Clarke v Detco Motors Ltd
| Jurisdiction | Barbados |
| Judge | Husbands, J.,Belgrave, J.A. |
| Judgment Date | 29 June 1990 |
| Docket Number | No. 114 of 1989 |
| Court | Divisional Court (Barbados) |
| Date | 29 June 1990 |
Divisional Court
Husbands, J.; Belgrave, J.A.
No. 114 of 1989
Mr. David Commissiong for the appellant
Mr. Lindsay Bolden for the respondent
Industrial law - Contract of service — Termination — Wrongful dismissal — Whether appellant guilty of misconduct — Whether employer was justified in law in dismissing appellant for a single act of misconduct.
The Appeal by Rawle Clarke from a decision of a magistrate for District A was dismissed by us on the conclusion of the arguments on 1st June, 1990. We promised then to state our reasons for so doing at a later date and we do so now.
The record of the proceedings in the Magistrate's Court for District A, Civil Division, revealed that a claim for damages for wrongful dismissal was filed in that court by Rawle Clarke, plaintiff against Detco Motors Ltd., defendant on the 8th December 1986.
The learned magistrate dismissed the said claim on 30th April, 1987 and awarded the defendant costs in the sum of $250.00.
An appeal was made to the Divisional Court on 6th May, 1987 on the following grounds:
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(1) that the decision is against the weight of the evidence
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(2) that the decision is erroneous in point of law.
In argument before us counsel for the appellant submitted that the learned magistrate applied the wrong law y to the facts of the case in that he found that the one act of misconduct of which the appellant was guilty was such as not to justify his dismissal by his employer.
Counsel for the appellant submitted further that the learned magistrate ought to have taken into account the fact that the appellant had given 12 years continuous and satisfactory service to his employer and was never disciplined by his employer during that period.
Counsel submitted that the circumstances which existed at the time of the incident should have been given greater consideration by the magistrate in that the appellant had found himself in an embarrassing situation which was also confusing in that the appellant wanted to use the telephone. When he attempted to do so he found someone on the line who spoke to him and this gave rise to the incident which resulted in Mr. Dowding demanding an apology from the appellant and the subsequent dismissal of the appellant.
Counsel for the appellant submitted that a single act of misconduct can only justify a dismissal if the said misconduct is grave and indicates a repudiation of the contract by the employee. Counsel cited the case of Laws v. London Chronicle (Indication Newspaper) Ltd. [1959] 1 W.L.R. 698 [1959] 2 All E.R. 285.
In his reasons for decision the learned magistrate wrote:–
“The plaintiff was the Senior Supervisor of the Self Service Department of the defendant company. The defendant company carries on the business of motor dealers. The plaintiff was employed by the defendant company for about 12 years.
Mr. Thomas Dowding was the Chairman of the Board of Directors of the defendant company. He was responsible for the running of the self service department. The plaintiff worked under Mr. Dowding.
On the 3rd October, 1986, the telephone in that department rang. Mr. Dowding answered. The caller wished to speak to the plaintiff. He was asked by Mr. Dowding about the nature of the call. The caller said it was in connection with tyres. He was told that the plaintiff was busy and that he Mr. Dowding could help. The caller said that unless he could speak to the plaintiff he would not do any business with the defendant company. Mr. Dowding informed the caller that that was his prerogative. At about this stage the plaintiff picked up the extension of his telephone and commenced a conversation with the caller whom he knew. He was asked by Mr. Dowding to put down the extension. He refused and continued his conversation with the caller. The caller wanted information on tyres which he said he intended to purchase from another company. Mr. Dowding was forced to discontinue his conversation with the caller.
Later that day Mr. Dowding wrote the plaintiff a handwritten memorandum (exhibit DM1) demanding an apology by the 7th October 1986. The plaintiff failed to apologise and on the 8th October 1986 he was dismissed by letter (Exhibit C).
This was a case of wilful disobedience of a lawful and reasonable order by the employer which justified the dismissal of the plaintiff. Laws v. London Chronicle Ltd [1959] 2 All E.R. 285.
The plaintiff was not wrongfully dismissed. His action was dismissed and the defendant was awarded $250.00 costs.”
The questions which fall to be determined by this court are these:
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(1) was the appellant guilty of misconduct?
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(2) was the learned magistrate wrong in law in finding that the employer was justified in law in dismissing the appellant for a single act of misconduct.
Learned counsel for the appellant conceded before us and in the court below that the appellant was guilty of misconduct.
On the evidence before us he could hardly do otherwise as reference to the record of the evidence as given by the appellant in the court below will show:
“On Friday 3rd October, 1986 after 1 p.m. I was in the right aisle of the self service department. There are three aisles...
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