Ryan v Lindsey

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Floissac, C.J.,Byron, J.,Liverpool, J.
• Judgment Date: 11 October 1993
• Neutral Citation: MS 1993 CA 7
• Docket Number: No. T1 of 1992
• Date: 11 October 1993

High Court/Court of Appeal

Floissac, C.J. Byron, J. Liverpool, J.

No. T1 of 1992

Ryan

and

Lindsey

Industrial relations - Summary dismissal — Respondent employed for over five years — Summarily dismissed for failure to perform duties assigned to her — Tribunal awarded respondent payment in lieu of notice — Whether common law right of summary dismissal preserved under statute — Whether respondent's conduct constituted repudiation of contract of service — Whether employee summarily dismissed for good and sufficient cause entitled to payment in lieu.

1 JUDGMENT OF THE COURT: The respondent was in the employment of the appellant for more than 5 years. Slue was then summarily dismissed. She accordingly referred her dismissal to the Labour Tribunal established under section 3G(1) of the Employment Ordinance No. 19 of 1979 (the Ordinance) of Montserrat.

2 In a decision given on the 26th June 1992, the Tribunal stated as follows:

“The Tribunal having heard and examined the evidence adduced by the applicant and the defendant and the witnesses called on their behalf found the following facts: 1. The applicant was employed by the defendant continuously from the 25th day of September 1985 to the 26th day of October 1990. 2. The applicant during the course of her employment received a salary of $224.20 per week. 3. The applicant was employed by the defendant as a cashier and was required also to pack goods on the shelves of the store from time to time. 4. The applicant was warned on several occasions during the year 1990 about the standard of her work and her lack of discipline. The applicant was suspended on the 27th day of August 1990 for a period of two weeks as a result of her lack of discipline. 6. On September 10, 1990 the applicant apologise to the employer 7. On resumption of her duty after the period of suspension the applicant was given the task of store floor assistant which included packing of freezers and chiller and also performed the duties of cashier occasionally. 8. On the 26th October, 1990 the defendant instructed the applicant rearrange a chest freezer in the shop. 9. The applicant failed to carry out this instruction which was within the terms of her employment. 10. The applicant spoke to her father, Mr. Ronald White, in the presence and hearing of the defendant in the shop about the instruction given by the defendant and Mr. White in the presence and hearing of defendant said People like he want somebody burst his fucking head. (11. The defendant spoke to Mr. White in the presence of the applicant about the applicant's attitude towards work and informed the applicant that she was dismissed and that she should return the following day to collect her letter of dismissal. 12. The letter of dismissal was given to the applicant on the 27th day of October 1990. 13. The applicant was dismissed summarily. 14. The reasons for dismissal were the applicant's failure to perform duties assigned to her and her behaviour in the presence of her employer on the 26th October 1990.”

3 The Tribunal concluded as follows:

“Section 12 of tire Employment Ordinance No. 19 of 1979 sets out the reasons for dismissal which will not give rise to compensation. While Section 14 of the said Ordinance places the burden on the defendant to show that the reason for dismissal was one of these allowed by subsection 2 of section 12 of the Ordinance.

The Tribunal is of the view that the defendant has discharged this burden. The Tribunal is of the opinion that having regard to all relevant circumstances the facts found by the Tribunal it was unreasonable for the employer to continue the employer-employee relation. However, the Tribunal is of the view that the circumstances were not such as to warrant summary dismissal.

Section 10 of the Employment ordinance sets out the minimum notice required to be given by an employer to an employee to terminate the contract of employment. The applicant having been employed by the defendant from September 1985 to October 1990, a period of five (5) years and one (1) month, in accordance with the provisions of Section 10(1)(c) the applicant was entitled to four(4) weeks notice. The Tribunal will award the sum of four (4) weeks pay to the applicant, i.e. a sum of $896.80.”

4 The appellant is dissatisfied with the Tribunal's decision and has appealed against it by way of case stated as provided by section 40 of the Ordinance. The questions posed are: “(1) Whether or not an award of payment in lieu of notice is consistent with the findings of fact by the Tribunal. (2) Whether the findings of facts by the Tribunal do not constitute or amount to a finding of misconduct on the part of the applicant and consequently whether the Tribunal disregarded tine fact that this was not the employee's first breach of discipline and did not properly direct themselves on the provision of Section 12(2)(b) of the Employment Ordinance and the proviso made under Section 10(1) of the said Ordinance. (3) Whether an employee who has been summarily dismissed and such dismissal was found to be justified is entitled to be awarded payment in lieu of notice.”

5 In effect and in view of the submissions and arguments of counsel, the questions required to be answered are (1) whether the ordinance has preserved the employer's right at common law to rescind or terminate the employee's contract of service by dismissing the employee summarily (without notice) and for good and sufficient cause (2) whether misconduct and what kind of misconduct on the part of the employee could constitute a repudiation by the employee of his contract of service or a ground for such rescission or summary dismissal (3) whether the Tribunal in fact found that the respondent was guilty of misconduct amounting to her repudiation of her contract, and (4) whether an employee who was been summarily dismissed for good and sufficient cause is entitled to payment in lieu of notice or other compensation for the dismissal.

(1) Preservation of the employer's right

6 At common law, when an...