A fundamental breach of contract i.e. a beach so serious that it goes to the root of the contract and is imcompatiable with the continuing relationship of employer/ employee
Either one serious breach or a series of smaller breaches which when considered together amount to a fundamental breach
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Two examples in which an employee may be in repudi
- Theft
- Refusual to obey lawful and reasonale order of employer
- Participating in strike action
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Circumstances in which an employer may be in repud
- unilaterally and without authority varying the terms of contract especially reducing pay
- Harrassing/ humilating employee
- Breach of the implied term of mutual trust and confidence
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What are the options to an employee where an emplo
Waive the breach affirm contract and continue relationship
Work under protest and claim damages
Resign in response to the RB and claim for breach of contract/ wrongful repudiation (for notice period)
Claim Constructive Unfair Dismissal if eligible (2 years service)
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What are the options available to the employer whe
Dismiss with or without notice
Impose disciplinary sanction short of dismissal
Waive and affirm contract and continue relationship
Sue for breach of contract (rare in practice)
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What effect will a wrongful dismissal claim have o
The contract will have terminated (as there must have been an express summary dismissal by the employer) leaving the employee to bring a breach of contract claim and recover outstanding notice pay.
If the employee has been wrongfully dismissed they will be freed from further performance including Post-termination covenants.
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List the implied terms governing the relationship
Duty to pay - usually an express term (oral or in writing)
Duty of mutual trust and confidence
Duty of honest and faithful service (inc confidentality during employment)
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