Philmore Jarvis v Shoppers Pharmacy (Antigua and Barbuda)

An employment contract remains in force while the parties negotiate a proposed variation unless a consensual termination or effective variation is actually agreed. Inconclusive discussions about changing from full-time to part-time work do not discharge the original contract. An employer cannot unilaterally impose working hours, without reasonable notice, if the change would force the employee to breach either the employment contract or other official duties. A temporary departure over an unresolved scheduling dispute, followed by a return to work, does not amount to repudiation absent conduct evincing an intention not to perform. A dismissal based on a supposed probationary period has no contractual foundation where no such term exists.

Mr Jarvis, a qualified pharmacist and immigration officer, worked for Shoppers Pharmacy under a written full-time employment contract. The parties understood that his pharmacy hours would accommodate his immigration duties. After a new schedule conflicted with those duties, discussions took place about part-time work, but no agreed variation was completed. Shoppers Pharmacy dismissed Mr Jarvis, believing that he remained within a three-month probationary period.

The Industrial Court majority found no repudiation, no valid probationary term and unfair dismissal. The Court of Appeal accepted that Mr Jarvis had not repudiated the contract, but allowed the appeal on an issue it raised itself, holding that the arrangements after the part-time proposal were void for uncertainty. The central issue before the Board was whether the original employment contract remained in force during the inconclusive negotiations.

The Board allowed the appeal and advised Her Majesty accordingly. Lord Collins delivered the reasons for the Board.

1. The original contract remained operative. Mr Jarvis was employed full-time under the written contract on the understanding that he could work hours permitting him to perform his immigration duties. The Board did not need to decide whether that entitlement lasted until the contractual expiry date or could be ended on reasonable notice.
2. Unilateral alteration of hours was impermissible. Shoppers Pharmacy had no power to impose, without reasonable notice, a work schedule that would force Mr Jarvis to choose between breaching his pharmacy contract and breaching his official duties as an immigration officer.
3. There was no repudiation. On the Industrial Court’s findings, Mr Jarvis did not evince an intention not to perform his duties. His departure followed an unresolved scheduling dispute, and he returned the next day. Those facts did not amount to anticipatory breach or repudiation.
4. There was no probationary right of summary dismissal. The written contract contained no probationary term, as required by Antigua and Barbuda Labour Code section C5(1), and Shoppers Pharmacy therefore had no contractual right to terminate on that ground.
5. No consensual termination had occurred. The discussions concerned a possible variation to part-time work and a new schedule. They were inconclusive. There was no agreement terminating the existing contract, no completed variation and no basis for treating the contract as void for uncertainty. The Court of Appeal’s analysis was therefore wrong.

• Privy Council: Allowed the appeal and advised that the Court of Appeal’s judgment was wrong.
• Court of Appeal of Antigua and Barbuda: Accepted that Mr Jarvis had not repudiated the contract, but allowed the appeal after finding that the post-dismissal contractual position was void for uncertainty.
• Industrial Court: By a majority, found unfair dismissal and awarded compensation for the balance of the contractual period.