Layson et Al v Marshall

• Jurisdiction: Barbados
• Judge: Husbands, J.,Chase, J.
• Judgment Date: 14 June 1991
• Docket Number: No. 45 of 1990
• Court: Divisional Court (Barbados)
• Date: 14 June 1991

Divisional Court

Husbands, J.; Chase, J.

No. 45 of 1990

Layson et al

and

Marshall

Appearances:

Mr. L. Haynes for the appellant.

Mr. R. Thorne for the respondent.

Damages - Summary dismissal by employer — Appeal — Respondent handed letter dismissing him by appellants — Magistrate held conduct complained of in letter not sufficient to justify summary dismissal — Damages awarded for wrongful dismissal — Appeal — Grounds (i) decision is erroneous in law (ii) decision is against the weight of the evidence —

Held: magistrate erred in his evaluation of the facts, respondent's behaviour amounted to misconduct incompatible with continuance of master and servant relationship Summary dismissal for insubordination and use of threatening words to his employer justified.

JUDGMENT OF THE COURT:

1 The appellants are engaged in the business of office cleaning. The respondent had worked in their employ for 4 years and 5 months. On the 13 February, 1987, at the appellant's offices, an incident occurred which gave rise to the respondent's dismissal. When he received his pay packet from the appellants' secretary and payroll clerk, the respondent discovered that his wages were incorrect. Thereupon, according to the secretary, the respondent threw the pay packet on her desk and said “what the rass hole this is.” She then went to the office of her employer, the appellant Linda Payson, and reported the matter. The respondent denied that he behaved in this way. His evidence is –

“As I received my wages I noticed it was short of one week's pay. I asked Janice Gilkes the secretary, about it. She said it was just a mistake but it could wait till Monday. Knowing how things work with my employer I said I prefer to have all my money that day. I received all my money later that evening. … I did not threaten anyone. I was not rude to any one just normal conversation.”

2 Under cross-examination the respondent said:

“I put the money back on the table and walked out the office…I did not tell her what the rass hole is this. I told her I can't wait until Monday. When I came outside the office door I received a message that Miss Layson wanted me. I went to her.”

3 The appellant, Linda Layson, gave evidence about this meeting in her office. She said –

“I asked him what was wrong with his pay packet. He told me to ask Miss Gilkes, she knew. I asked Miss Gilkes. She said it was a week short. I told Mr. Marshall there was no need for his attitude that if his money or for this matter anybody's money was ever wrong it was always rectified. I then asked him if he wanted a cheque that evening or if he wanted to wait till Monday for cash. This was about 6.30 – 6.45 p.m. He did not reply. He just stared at me, left the envelope on the desk and walked outside. I waited until 7.30 p.m to see if he would make some decision.”

4 Under cross-examination the respondent's account of that meeting is as follows –

“She (Miss Layson) asked me what happened now. She asked me what was wrong with my wages. I told her it was short by a week. Janice Gilkes was in and out of the office. I said “Ask her” pointing to Janice Gilkes. Miss Layson then asked Miss Gilkes what was wrong with the wages and she said it was a week short. Miss Layson said my attitude was not necessary and if anything was wrong with any wages it could be corrected. Sometime after she asked me if I wanted a cheque or cash Monday. She was pointing out to me it was a mistake and I could wait until Monday for the balance of the money. I walked out of the office. 1 did not reply when she asked if I could wait till Monday.”

5 The next stage took place at about 7.30 p.m. The appellant Linda Layson said –

“At 7.30 p.m. I went outside in the yard where he (the respondent) was standing and told him I would like him to start the banks. He said he wasn't working because he hadn't get paid. I then asked him for the van key. He was the driver of the van and said he was not working so I wanted the key. He said he did not have it. I went over to the van and it was there and I took it out. I walked back into the office. On my way into the office Mr. Marshall told me he wanted his money. I said sure. I again asked him if he was going to take a cheque. He said: ‘Do something, do something.’ I wrote a cheque and gave him. He took it.”

6 About this stage of the episode the respondent said under cross-examination –

“After I left the office she came out and asked me if I am not working. She said it was time to start the banks. I said I was not working because I had not got paid. She did not ask me for the keys to the van. She went straight to the van and took out the keys from the van and went back to her office. She did not say anything to me. I just stood out there. Some of the guys went in and talked to her. When they came out I went into the office. I asked her if she is ready to give me my money now. She asked if I wanted a cheque. She said money is money. I would get the cheque changed. I replied, “Do something, do something, or something like that.” She gave me the cheque. She said nothing else to me. She was packing to go home. I asked for the keys of the van to go and resume work. I don't remember what she said.”

7 The final stage occurred as the appellant was leaving her office. Linda Layson said –

“When I turned to go out he was standing in the doorway which is a little over 3 feet wide. He was leaning on one door jamb with his other hand in his side. I said “Excuse me”. He said “Push me”. I said it again and he said “Push past me.” I said “excuse me” because I could not pass comfortably with Mr. Marshall standing in the door. While I was in the yard about to leave he handed me two little keys. They looked like one of the room keys. I ask him what were they keys to. He said the chains at Downtown. I got in the car and left.”

8 The respondent's account is –

“She spoke to me when she was leaving the office. I was leaning by the doorway. She said “Excuse me”. I told her to pass through. There was enough room for her to pass. I said push me, push past me. She came through. I left the keys in the compartment to her car.”

9 The following day, Saturday, 19th February, before going to his work place, the respondent went to work at the Downtown supermarket at 7 a.m. He said “it is routine”. The normal practice is to go to the place to be cleaned first. From the supermarket he went to the appellants' office by motor omnibus. He asked the appellant Linda whether he was working or not. The appellant Tony Layson told him he was not fired but to go back home and a decision would be made on the Monday.

10 The appellant Linda Layson said she saw the respondent at the office on the Saturday about 9 a.m. He asked her if he was working or not and she did not reply. She said she was surprised to know he had gone to work at Downtown the Saturday morning, because he had handed in the key.

11 On the Monday, 16 February 1987, the respondent went to work and about 4 p.m. was handed a letter signed by Layson which read –

“Dear Mr. Marshall,

I am terminating your services herewith due to:

gross insubordination,

threatening words

refusing to commence work when asked to do so.

The above incidents took place at L and L Enterprises office on Friday 13th February, 1987. Please deliver in this office your Sandy Lane Overalls and L and L Enterprises tee-shirts. Also your port pass issued to you on behalf of L and L Enterprises within two (2) days of receipt of this letter. Please find attached 3/52 part due to you.”

12 Questioned by counsel for the respondent about letter the appellant Linda Layson said:

“I dismissed Mr. Marshall for gross insubordination to Miss Gilkes, the payroll clerk. I was not present. Mrs Gilkes is Senior to Mr. Marshall. He was also dismissed for using threatening words to me. The threatening words were to push or push past him. They were a threat to me looking at Mr. Marshall's face and the words.”

13 In his determination of the matter, the magistrate examined the grounds for dismissal stated in the appellants' letter and concluded that the conduct complained of was not sufficient to justify summary dismissal. He awarded the respondent damages for wrongful dismissal. The appellants appealed on the grounds that –

1

The decision is against the weight of evidence. 2. The learned magistrate's decision was erroneous in point of law.

14 Counsel for the appellants draws the court's attention to the magistrate's reasons for decision. He argues that on the many issues requiring specific findings of fact, the magistrate's findings were often obscure and in some instances uncertainly or wrongly based. He points out that on the issue of gross insubordination, the magistrate made no specific finding on a vital matter, that is to say, whether the respondent uttered the words “what the rass hole is this.” The matter was dealt with by the magistrate in this way –

“The plaintiff Anthony Marshall was employed as a cleaner. Mrs. Gilkes is employed as a payroll clerk. Her status did not place her in a supervisory capacity, enabling her to exercise any...