The Lesser Known Perils of Shark-Wrestling

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The British man who was filmed wrestling a shark, which threatened nearby children in the sea, whilst he was on holiday in Australia – the footage of which went global – has been sacked by his employer this week. It has been revealed that Mr. Marshallea and his wife (who has also been sacked) were on sick leave from the charity that employed them at the time of Mr. Marshallea’s heroic efforts and his employer took the view that this was a breach of trust too far.

Mr. Marshallea’s version of events is that he was off work with stress (as was his wife) and his GP had advised them that a holiday would do them good. His employer, in the dismissal letter, allegedly stated that, ‘Whilst unfit to work, you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way; the photographs and footage appearing in newspapers and television broadcasts.”

Another of the employer’s letters allegedly said: ‘The breakdown of the trustees’ confidence and trust in you and your ability to perform the role is so great that we find that dismissal is the only course of action we can recommend’.

Who knows what the full picture is behind all of this, but it begs the question – is wrestling a shark on holiday whilst on sick leave enough to justify a trust and confidence dismissal?

Trust and confidence dismissals are a notoriously difficult area and it is not easy to establish a fair dismissal for this reason. The Employment Appeal Tribunal (EAT) has at times criticized the use of trust and confidence in dismissals because, in their view, it belongs to the law of constructive dismissal – not dismissal (i.e to be used by employees – not employers!). While loss of trust and confidence has been held to be a fair reason for dismissal under the ‘some other substantial reason’ heading, reliance on the loss of trust and confidence alone will not usually be enough to establish a fair dismissal in the absence of fairly extreme circumstances and tribunals will generally look carefully at the surrounding circumstances to decide if the dismissal was fair.

In Leach v The Office of Communications (a 2012 case) both the EAT and the Court of Appeal criticized the employer for relying on loss of trust and confidence as a reason for dismissal. The EAT in this case noted a ‘growing trend … to regard the invocation of ‘loss of trust and confidence’ as an automatic solvent of obligations’ and went on to say: ‘it is not’. The EAT said that it is not sufficient merely to say that trust and confidence has broken down – something more is required. The EAT’s views were echoed by the Court of Appeal who held that a breakdown in trust and confidence must not be a “convenient label” to stick on any situation where the employer cannot easily rely on one of the typical fair reasons for dismissal such as conduct or capability.

It is impossible to predict whether Mr. Marshallea would succeed in a claim against his employer. We are almost certainly not privy to the full facts of the case and in any event. However, on the basis of the facts as they have been reported, Mr. Marshallea’s former employer may well have a fight on its hands as we can only assume that a man who is brave enough to wrestle a shark would not hesitate to take on his employer to defend his honor….