Principles

·  Employment—Dismissal—“Gross misconduct … negligence or willful misconduct”—Employers and Employed Persons Ordinance, 1949, the Schedule. s. 10 (2)—Construed

 A worker authorized to carry off two little pieces of wood, carried off four and was dismissed without notice and gratuity.
Held since the right to work cannot be disturbed without strong justification, Employers and Employed Persons Ordinance, 1949, the Schedule, s. 10 (2), must not be construed to allow dismissal of a worker guilty of a trifling error not cognisable by the criminal law.

Judgment

Advocates: Shawgi Mallasi …………………………………………………. for plaintiff

                   Ahmed Guma’a …………………………………………………for defendant

M. Y. Mudawi P.J. September 28, 1963: —On April 21, 1962, plaintiff, Awad Saleh, an ex-employee of the Blue Nile Brewery of Khartoum North, aged 32, instituted these proceedings against his ex employers for wrongful dismissal and claimed the following amounts:

£S.420.000m/ms due to him on a pension scheme

28.000m/ms in lieu of one month’s notice

18.000 m/ms in lieu of 20 days’ leave

6.000m/ms ticket to his home

50.000m/ms for 311 hours’ overtime

39.000m/ms bonus (yearly)

252.000m/ms damages for wrongful dismissal

Alternatively plaintiff claims:

£S.84.000m/ms gratuity, plus the other items enumerated above excluding the `amount claimed under pension scheme.

Defendants resisted the claim on the ground that plaintiff was dismissed for gross misconduct under Employers and Employed Persons Ordinance. s. 10 (2)

  The court on hearing the evidence on both sides considers the facts of the case to be as follows:

 Plaintiff was employed by defendants as a gate-keeper on November 20, 1955. There was no written contract to regulate the relation between the parties. Plaintiff was paid a monthly salary which started as £S.12 per month and increased gradually to become £S.28 at the time the services of plaintiff were terminated. I was shown a time-table of the progress of plaintiff’s salary (Exhibit A Between March 1, 1959 and February 28, 1962, the aggregate amount received by plaintiff during this period was £S.839 On March 26, 1960, defendants introduced a pension scheme embodied in Exhibit P.3. The essential clauses of the scheme run as follows:

6. Retirement shall normally be at age 55 with the consent of the company and with the approval of the Trustees members may retire within five years before or may defer their retirement beyond that age.

7. Upon retirement at or beyond age 55 a member who has completed at least five years’ pensionable service and upon retirement at an earlier age than 55 a member who has completed at least ten years’ pensionable service shall receive a pension monthly in advance (or as the Trustees may determine) for a period of five years certain and for the member’s lifetime thereafter equal to one-sixtieth of a member’s average pensionable salary over the last three years of service for every year of pensionable service with a maximum of 40 such years.

8. Upon retirement due to the incapacity arising out of ill-health or injury (of which the Trustees shall be the judge) a member shall receive reduced benefits in the opinion of the Trustees (acting on actuarial advice) equal in value to the accrued benefits attributable to the pensionable service already served and to the pensionable salary already enjoyed by the member.

9. Upon the death of an employed member before retirement there shall be payable from the fund a sum which is in the opinion of the Trustees (acting on actuarial advice) equal in value to the member’s accrued pension at the time of death having regard to the years of pensionable service already served and the pensionable salary then enjoyed. Provided that whosesoever necessary such sum as aforesaid shall be increased:

a). in the case of a member with five or more years’ pensionable service to one year’s pensionable salary.

(b) In the case of a member with less than five years’ service to one-half of one year’s pensionable salary.

The employees do not pay any contributions.

            Plaintiff applied for membership of the scheme and his application was accepted as from November 1, 1956.

However, on February 26, 1962, plaintiff asked to be given a gate pass to take out two pieces of wood each about 1 metre long and 3 inches wide, apparently salvaged from wooden boxes in which beer chemicals were kept. That day at noon plaintiff was caught carrying four pieces of wood instead of the authorised two. A hue and cry was raised. Investigations took place and plaintiff on February 28, 1962, was dismissed, without notice and without gratuity. We are told that the dismissal was made under Employees and Employed Persons Ordinance, s. 10 (2).

   Plaintiff then came to this court.

The vital question to be decided is whether the dismissal of plaintiff under Employers and Employed Persons Ordinance, s. 10 (2), was correct. The wording of section 10 (2) is as follows:

“An employer may dismiss without notice an employed person for willful disobedience of a lawful order or gross misconduct in or connected with his employment or serious negligence or willful misconduct calculated seriously to injure the employers’ business.”  The defendants urge this court to believe that the unauthorized removal by plaintiff of two pieces of wood worth about 6 or say 10 piasters is “willful disobedience of a lawful order or gross misconduct . . . or serious negligence, etc.” I must say from the start that this court is diametrically opposed to the interpretation assigned to the section by defendants. The right to work is as sacred as the right to life, liberty and property and it must therefore not be disturbed without very strong justification. The removal of these wretched bits of wood cannot by any standard amount to serious negligence or gross misconduct. The wood was apparently salvage and as the evidence goes the management freely allows the workers to remove it for domestic use, albeit with a written authority called a gate pass. I feel it will be cruelty itself to allow a trifling incident to have the drastic consequence of depriving a workman of the fruits of five or six years of toil and sweat. The standards we should apply are “those of men and not those of angels.” I am sure had this man been sent to a court of criminal jurisdiction he would have been acquitted, the matter being de minimis non curat lex.

In view of this I conclude that Employers and Employed Persons Ordinance, s. 10 (2), has no place here and plaintiff was therefore wrongfully dismissed.

I propose now to take the claims of plaintiff one by one.

1. £S420.000m/ms pension scheme: Exhibit P.3 sets out the pension scheme regulations as finalised by the company. Rules 6, 7, 8 and 9 lay down the conditions under which a workman may be entitled to a pension. Fifty-five years is the normal retiring age and subject to the consent of the company and the approval of the scheme trustee a workman may retire five years earlier or may continue to work beyond 55. According to rule 7 a workman who retires at the age of 55 and has been a member of the scheme for five years is entitled to benefits of the scheme. A man who retires at an age less than 55 and has been a member of the scheme for ten years is also entitled to the same benefits. Rules 8 and 9 deal with men who are retired because of incapacity or ill-health or death.

 According to these rules plaintiff is unfortunately not entitled to any benefits under the scheme. He is 32 and had been a member for about five years, He does not qualify under any of the above rules. Hence his claim for pension is ruled out.

2. £S.28.000m/ms in lieu of notice: Plaintiff according to the evidence works on a monthly basis. He is therefore entitled to one month’s notice or else he should get the salary due for the month.

3. £S.18.000m/ms in lieu of 20 days’ annual leave: There is no evidence to show that plaintiff was entitled to any leave at the time he was dismissed. His last leave was taken in August 1961. He was dismissed by the end of February 1962. His right to a leave matures only after a completion of the year.

4. £S.6.000m/ms value of a ticket to his home: This man was wrongfully dismissed. In ordinary circumstances he is entitled to £S.6.000m/ms travel expenses to his home. After dismissal I believe it will be fair to give him a ticket home. He is therefore entitled to £S.6.000m/ms.

5. £S.59.000m/ms for 311 hours’ overtime: We have no evidence to support this claim. We have plaintiff’s word alone as opposed to the evidence of Mr. Friend who told the court that plaintiff’s overtime was not more than £S.5.545m/ms

6.  £S.39.000m/ms bonus: There is no evidence to support plaintiff’s claim in this item. His claim is therefore dismissed.

7. £S.252.000rn/ms damages being the equivalent of the salary due to plaintiff from date of dismissal to end of the year 1962: There is no written contract of service between plaintiff and defendants and we had no evidence before us to show that plaintiff was employed from year to year. His salary is paid to him on a monthly basis, and the only inference we may be in a position to draw is that his employment is from month to month. Hence we have to dismiss this claim.

8. £S.84.000m/ms being gratuity under the Employers and Employed Persons Ordinance: This is a claim alternative to the right under the pension scheme. It is governed by Employers and Employed Persons Ordinance. s. 25. Plaintiff had been in the employ of defendants between November 20, 1955 and February 28, 1962. That is he worked for six years and three months. He is entitled to the salary of three months and four days as gratuity calculated on his average monthly salary during the three years preceding his dismissal. It is £S.23.300m/ms. The aggregate amount due for three months and four days is £S.72.900m/ms.

In view of the above plaintiff is entitled to the following amounts:

£S.72.9000

6.000m/ms

5.545m/ms

28.000m/ms

£S.112.445m/ms in principal

          6.730m/ms in court fees

          7.750m/m in advocate costs

£S.126.925m/ms in all.