Sermac Laundry Ltd v Henry
| Jurisdiction | Barbados |
| Judge | Husbands, C.J.,Belgrave, J. |
| Judgment Date | 28 December 1989 |
| Court | Divisional Court (Barbados) |
| Docket Number | No. 92 of 1989 |
| Date | 28 December 1989 |
Divisional Court
Husbands, C.J. (Ag.); Belgrave, J.
No. 92 of 1989
Dr. R.L. Cheltenham with Miss E. Thompson for the appellant.
Mr. L. Inniss for the respondent.
Industrial law - Contract of service — Termination — Wrongful dismissal.
The respondent obtained judgment in the Magistrate's Court District “A” in an action brought by her for wrongful dismissal against the appellant her employer. She was awarded damages which had been agreed in the sum of $5 000.00 and costs.
The appellant has appealed on the following ground, namely, that the learned magistrate erred in law. All the relevant matters in the case are set out by the learned magistrate in his judgment as follows:
“Mr. Henry Thompson is the Managing Director and principal shareholder of the defendant company Sermac Laundry Limited. This company was incorporated in September 1981. It has two branches, one at Baxters Road, St. Michael, and the other at Southern Plaza, Christ Church.
Prior to incorporation of the defendant company the business of the company was carried on as a private concern by Mr. Thompson. The plaintiff was employed by Mr. Thompson from September 1977 as a general worker. At the date of incorporation she was not informed of any change of ownership of the undertaking. Her employment continued as if she was still employed by Mr. Thompson. She was a very efficient worker. She was familiar with all operational aspects of the laundry. Part of her duty was the receiving of clothing from customers for cleaning and the delivering cleaned clothing to customers.
On the 26th August, 1986 the plaintiff returned from her annual holiday. She reported for work at about 8 a.m. Her scheduled time of commencement was 8.30 a.m. Earlier that morning she had received a telephone call from Mr. Thompson who directed her to report to him at the Baxters Road Branch. Prior to going on holiday she worked at Southern Plaza.
Whilst the plaintiff was on holiday it came to the attention of Mr. Thompson that a regular customer, who had left her ticket at the Southern Plaza branch, had collected part of her clothing from the plaintiff without payment. This customer had returned for the balance of her clothing and had made full payment for all her clothing whilst the plaintiff was on holiday. The plaintiff had no authority to allow customers to take part delivery of clothing without payment.
There was in existence a system for part-delivery of clothing to customers. The name of the customer, the ticket number and the items of clothing delivered were marked on the customer's ticket. Customers were not required to leave their tickets at the laundry. They left them at their own risk.
The decision to dismiss the plaintiff was made whilst she was on her annual holiday. The reason for dismissing her was for the single act of permitting a regular customer to take part-delivery of her clothing without an entry being made in a book kept for that purpose and without receiving part-payment.
When the plaintiff reported for work on 26th August 1986 she was questioned by Mr. Thompson about the transaction. She admitted that she had not followed the normal procedure. She was told by Mr. Thompson that he considered it fraud and dishonesty and he summarily dismissed. her giving her two weeks vacation pay which was due to her. The fraud according to Mr. Thompson was the delivering of the clothing to the customer without receiving payment at the time.
The customer involved had been a regular customer at Southern Plaza for at least 7 years. She was well-known to the plaintiff and to the plaintiffs supervisor. The plaintiff had made two marks on the customer's ticket indicating that two items of clothing had been given to the customer.
There was no element whatsoever of fraud or dishonesty in this transaction.”
The learned magistrate then set out the case for the defendant company as it was put before him by Dr. Cheltenham as follows:
- That the plaintiff had acted contrary to the instructions of the employer. 2. That her conduct opened the employer to abuse and exploitation and 3. The plaintiff extended a system of credit to the customer when she had no authority to do so. The conduct of the plaintiff according to counsel was grave and had all sorts of implications which could undermine the viability of the company. There was, he said, no allegation of dishonesty.
The learned magistrate then expressed his views on Dr. Cheltenham's submissions as follows:
“I cannot agree with counsel. The plaintiff's dismissal was based on an allegation of fraud. There was no evidence of fraud or any form of dishonesty. Nor can I agree that the plaintiff extended credit to the customer. The defendant suffered no detriment as a result of the customer collecting two items of her clothing prior to payment. This was not a transaction involving the sale of goods. There is no evidence that the conduct of the plaintiff opened the defendant to abuse and exploitation. Nor is there evidence that her conduct had the effect of undermining the viability of the company.
This is a case of a very competent employee of over 8 years standing being dismissed for a single act of misconduct by her failure to comply with a system of work.”
The learned magistrate referred to the judgment of Lord Maughn in Jupiter General Insurance Company Ltd. v. Shroff [1973] 3 All E.R. at page 73 and to that of Lord Evershed, M.R. in Laws v. London Chronicle Ltd. [1959] 2 All E.R. 285 and said:
“The conduct of the plaintiff in this case does not connote a deliberate flouting of the essential contractual conditions. There was no fundamental breach of the terms of the contract of employment justifying summary dismissal and the defendant has not shown just cause for dismissing the plaintiff. The plaintiff was wrongfully dismissed. I give judgment to the plaintiff for $5,000.00 and $280.00 costs.”
In seeking to show that the magistrate erred in law Dr. Cheltenham said his submissions may be dealt with under the four following heads:
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(1) That the magistrate made a finding of fact which was not supported by the evidence.
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(2) That the magistrate misapplied the law because he implied in his reasons that the reason given by the employer to the plaintiff at the time of dismissal was decisive.
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(3) That the magistrate erred in law in that he placed too much emphasis on the fact that the employer did not suffer any loss or detriment as a result of the plaintiff's misconduct.
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(4) The magistrate placed too much emphasis on the fact that misconduct of the plaintiff consisted of only a single act which he did not regard as serious enough to justify summary dismissal.
In order to support his submission that the magistrate had made a fording of fact which was not supported by the evidence, Dr. Cheltenham drew attention to a statement of the magistrate recorded on page 2 of the judgment where the magistrate said:
“The plaintiff had made two marks on the customer's ticket indicating that two items of clothing had been given.”
The evidence of the plaintiff at page 3 of the record shows that she told the magistrate in chief. “I took the ticket, delivered the piece of work, ticked it off on the ticket. I did not receive any money, no money was involved. I ticked it because I delivered that piece.”
On page 2 of the record the plaintiff said:–
“Mr. Thompson telephoned me and asked me to come to Baxters Road to him. I went there. I saw him. I went to his office. He told me I delivered a piece of clothes to a customer and I did not mark it off in the part delivery book. He asked me if I knew I should write it in the book. I said it was after working hours and I did not get a chance to put it in the book.
In answer to Dr. Cheltenham the plaintiff told the magistrate:
“I agree I had made no marking but had given an explanation. I did not put it in the book because I was busy the next day.”
In re-examination by Mr. Inniss the plaintiff said “I had made a mark on the ticket. I ticked the ticket off but I did not write it off”. The plaintiff's supervisor Marlene Barrow who was called as a witness for the defendant company produced a bundle of tickets in the court...
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