Case No.:

(HC-CS-49-1960)

Court:

The High Court

Issue No.:

1960

Principles

·  Labour Regulation of employment —Wrongful dismissal—Lrnplo) ers and Employed Persons Orclinance .s. I0 (2)— Estoppel

Where an employee had been guilty of mis onduct such as to justify his dismissal without notice under section 10 (2) 0f the Employers and Employed Persons Ordinancc, his employer was not estopped from pleading this misconduct in an action for wrongful dismissal by the fact that he had previously accepted a witlidrass al ol resignation by the employee in connection with that misconduct.

Judgment

 (HIGHT COURT)

ATHANASSIOS. SACELIOU v. LAPPAS ENGINEERING

WORKSHOPS LIMITED

(HC-CS-49-1960)

Action

Advocates: Ahmed Fadi……….. For defendants

                    Abdalla El Hassan…… for plaintiff

June 20. 1960. Osman EL Tayeb J. —Defendants are an engineering company of Khartoum; they had taken a contract from the Government for the repairs of weighing machines under the control of the Department of Weights and Measures of the Ministry of Commerce, Industry and Supply. For this purpose they had to employ two expatriate officials to do the work, who were to he assisted by Sudanese fitters who had to be trained by those same two officials.

Plaintiff was one of those two officials; He came under a written contract, the relevant terms of which are as follows:

Para. 1: The Employer shall employ the Employee and the Employee shall serve the Employer for 2 (two) years from the first day of Ortohor 1956 pros ided that the Employer may at any time during the first year or any year thereafter terminate the contract for serous negligence or any act calculated seriously to injure the Employer, s business.

Para. 6: The Employee will be granted free passage to Khartoum by the Employer, and in case of Employee’s leaving the Sudan, if his residence visa be revoked by the Authorities or for any act of State, or for such other circumstances that make resumption of his employ ment rather impossible, he shall have free passage back to Greece on the occurrence of any of such circumstances.

Para.7: The Employee shall perform such duties as the Employer shall from time to time direct and shall devote his whole time, atten tion, energy and abilities during business hours to the business of the Employer.

Para. 10: Three months before the expiration of the term of service under this agreement either of the parties should give written notice to the other that the aforesaid agreement shall be terminated, other wise, the agreement shall be automatically renewed for a further term of years with the same provisions hereinbefore stated.

The plaintiff came to the Sudan and started his work as from December 1956. He completed the first two years ending in December I958 and as no notice of termination was given, the contract of service was auto matically renewed for another two years ending in December 1960. This is in accordance with paragraph (10) of the contract.

On October 1,1959, defendants served written notice of termination of the contract that reads:

Since our contract with the Sudan Government for repairs and maintenance of weighing machines has been expired on September 22, 1959 we are giving herewith three months’ notice’ for termination of your services as per agreement signed.

“Meantime we would like to thank you for your services rendered during this period.”

The plaintiff ceased to work by the end of December 1959 and brought this case contending that the notice was bad being in breach of and not in accordance with the terms of the contract, that his dismissal was wrongful and so he is entitled to damages amounting to his remuneration for the unexpired part of the renewed term of service from January to December 1960. He also claimed complete, free passage to Athens in accordance with the contract.

Defendants opposed the claim for damages on the grounds, allegedly, that the notice was valid to terminate the contract and secondly that the termination was for misconduct on the part of the plaintiff under section 10 (2) of the Employers and Employed Persons Ordinance.

It is clear that the notice of October 1, 1959, is bad because it is not in accordance with paragraph (10) of the contract. The notice must be given three months before the expiration of the subsisting term of the contract. The contract was renewed ‘for two years from January 1958 to end in December 1960. A valid notice must be given to terminate the contract by the date of the expiration of the term. The notice here was intended to terminate the contract before the expiration of the term.

The notice puts the reason for termination of the contract to be that the contract of defendants with the Government for the repair and mainten ance of weighing machines was terminated, which means that the services of plaintiff were no longer required. This reason did not form part of the contract with plaintiff, and it was not specifically raised in the case, but the learned advocate for plaintiff submitted that that and other facts constituted anestoppel-preventing defendants from relying on the alleged misconduct of plaintiff. The other facts were that plaintiff had in I9 resigned his post, but the resignation was cancelled by agreement and he was accepted back by defendants in continuation of the first contract.

I should say that there is nothing in that which should estop defendaijts from raising the alleged misconduct of plaintiff as being the reason for the dismissal without notice. The conduct of defendants can be described as tolerance to the alleged misconduct until such time they found it impossible to retain him in their service.

The termination of the contra for misconduct is a statutory condition, and in addition it was embodied in paragraph r of the contract between the parties. Section 10 (2) of the Employers and Employed Persons Ordinance reads:

“An employer may dismiss without notice an employed person for wilful disobedience of a lawful order, or gross misconduct in or connected with his employment, or’ serious negligence or wilful misconduct calculated seriously to injure the employer’s business.”

Paragraph i of the contract quoted some of the words of the aforesaid Section as follows:

“Serious negligence or any act calculated seriously to injure the employer’s business.”

The meaning of the section, 1 think, is clear. For the purposes of this case, I can say that the law is in to afford protection to an employer against an undesif able employee: the one who does acts or behaves contrary to the interests of the employer’s business. An employee who does not obey orders, or who does not devote his time and attention to the work during working hours, or who meddles with other employees in a manner to obstruct or delay them from devoting their time and attention to their work can be held to have committed misconduct that may seriously injure the employer’s business.

the the meaning of the section ,Ithink ,is clear .For the purposes of this case ,Ican say that the low is intended to afford protection to an employer against an undesirable employee :the one who does acts or behaves contrary to the iterests of the employer,s business .An employee who does not obey orders ,or wo does not devote his time and attention to the work during working hours ,or who meddles with other employees in amanner to obstractor delay them from devoting their time and attenton to heir work ,can be held to have committed misconduct that may seriously injure the employer,s business.

I shall review the evidence to see what acts or behaviour can be attributed to plaintiff that can fall within the meaning of t’ section.

The manager of the defendants gave evidence that he had been in 1957. 1958 and 1959 receiving many complaints from the fitters who were work ing with the plaintiff. He mentioned two incidents in which the fitters on their return from trips with plaintiff submitted their resignations, and their reasons were that plaintiff used to quarrel, insult and badly treat them. He adds: “ In 1958 after a lot of remarks I made to plaintiff, he decided to resign. I accepted it, as I found it difficult to conciliate between him and the fitters.” On the request of some friends the resignation was withdrawn. The manager said that he had received complaints about the work of plaintiff from the Ministry of Commerce, Industry and Supply. Abdel Gabil (DW.2), one of the fitters, gave evidence that once plaintiff abused him with very bad words during the work. He adds that plaintiff was badly treating the men and making continuous quarrels with them. Abdel Rahim (DW. one of the fitters, stated that when they were once in Juba, plaintiff used to play cards during work hours, which fact he reported to the manager. He adds that once plaintiff quarrelled with another Nun until they exchanged blows. Plaintiff was generally badly treating them and provok ing and exciting them to fights and abandonment of their work. Abdel Rahman (DW.4) stated that the conduct of plaintiff was bad and his treatment of the fitters was also so bad that it brought about discontent to all of them.

I find from this evidence that p1ainti is a man of coarse conduct and rude temper. He used to shout at, insult and abuse the other employees. He quarrelled and provoked them to quarrels during the work. This is, to my mind, meddling wit-h the employees in a manner that obstructed or delayed them in the performance of their duties, with the result that the employer’s business would be seriously injured.

In conclusion, I am of opinion that defendants are justified in dis missing plaintiff without notice, and so no breach has been committed and he is not entitled to damages.

As to the free air passage to Athens, the defendants are not categorically denying liability thereof, and the manager stated in his evidence that they authorised the Olympic Airlines to issue the said ticket to plaintiff and that it is still there at the disposal of plaintiff. De&ee shall be issued in favour of plaintiff for the payment of the value of the ticket by air to Athens, and the rest of the claim be dismissed with costs.

                                                                                    (Order accordingly)*

An appeal (AC/APP/19/1960) was summarily dismissed by the Chief Justice under Rule 13A, Order Xl, Civil Justice Ordinance.