WEER.ASQOR.rYA, J.—Fernando t>. Silva
Present: Pulle, J., and Weerasooriya, J.K.. L. FERNANDO, Appellant, and A. A. DE SILVA,
S. C. 274—D. C. Balapitiya, 572jM
Employer and employee—Action, for wrongful dismissal—Contract of service—Notice oftermination.
Under the Roman-Dutch Law no special form of notice is required for the.termination of a contract of service between employer and emploj ee.
What is reasonable notice of termination of a contract of service depends onthe circumstances of each case
Where the Headmaster of a school gave notice to his employer, the Manager,in such terms and under such circumstances that the Manager could reasonablyconstrue it as a month’s notice—
Held, that an action for wrongful dismissal would not lie.
PEAL from a judgment of the District Court, Balapitiya.
Sir Lalita Rajapakse, Q.G., with G. V. RanawaJce and D. E. V. Dissa-nayake, for plaintiff-appellant.
A. L. Jayasuriya, with M. Markhani, for defendant-respondent.
Cur. adv. wit.
September 9, 1958. Weerasooriya, J.—
The plaintiff-appellant was the Headmaster of a school of which thedefendant-respondent is the Manager, and he seeks in these proceedingsto recover from the defendant a sum of Rs. 10,000 as damages on twocauses of action. On the first cause of action a sum of Rs. 5,000 isclaimed for wrongful dismissal of the plaintiff on or about the 2ndSeptember, 1952, from the post of Headmaster. On the second causeof action a further sum of Rs. 5,000 is claimed for humiliation anddisgrace inflicted on the plaintiff by the defendant on the occasion of thealleged wrongful dismissal.
After trial the learned District Judge rejected both claims and dismissedthe action with costs. Hence the present appeal by the plaintiff. Theappeal against the rejection of the claim on the second cause of actionwas not pressed by Sir Lalitha Rajapakse who appeared for the appellant,and the only matter on which we reserved judgment was in regard tothe claim under the first cause of action.
Although the defendant’s answer contained only a bare denial of theaverments in the plaint, at the trial the position taken up by him on thefirst cause of action was that he did not dismiss the plaintiff but theplaintiff terminated his services after giving notice which was acceptedby the defendant.
WEERASOOR.IYA, J.—Fernando v. Silva
It would appear that for some time prior to August, 1952, feelingsbetween the two parties were strained- In the letter Dl dated the 18thJune, 1952, the plaintiff complained that the defendant was workingagainst him. He also stated that he had in mind to leave the defendant’sschool “ as early as possible ” and that he had written to several schoolsapplying for a post as head teacher or an assistant teacher. In I>3of the 2nd July, 1952, the plaintiff reiterated his decision to leave andadded : “ Sometimes I will be able to give notice of leaving on the 1stif I could obtain the privileges I am asking for. My intention is toconduct a teachers’ swabasha newspaper while running my tutory also.If I am successful in these I think I will be able to.give you notice on the1st ”. This letter was followed up by D4 dated 1st August, 1952, inwhich the plaintiff stated : “ About my leaving I made arrangements.
I am willing ”, and having then said that his wife was against his leavinghe continues : “ However the matter may be I am not willing to stayback ”.
The substantial point for decision is whether the letters Dl, D3 and D4,read together, amounted to a notice given by the plaintiff on the 1stAugust, 1952, terminating his employment under the defendant. Thelearned trial Judge has answered that question in the affirmative, andif the letters can reasonably be so construed we would have no ground forreversing in appeal the finding of the trial Judge.
Under the Roman Dutch Law, which governs the case, no specialform of notice is required for the termination of a contract of servicebetween employer and employee. It is self-evident, however, that theparty wishing to terminate the contract should communicate his intentionto the other party in unambiguous terms, giving reasonable notice oftermination where the contract itself does not provide for a specifiedperiod of notice or the matter is not regulated by custom. What isreasonable notice will depend on the circumstances of each case.
In the letter D3 dated the 2nd July, 1952, to which I have alreadyreferred, the plaintiff stated that if he is successful in making certainarrangements he hoped to be able to give the defendant notice “ on the1st”. The arrangements are those mentioned in the extract from D3reproduced earlier. I think that “ the 1st ” means the 1st of August,1952. That the plaintiff was able to make the arrangements referredto is confirmed in the next letter D4, dated the 1st August, 1952. Inthis letter too the plaintiff has stated that he was not prepared to stayon. The precise meaning of this letter is best given in the words of the'plaintiff himself who on being questioned about it said : “I wrote theletter indicating that I was leaving school but intending not to leave ”.But any mental reservation on the part of the plaintiff would not availhim if the letter can reasonably be regarded as a notice of terminationof his employment under the defendant. The learned trial Judge has.held that D4 taken in conjunction with D3 amounted to such notice.That these two letters constitute a notice given by the plaintiff on the
PTJLLE, J.—Fernando v. Silva
1st August, 1952, of the termination of his employment does not, in myopinion, admit of any doubt. The only uncertainty (for which theplaintiff alone is responsible) would appear to be in regard to the periodof the notice so given. As appears from the ** discontinuance ” form P7the defendant has treated the period of the notice as one month, i.e.,from the 1st August (when D4 was received) to the 31st August, 1952.On the 9th August, 1952, he advertised the post of head teacher in hisschool as vacant and called for applications—(P8). The school was thenin vacation and was not re-opening till the 2nd of September, 1952.The plaintiff thereupon wrote the letter P9 dated the 11th August, 1952,to the Education Officer, Galle, stating that he “ did not give notice todiscontinue the Headmastership ” of the school. Curiously enough,this letter was not sent to the defendant as one would expect the plaintiffto have done if the action of the defendant in calling for applicationsfor the vacant post of Headmaster had taken him by surprise. It isalso significant that although the advertisement did not disclose thereason why the post had fallen vacant the plaintiff stated in P9 that hedid not give notice of discontinuance.
In my opinion the letters D3 and D4 may reasonably be construedas a notice given by the plaintiff on the 1st August, 1952, that he wasterminating his employment with effect from the 1st September, 1952.The plaintiff in his evidence did not suggest what other constructionmay be given to those letters.
Sir Lalita Rajapakse for the plaintiff has submitted that in the caseof the employment of a head teacher of a school the reasonable periodof notice should be at least three months. That may well be so, but Ido not think it is necessary to decide the point since the plaintiff himselfelected to give a shorter period of notice which the defendant accepted,as he was entitled to do.
I am unable to say that the learned trial Judge came to a wrongconclusion in regard to the construction of the letters 3)1, 3)3 and 3)4,and I would dismiss the appeal with costs.
I agree. In the course of the argument I felt some doubt whetherthe plaintiff’s letter 3)4 in particular of 1st August, 1952, was a validnotice of termination of the contract of service, because the actual dateof termination was not specifically mentioned. I agree with my brotherWeerasooriya that it is not possible to say that having regard to theletters 3)1, D3 and 3)4 the learned trial Judge was wrong in holdingthat the plaintiff had terminated his contract of service. If an employeegives notice to an employer in such terms and under such circumstancesthat the employer could reasonably construe it as a month’s notice,as in this case, an action for unlawful dismissal would not lie.