(COURT OF APPEAL)*

BASILY BUSHARA v. ABDALLA MOHAMED OMER

AC-REV-311-1966

Principles

·  Employment—Continuous service—Depends on the terms of the contract concluded between the employer and the employee

Whether the continuity of service between the employer and his employed person is discontinued or not, depends solely upon the terms of the contract concluded between them. Therefore if the contract is broken by termination, the result is that the continuity of service under that contract is discontinued.

Judgment

Advocates: Ahmed Motwalli El Atabani and

Mohamed Yousif Mohamed for applicant

Osman El Tayeb J. October 24, 1966:- This is an application for revision from the order of Province Judge, Khartoum, dated June 8, 1966, summarily dismissing a similar application to him from the judgment and decree of District Judge, Khartoum, dated March 19, 1966, ordering pay ment by defendant to plaintiff of the sum of £S.15.000m/ms in lieu of notice for termination of a contract of employment.

The said contract was in writing and it stated that plaintiff was employed as a vehicle-driver at the daily wage of 867 Millimes. This was the daily wage when plaintiff was working outside the three Towns, and half of it when he was working inside the three Towns. The latter wage was increased to 500m/ms. Plaintiff alleged that he was employed from September 29, 1964, up to and including April 2, 1965, and therefore he was entitled to one month’s salary in lieu of notice. Defendant denied liability on the ground that plaintiff absented himself from his employment as from January 31, 1965, until March 2, 1965, and so he had not completed six months of continuous service, and since his employment was on daily wages basis he was not entitled to notice.

In the first place it was wrong to decide, supposing that plaintiff served for six months of continuous service, that he was entitled to one month’s notice, and so to be given a month’s wage in lieu of that notice. He could not be entitled to this unless he was employed on the basis of monthly wage. In his case his contract of service expressly states his employment to be on daily wage, which is governed by the Employers and Employed Persons Ordinance, s. (ii) (i) (c). This rule gives him one week’s notice, the wage of which amounts to £S.3.500m/ms. only.

The other point to be considered is that of the Continuous service for six months. It was proved that plaintiff absented himself for that period which was just a month; this made the rest of his service less than six months.

The learned District Judge referred the definition of continuous service which means “continuous service with the same employer...“ and said that defendant failed to prove that plaintiff had served during that period with another employer and so this period of absence should not be given consider’ation in deciding that plaintiff had completed six months of continuous service. The learned Province Judge agreed to this opinion. I do not think that this is a correct interpretation of the words “con tinuous service with the same employer.”

If it were to be accepted as correct it may lead to fantastic situations, take this example: an employed person, who was not entitled to holidays, after receiving his wages, he did not turn up, he went to his village and staved there for four months, cultivating his own lands, and enjoying his time at home. He returned and was engaged in his previous work with that same employer. Can it be said that, because he did not take employment with another employer, this period of four months has to be counted as continuous service. I do not think that this is acceptable nor that the Ordinance intended it.

In my opinion the continuity of service bears on the contract of service to the extent of their co-existence; if the contract is broken by termination, the result is that the continuity of service under that contract, is discon tinued and broken. Correlatively if the continuity is broken the result is, generally, that the contract is terminated or broken. The contract of service is meant to be a contract with one employer since with different employers there are different contracts. As every case must be considered on its own merits, the duration of the absence and the nature of the con tract of service, shall have to be taken in consideration in order to determine whether that particular contract was terminated or not.

In this case, the contract of service was that of a vehicle-driver on the basis of daily wage. The duration of absence was one month and two days, after service of only three months. In these circumstances, it can reasonably be inferred that plaintiff, by his unexplained absence, had abandoned the contract of service, in other words he brought it to an end. His return to the same service with that same employer is to be considered as being a new engagement under those same terms of the terminated contract. The continuity of service with that same employer was broken, and new service started, after re-engagement.

On the other hand, if the employer accepted him back on the same contract, in order to count his service from the date of signing that contract. I think, the period of the said absence cannot count in the calculation of continuous service. It is a period during which plaintiff did no work for his employer arid received no wages. For all intents and purposes plaintiff was not in the service of defendant during that peri justice and fairness require that plaintiff is not to be allowed to d: benefit from it, which he would otherwise not have. In my opinj when it is proved that the contract of service was not terminated, in a case, the period of such absence is liable to be deducted in the caIculatj of continuous service.

In all the circumstances, plaintiff had not completed six months of continuous service with defendant, that would have entitled him to r and consequently to wages in lieu of that notice.

This application is allowed, and the decree of the District Judge is set aside.

El Fatib Awouda J. October 24, 1966 —I entirely agree