036-NLR-NLR-V-26-SIRISENA-v.-KURUGAMA-TEA-CO..pdf
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1924.
Present: Ennis J. and Jayewardene A.J.
SIRISENA t>. KURUGAMA TEA CO.
489—D. C. Kandy, 31,004
Contract of service—Estate dispenser given one month's notice—Action forthree months' salary in lieu of notice—What is reasonable notice.
A dispenser who was employed on an estate on a monthly salaryof Rs.140, and whowasdischarged afteronemonth's notice,
claimedin this action threemonths* salary inlieuof notice. The
DistrictJudge awardedhimtwo months' salary inlieu of notice.
Held, that in the absence of special circumstances, he was entitledro only one month's notice.N
mHE plaintiff was employed as a dispenser on Kurugama estateX on June30, 1920, on amonthly salaryofRs. 140. On
February 23, 1923, he was given notice that his services would bedispensed with' from and after March 31, 1923. The plaintiffalleged that* he was not given sufficient notice, and claimed threemonths* salary in lieu of notice.
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The District Judge (Dr. P. E. Pieris) held :—1924,
*■ Sirietna v*
The main question is as to the amount of notice plaintiff was entitledto receive. Notice should be such as would enable the party noticedto have a reasonable opportunity of securing a suitable post by the dateof the expiry of the notice. It is by no means easy to secure a post,with a salary of Rs. 140 a month. I think it would be reasonable tohold plaintiff entitled to two months* notice from February 23, 1928.
Therefore, in the nett result, I allow plaintiff balance due for MarchRs. 46.80, salary in lieu of notice till April 23, Rs. 107. Of this, Rs. 46.30has been deposited in Court. Plaintiff can draw that sum, and havejudgment for a further Rs. 107 with Court of Requests costs in thatclass.
Oarvin/ior defendant, appellant.
H. V. Pereray for plaintiff, respondent.
July 21, 1924. Ennis J.—
In this case the plaintiff claimed three months’ salary in lieu ofnotice*. The plaintiff was a dispenser on an up-eountiy estate.
He was given one clear month’s notice. He claimed three. Thedefendant brought into Court sufficient money to pay on the basisthat the defendant was entitled to one month’s clear notice.- Thelearned Judge held that “ Notice should be such as would enablethe party noticed to have a reasonable opportunity of securing asuitable post by the date of the expiry of the notice. It is by nomeans easy to secure a post with a salary of Rs. 140 a month.
I think it would be reasonable to hold plaintiff entitled to twomonths’ notice. ” On this basis he gave the plaintiff judgment foran additional month’s pay. For the purpose of the judgment, thelearned Judge counted the two months’ notice as from the daywhen notice was actually given* The appeal is from that decision.
The contract of service in this case is one governed by Roman-Dutchlaw, as a dispenser does not fall within the categories of personsdealt with by the Labour Ordinances. Maasdorp says in connectionwith contracts of this type: “ The employee will be entitled to areasonable 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 beingpayable monthly, he will be entitled to a clear month’s notice, suchmonth to terminate at the end of a month of the service, so thatwhen notice has been given during the currency of a month, thecontract will only terminate at the end of the following month.
Again, in the case of an indefinite "hiring where the contract is of anyearly character, it would appear that three months’ notice issufficient, such notice to terminate at the end of the current year. ’<’
It would seem, then, that where the contract does not expressly
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llii gay whether the hiring is for a year or a month, in such a case wemust look to the service and the salary to see what compensation
* would be reasonable. The salary affords the best indication as to
J^**10*' whether the service is from month to month or of a different charac-
TwOaT ter. In this case* the plaint shows that the salary was one payablefrom month to month, and there is nothing in the evidence to showthat the post held by' the plaintiff was one which would indicate thatthe contract had a yearly character. The character of the officedoes not turn on the professional nature of the services, althoughthat may be a feature in general circumstances. For instance, ateacher of music might or might not hold a post of a yearly character.The question would depend not on the professional character ofthe service, but on the tenor of the engagement. There is, therefore,nothing to show that the Ordinary rule that a dear month's noticeterminating at the end of a month of the service should be departedfrom in this case. Had the post been one of a yearly character,then the plaintiff should have been given salary on the basis onthree months* notice and not on two months* notice, if one mustfollow the rule laid down in Maasdorp. The rule is laid down byNathan in vol. II., 2nd ed., p. 902,. in terms almost identical withthe terms used by Maasdorp, except that he makes no mentionwhatever of services of a yearly character. The only instancecited by Nathan where the month's rule is departed from was aninstance in which it was held that the engagement was a dailyone. In the absence of any’ evidence that the post in this casewas one which could be deemed to be one of a yearly character,there is no reason to depart .from the regular rule that a month'sclear notice is sufficient. There is nothing to show .that a dispenser,per se, especially one whose salary is a monthly one, is entitled toclaim that his post is one which would entitle him to a longer noticethan that accorded by the ordinary rule** I would accordingly allowthe appeal, with costs, and set aside .the decree of the lower Court,and dismiss the plaintiff's action, but make no order for costs in..that Court.
Jayewardene A.J.—
I agree. I think that the Roman-Dutch law rules on the pointinvolved in this case are based on the principle that a servant isentitled to reasonable notice. Unless there are special considera-tions, a month's notice has been regarded as reasonable under ourlaw. There is no evidence in the present case to justify a departurefrom the general rule, and the learned Judge's reasons for holdingthat the plaintiff is entitled to two months’ notice are not supportedby the evidence in the case.
Appeal allowed.