3.21 it is stated that:
".....If theoyer does not terminate the contract in accordance with its terms (whether express or impliimplied), the employee
can sue the employer for breach of contract. u>remedy will usually lie lie in damages" (undeng mine for emphasis)
Elaborating on the above statemenfootnote I, they say:
"the employee is entitled to recover the loss which arnaturally in the ordinary cary course of things from the breach and also
for any loss which it was reasonably foreseeable by the parties as being likely to arise from the breach. See McGregor8".
In HILL v C.A. PARSONp; CO. LTD (1971) 3 All ER 1345 at 1350 DENNING MR stated what the emhe employee's entitlement is after dismissal. He said:
"The servant cannot claim wages after the relationship had determined. is lo his remedy in d in d in damages against the master for breach of contract to continue the relationship for the contractualod. He gets damages for the time he would
have served if he had been given proper notr notice, less of course, anything he has earned or might have earned in the alternative
employment".
(emphasis added)
For damages for unlawful dismissal, as in this case, I also refer to the text book PRACTICAL APPROACH TO EMPLOYMENT LAW (1982) by JOHN BOWERS at pages 129-130.
At p129 the authates:
"Damages are the normal remedy for breach of contract and the usual measure is the wages the employee would have earned if due notice had been given. For that is the only pewhed when he is entitled by contract to continue in employment. If his contract can be determined by three
weeks' notice he cannot claim his loss over the three years even though he is unemployed for that length ogth of time; for within
that period at any time he might have been dismissth three weeks' notice.&quo." (emphasis added)
He goes on to say:
"Very large measures of damages are available only where the contra for a fixed term anu> and cannot be terminated by notice. This is most usually the case in high status occupations like company directors, football
club managers and accountants. Theure of damages is then then similarly the amount which whave been earned in the unexpired part of the fixed term, but here there might be four or five years to run. p class=MsoN=MsoNormal style="text-align: justify; margin: 0 36.0pt"> From the amount of damages so made up must be deducted sums to take account of: mitigation; taxation; and benefits received." (emphasis added)
In assessing damages in respect of employment for a fixed term, considerations which apply are as stated in the following passage
from the book Macken, McCarry & Sappideen's THE LAW OF EMPLOYMENT 4th Ed. 1997 at p.296:
"for a fixed term not subject to termination by notice, damages will be equivalent to the salary or wages over the entire period
- subject, however to reduction for likelihood of re-employment within the remaining contractual period, and the possibility of termination
of the contract before the expiry of the period without fault on the part of the employer. Thu Court is entitled to t to take into
account the risk of ill-health, premature death, and the possibility of termination by reas fraud or misconduct in determining the
quantum of damages payable".
On the 'rule' which applies inse where there is a breach of contract, ALDERSON B in HADLEY v BAXENDALENDALE (1854) 9 Ex 341, 354-355 said:
"... We think the proper rule in such a case as the present is this: where two parties have made a contract which one of them
has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly
and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract
itself, or such as may reasonably be supposed to have been the contemplation of both parties, at the time they made the contract,
as the probable result of the breach of it."
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> In considethe Plaintiff's claims I have borne in mind the principles and guidelines stated in the case cases referred to by Mr. Rabo
in his written submission.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The Court of Appeal case of VICTORIA LAUNDRY v NEWMAN (1949) 2 K.B. 528, 539-540 is pertinent. ASQUITH L.J>
