JAYEWARDENE A.J.—Labrooy v. The Wharf Lighterage Company 85
Present: Jayewardene A.J.
LABROOY v. THE WHARF LIGHTERAGE COMPANY.
16—C. R. Colombo, 72,680.
Master and servant—Engagement from month to month—Monthly salary—- Damages in lieu of notice.
Where a person is employed on service from month to month, thesalary being paid monthly, he is entitled on the termination of hisservices, to a month’s salary in lieu of notice.
^PPEAL from a judgment of the Commissioner of Requests, Colombo.
H. E. Garvin, for defendant, appellant.
N. E. Weerasooriya. for plaintiff, respondent.
June 30, 1932. Jayewardene A.J.—
The defendant, the Wharf Lighterage Co., Ltd., in March, 1931,engaged the services of the plaintiff as assistant manager of the defend-ant’s business on a salary of Rs. 150 a month. On May 30, 1931, the
86 JAYEWARDENE AJ.—Labrooy v. The Wharf Lighterage Company.
plaintiff’s services were terminated without previous notice and plaintiffha6 brought this action to recover Rs. 300 as damages, being two months’salary for wrongful dismissal. The defendant pleaded inter alia that the,plaintiff could claim only one month’s salary in lieu of notice. The•learned Commissioner of Requests gave judgment for plaintiff as prayedfor' with costs, holding that he was entitled to two months’ salary asdamages, considering the importance of his post. Leave to appealhaving been refused on the facts the defendant has appealed on a pointv;of law which is, that the plaintiff was employed on a monthly salary ofRs. 150 and there are no special circumstances which would entitle the'’plaintiff to obtain two months’ salary as damages in lieu of notice oftermination of his employment..
’ Th*e- -plaintiff was employed as assistant manager of the defendantcbmp&ny and was authorized to do business at H. M. Customs and onboard ships. He does not fall within the category of persons dealt withsby thfe Labour Ordinances' The contract of service is governed by theRoman-Dutch law. Maasdorp says: “ The employee will be entitled,tb a'reasonable notice of the termination of the contract, and what isreasonable notice will depend on the circumstances of each particularcase. When the service is from month to month, the salary, being pay-able monthly, he will be entitled to a clear month’s notice. (3 Maasdorp,p. 249.)
t Nathan states the law thus: In the case of hiring of employees,where the hiring is not for menial or domestic service, and is for anindefinite period from month to month it only terminates at the end ofone- of the monthly periods. (2 Nathan, p. 902, 2nd ed.) There are noimportant differences between English and Dutch common law on thesubject of contracts of service, locatio operarum. (Morice’s English andRoman-Dutch Lav>, p. 172.) On the question of damages Roman,English, and Roman-Dutch law seem to be agreed. Gringer v. EasternGapage In English law where it is an express term of the contract thata servant who is dismissed without notice is to be paid his wages for acertain period in lieu of notice or where there is a custom to that effect,the measure of damages for the breach is the amount of such wages,which is to be regarded as liquidated damages. (20 Halsbury 112.) Thereis a custom in domestic service, that a general hiring may be terminatedat any time by a month’s notice or payment of a month’s wages. If nocustom nor stipulation as to notice exists, and if the contract of serviceis not one which can be regarded as a yearly hiring the service is ter-'.minated by a reasonable notice. (20 Halsbury 97.) In Sirisena v.Kurugama Tea Co.2, the plaintiff, a dispenser on an up-country estate,claimed three months’ salary in lieu of notice, and the District Judgeheld that the plaintiff was entitled to two months’ notice, as it was byno means easy to secure a post with a salary of Rs. 140 a month. Inappeal it was held that unless there are special considerations, a month’snotice has been regarded as reasonable under our law, that there was noreason to depart from the regular rule that a month’s notice is sufficientand that there was nothing to show that a dispenser per se, especially one
82 N. L. a. 26 J.
2 26 N. L. R. 208.
JAYEWARDENE A.J.—Labrooy v. The Wharf Lighterage Company. 87
-whose salary is a monthly one, is entitled to claim that his post is onewhich would entitle him to a longer notice than that accorded to theordinary rule.
A month’s notice has been held to be reasonable in Kaule v. Galle FaceHotel1, and not necessarily a calendar month’s notice. (Perera v. Robert-son '.)
In Beveridge v. Boustead3 the plaintiff was employed by the defendantsas engineer of the tramway works and was dismissed without notice.The Commissioner held that he was entitled to a month’s notice, or amonth’s salary holding that it was hard for an engineer in this countryto be suddenly turned out of employment for the demand for theftservices is not a large one and that reasonable notice was necessary.Withers J. held that the decision was a just one.
. The case of Perera v. Malalasekere4 is different. ’ There it was arguedthat it was a monthly contract but the words in which it was drawn upwere an indication that it was more than a monthly engagement andpossibly for an indefinite period.
In Forsyth v. Walker and Clark Spence 3 Macdonell C.J. laid down therules as to termination of contracts of employment as follows:—“Whenthe contract itself states the period of notice on which it may be deter-mined, that statement governs the question. Where though the contractis silent on the period of notice on which it may be determined, still acustom is proved that a contract of such a character can be determinedon such and such a period of notice, then that custom governs thequestion. Where the contract is silent on the period of notice on whichit may be determined and where no custom as to such period can beproved but still it is shown to be a contract terminable on notice of somesort, then the period of notice on which the contract is terminable mustbe a reasonable one. But there remains a further category. If a contractof employment is expressed to be for a definite period and nothing as toterminability on notice can be discovered or read into it, then its ter-mination by the employer without lawful cause before that definiteperiod has elapsed is a case of wrongful dismissal, and an instance of thegeneral rule that action will lie for unjustifiable repudiation of a contractwhether of employment or of any other character. The remedy for suchunjustifiable repudiation is damages ”.
In South Africa where there was no contract of service for a definiteperiod, but the employee had been in the service of the employer as amerchant’s clerk for more than three years and the salary having beenpaid at irregular intervals, there was nothing from which any inferencecould be drawn as to the term of the service, except the fact that thesalary had been calculateed in the books at so much a month for twelvemonths, the Court held that the service was by the month and that theclerk was only entitled to a month’s notice. (Venables v. Jarvis".)
7 Tomb. 146.5 406 D. • C. Galle, 29,137, S. G. M.
– 7 C. f.. Rcc. 92.27.1'1.30.
309 G. It. C'Uf-'ul-i.. oljl, S. C. . M.6 1 Menzics 314; and 3 Maasdorp 239.
*281 D. C. Col,mb.:. 32.307. S. C. M.
88 JAYEWARDENE A.J.—Labrooy v. The Wharf Lighterage Company.
In the present case the plaintiff says that he inquired as to the termsof his employment and he was told that he would be paid Rs. 150 amonth to start with and that he would be doubled in three months andlater on he would be given a share of the profits. I would hold that theservice was from month to month, the salary being paid monthly.
The general rule is that notice need not be more extensive than theperiod of payment, in English law. (Davis v. Marshall ) According to' Roman-Dutch law as laid down by Maasdorp, in an engagement of thischaracter from month to month, salary being payable monthly, theplaintiff is only entitled to a month’s notice. There is no reason todepart, as Ennis J. observed in Sirisena v. Kurugama Tea Co. (supra),from the regular rule that, a month’s notice is sufficient. In my viewthe plaintiff was not entitled to two months’ notice. I would vary thedecree accordingly. The plaintiff will bee decreed entitled to Rs. 150,being a month’s salary, with interest and costs in the lower Court asprayed. The defendant is entitled to the costs of the appeal.
1 (18C2) 4 Law Times Rep. 216.