(Court OF APPEAL)*

ABDEL MASIH TASEAY v. EL TAWFIC COPTIC SCHOOL FOR FIRLS

 AC-REV-2-1965

 Principles

·  Employment-Right to holidays -Employers and Employed person Ordinance s, 22 (1)-Deals with protection of private rights-can be waived by employed person

Employed person can waive his right to holidays under Employers and Employed  persons Ordinance, s,22 (10 , by not swingiest intention to ask for his yearly holiday, because such section deals with the protection of the individual right which can be waived without infringing any public right of public policy.
 

Judgment

Osman El Tayeb J. January 26m1965:- applicant (plaintiff) was employed by respondents (defendants) as a farash in their school, in which employment he continued for ten years, in JULY 1963 his employment was terminated by one month’s notice.

Applicant instituted his suit in Omdurman District Court claiming:

(a)    One month’s salary in lieu of notice.

(b)   Gratuity at the rate of half month’s salary for every year of period of employment, and

(c)    The sum of Łs.25 as compensation for his annual holidays that he had never been grnted during the whole period of his employment. It is not clear how the sum of Łs, 25 was calculated.

Respondents resisted the whole claim, and the learned District Judge, in a clear way of thinking, awarded applicant the gratuity claimed by him, and dismissed the claim in respect of the two other items. On application for revision from the decree of the learned District Judge dismissed the application summarily, but unfortunately without consideration of that item of the claim in respect of compensation for holidays of which he was allegedly deprived and which was the subject of the application for revision there and is also here .

Admittedly applicant had not been going on holiday yearly in the ordinary sense of a holiday. He was working all the time while the school was open, and during the closing period he used to remain in the premises of the school as a Ghafir and was continuously drawing his salary. The learned District Judge in his interpretation of the Employer and Employed persons Ordinance, s, 22 (1) learned towards what might be a waiver of the right to have holidays. The section says:

“ an employed person shall be entitled to fifteen consecutive days service” if I could understand him correctly the learned District Judge service” if I could understand him correctly  the learned District Judge meant to say that the employed person was thereby endowed with right to have a holiday, and  he was to enjoy that right on demand. And if  he demanded and the employer did not a accede to his demand, then the employed person would have been entitled to compensation or remuneration in lieu of holidays.

I find myself in agreement with this opinion, and it appears to me that the point was rihgtly decided on the concept of waiver of a right. The right  to a holiday, in absence of any agreement thereto, has been established and fixed by the Ordinance, and it is a right that accrues to the employed person on serving a year. He served for many years. Without showing  an intention to have his yearly holiday.

“Everyone has aright to waive and to agree to waive the advantage of a law or rule made solely for his benefit and protection of  the individual I his private capacity, which  maybe dispensed with without infringing any public right or public policy . when I an Act there is no  express provision against contracting out of it, it is necessary to consider whether an Act is one which is intended to deal with private rights only, or whether it is an Act which is intended as a matter of public policy, to have a more excessive operation” (Maxwell, “interpretation of statutes” (11th ed, 1962) p.376).

The Employer and Employed person Ordinance is an Act intended to deal with private rights only, for the benefit and protection of employed persons. Applicant has right to waive his rights under the Ordinance, and that was clear from his conduct.

Application for revision is summarily dismissed.

* Court: Osman El Tayeb J.