Rudder v Dallaway

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Douglas, C.J.,Worrell, J.
• Judgment Date: 25 May 1981
• Docket Number: Civil Suit No. 6 of 1983
• Date: 25 May 1981

Divisional Court

Douglas, C.J.; Worrell, J.

Civil Suit No. 6 of 1983

Rudder

and

Dallaway

Mr. E.D. Mottley, Q.C. for appellant.

Mr. A. Archer for respondent.

Employment law - Contract of service — Determining factors — Control only one factor — Appellant appealed against a decision in which judgment was entered against him for damages for wrongful dismissal — Whether the respondent who was a musician who played in a band was employed under a contract for services or a contract of service — Court examined various test to see which type of contract applied to the respondent — Court found that there was clear evidence upon which the trial judge could have reached the conclusion that a contract of service had been proved.

JUDGMENT OF THE COURT:

1 This is an appeal against the decision of the learned magistrate sitting at District “A” in his civil jurisdiction in which he entered judgment for the respondent for damages for wrongful dismissal.

2 The evidence at the trial disclosed that the respondent is a musician and between the 12th of February, 1973 and the 31st of May, 1980 he performed with the Blue Rhythm Combo as a trumpeter. The appellant was during the relevant period, the leader of the band. The respondent pleaded that it was an implied term of the agreement for service between the parties that the respondent's service should only be terminated for reasonable cause and by notice which in the circumstances of this case is four weeks. He further pleaded that on the 31st of May, 1980 the appellant wrongfully and summarily dismissed him without reasonable cause and without reasonable notice.

3 The respondent's evidence was that the appellant told him where and when he was to play and that the appellant paid him weekly. The respondent maintained that it was a full-time job and that even if he didn't work he was still paid.

4 In his evidence the appellant stated that members of the band were paid by the job, that the respondent was not paid a regular sum, and that the respondent gave him notice on the 9th of April, 1980 that he was leaving in two weeks' time.

5 The learned magistrate held that there was a contract of service between the parties and rejected the appellant's evidence that the respondent gave notice on the 9th of April, 1980 that he was leaving. The magistrate held that the appellant was in breach of the contract and gave judgment against him.

6 Mr. Mottley, who did not appear in the court below, submits that insufficient attention was paid to the evidence of the witness Williams, who testified that he, too, was a member of the Blue Rhythm Combo and that he was paid by the job. Mr. Archer's answer to this submission is that Williams' evidence is contradictory, the...