A critical analysis of the doctrine of constructive resignation and a discussion of whether or not it should be introduced or sustained in Malawian employment law.
Written in 2006; 15,553 words; 34 sources; MLA; $ 249.95
Paper Summary:
This paper discusses the doctrine of constructive resignation in the context of employment law or employment relationship. In particular, it attempts to address whether this doctrine should be introduced or sustained in employment law in Malawi. The paper proceeds on the premise that in Malawian employment law - statutory or case law- the doctrine of constructive resignation is not provided for. It is, however, recognized and applied in other jurisdictions namely, Unites States, Canada, United Kingdom and Philippines. This paper concludes with the recommendation that the doctrine be introduced in Malawi, although with necessary modifications to suit the employment situation and the right to fair labour practices.
Outline:
Acknowledgement
Preface
Table of Contents
List of Abbreviations
List of Cases
Chapter One
Introduction
Background of the Study
Statement of Problem
Objectives
Methodology
Lay Out of the Essay
Chapter Two
The Employment Relationship
Introduction
The Contract of Employment
Identifying the Contract of Employment
Employment Relationship
Nature of Employment Relationship
Terms, Conditions, Rights and Duties
Conclusion
Chapter Three
Termination of Employment
Introduction
Termination by Employer
Fair Dismissal
Lawful Dismissal
Termination by Employee
Rights Relating To Termination Of Employment
Conclusion
Chapter Four
The Doctrine of Constructive Resignation
Introduction
The English Doctrine of Constructive Resignation
Statement of the Doctrine
Theoretical Basis
The "Elective Theory"
The "Automatic Theory"
Elements of the Doctrine
Conduct
Fundamental or Repudiatory Breach
Self-Dismissal as the Result of Prior Agreement
The United States Doctrine of Constructive Resignation
Conclusion
Chapter Five
Should The Doctrine Of Constructive Resignation Be Introduced Or Sustained?
Introduction
The English Doctrine of Constructive Resignation
The United States Doctrine of Constructive Resignation
Conclusion
Chapter Six
Conclusion
From the Paper:
"Of late, it has been in issue whether one can or has constructively resigned10. This is in issue in Malawi and other jurisdictions. The doctrine of constructive resignation is to the effect that if the conduct of the employee amounts to a repudiation or a fundamental breach of the contract of employment the said conduct automatically terminates the contract, in which case it is the employee rather than the employer who will be deemed to have terminated it. The employer is entitled to dismiss him even without hearing him. He may as well say: "he sacked himself"11. In Malawi there is no statutory doctrine of constructive resignation, and apparently there is currently no case which has said the doctrine is applicable in our employment law."
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