Case No.:

AC-REV-276-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Employment—written contract requirement Employers and Employed Persons Ordinance. s. 4 (i)—Applies when neither party can terminate for six months

The requirement of writing in Employers and Employed Persons Ordinance 1949, s. j (i), applies only to contracts of service wherein both parties agree not to terminate for six months.

Judgment

(COURT OF APPEAL)

SIDDIG MOHED YOIJSJF v. ABUL ELA COTTON GINNING CO.

AC-REV-276-1961

Advocate: Abdel Basit Abdel Moneim ... for defendant-respondent

Babiker Awadalia 1. November 7, 1961: —Applicant is a fitter and respondents are the owners of a cotton-ginning factory at Hamadaallá, Blue Nile Province.

By virtue of an oral agreement, applicant was in January 1955 employed by the respondents at a monthly salary of £S.15 He continued in their service until November 1960 when he was dismissed.

On December 3, i96o, he petitioned the Wad Medani District Court for his entitlements under the Employers and Employed Persons Ordinance, 1949. Respondents pleaded absence of a written contract or memorandum satisfying the conditions of s. 4 (1) of that Ordinance. That section reads as follows:

No action shall be brought upon any contract of service which is not to be completed within the space of six months from the making thereof unless the said contract or a sufficient memorandum thereof is in writing and signed, sealed or thumbed by the parties thereto or their agents in that behalf.”

The learned District Judge accepted this argument but said that it did not preclude applicant-plaintiff from suing under the general principles of contract for wrongful dismissal.

The respondents applied for revision to the Honourable Judge of the High Court who ruled that fail ire to comply with the provisions of Employers and Employed Persons Ordinance, s. 4, precludes any other cause of action.

In my view both the Honourable judge of the High Court and the learned District Judge are confusing two entirely different things, a contract of service which is not to be completed within the space of six months from the making thereof and a contract which actually subsists for that time even though it was not intended at the time it was made to subsist for that time. Employers and Employed Persons Ordinance, S. 4 (i) can only apply when the contract of service contains an agreement on both sides not to terminate it before the lapse of six months. But if a person is employed without reference to time and he continues in the service for six months or more without any obligation on his employer to retain him from that time, then his case does not fall within the section. The material time, which governs the question whether a contract falls under Employers and Employed Persons Ordinance, s. 4 (1), or otherwise is not the date of dismissal, but the date of the contract.” The rejection of the claim under the Ordinance in this case was therefore in my opinion incorrect.

This application is therefore allowed with costs and case returned back

for retrial.

Al. .4. .4bu Rannat C.J. November 7, 1961: —l concur.

Court: M. A. Abu Rannat C.J. a B. Awadalla I.