Cur. ado. vult.
4th February, 1896. Lawbih, J.—
The aooused is a road oooly under the Publio Works Department.In Ootober last he Vas employed iq breaking road metal, and solong as he was so employed the amount of his pay depended on thequantity of metal he broke—so maoh a yard or oube. He leftwithout notice. He was tried for desertion and sentenoed to fiveweeks’ imprisonment.
It is contended by the aooused that while he was employed tobreak stones at so muoh a oube, he was not a monthly servantbeoause he was performing work by the job.
The only deoision of this Court to whioh I have been referredas analogous to this is that reported in 8, where Burnside,O.J., held that a oooly employed on a weeding contract was on jobwork, and that beoause that oooly was not paid a monthly wage at adaily rate, but was paid monthly at any daily wage he might earn,therefore he was free to work or not as he ohose. If this oase wason all fours with that, I could follow it. But I think it is notidentioal. I hold that this aooused was bound by oontraot to servehis employer from month to month at the Ordinary work at theusual wages of Publio Works ooolies, and that the Distriot Engineerwas bound to give him work and to pay him.
• I am not of the opinion that a oooly is entitled to pay if he doesnot work. It is reasonable, and 1 think lawful, for employers oflafiSur to have a oheok on their labourers, so that a fair day’s payshall not be given for a bad day’s work.*
Here there was plenty of work for the oooly to do, but it wassolitary work, and the oheok to prevent the day being 'spent in
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Ftbruary 4.Lawbib, J.
idleness was, that the day’s pay depended on the man's activity.I do not think that that made it a job.
In this case the cooly did not contract to perform any definedjob; he contracted to work on labour .incident to the routine ofPublic Works employment.
I have said enough, however, to show that this is not altogethera clear case. The cooly may be excused if he thought he was notunder the Ordinance.
I think he was rightly convicted, but I cannot punish him severely.
The law is somewhat obscure. I affirm the conviction, but Ireduce the sentence to one week’s simple imprisonment.