Smith v Griffith

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Douglas, C.J.,Williams, J.
• Judgment Date: 15 February 1974
• Docket Number: No. 75 of 1967
• Date: 15 February 1974

Supreme Court — Divisional Court

Douglas, C.J.; Williams, J.

No. 75 of 1967

Smith

and

Griffith

Appearances:

C.O. Tulloch for the appellant.

H.B. St. John for the respondent.

Contract - Contract of Employment.

Facts: The issue was whether the contract in question was one of service or for services — The respondent was charged with failing to pay the employee in question pay which was due to her by virtue of S.6 of the Holidays with Pay Act 1951 when he terminated her employment — The employee was employed as a caretaker of the respondent's snackette.

Held: The appellant had made out a prima facie case that there was a contract of service — Appeal allowed — Case sent back to be reheard.

JUDGMENT OF THE COURT:

1 The respondent was charged with an offence under paragraph (b) of Section 9 of the Holidays with Pay Act, 1951 in that he, being the employer of Ismay Edghill for a period of not less than three months' continuous employment, and such employment having been terminated on the 31st May, 1966, failed forthwith to pay the said Ismay EdShill her average pay for the period of her employment with the respondent being from February, 1964 to the 31st May, 1966 as provided for under section 6 of the Holidays with pay Act, 1951.

2 Ismay Edghill worked at a Snackette at Sand Street in Speightstown. She stated in evidence that she was engaged by the respondent as caretaker at the wage of twenty dollars a week. Later this was raised to twenty-four dollars.

3 She also said that, acting on instructions from the respondent, she engaged staff. She also recorded money spent — insurance, electricity, telephone, taxes and wages. She said in evidence –

“I had the complete running of the Snackette. All I had to do was to give the accused what was left. I saw all aspects of the business. I was free to pay or not to pay. The accused did not supervise anybody. I was running the place for the accused. I would reprimand the girls myself. I was capable of dismissing them. I arranged the work hours and could change them this was not from the time I came on there. I did all the ordering. The bread came from the bakery without ordering. I could stop the orders if needed. I live on part of the premises. I did not pay rent. I was employed as a servant”

4 It was put to her that the arrangement was that she received twenty-five per cent of the net sales. This is denied the witness insisting that her position was that an employee who had to keep an account of the takings and expenses.

5 The acting Labour Officer, Mr: Spencer's testimony was the effect that he interviewed the respondent in regard to Miss Edghill's complaint and the respondent had told him that he had dismissed her because she was not running the business properly.

6 At the close of the prosecution's case, learned counsel for the defendant submitted that there was no case to answer. He referred to Simmon v. Heath, Laundry Company [1910] 1 K.B. 543,...