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ENTERPRISE J. TONAZZI
V.
BRUNO BRUNETTI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT BATHURST, THE GAMBIA
19TH DAY OF DECEMBER, 1953
2PLR/1953/88 (WACA)
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OTHER CITATION(S)
2PLR/1953/88 (WACA)
(1953) XIV WACA PP. 403-405
LEX (1953) – XIV WACA 403-405
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
MILES, J.
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BETWEEN:
ENTERPRISE J. TONAZZI – Appellant
AND
BRUNO BRUNETTI – Respondent
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ORIGINATING COURT(S)
Appeal from a judgment of the Supreme Court of the Gambia by the defendant
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REPRESENTATION
P. S. N’Jie — for the Appellant
S. J. Forster — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
EMPLOYMENT AND LABOUR LAW:- Contract of employment — Master and Servant — Summary dismissal for neglect and insubordination — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases — Findings of fact — Inadequate consideration of the evidence — Legal effect
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CASE SUMMARY
The plaintiff, a carpenter, obtained judgment for damages for wrongful dismissal. The trial Judge found that the real dispute was the unjustified failure of the defendants to pay him moneys due as payment for overtime, and that the ill-feeling had become worse after an allegation by the plaintiff that he had been accused of sabotaging machines and his suggestion that they should be tested, which not being done, he stopped work on them, with the upshot that he was wrongfully dismissed.
The evidence showed that the defendants, his employers, had asked the plaintiff to keep an account of his overtime work, which he submitted late, after receiving an advance; and it was conceded by his counsel in the appeal that the dispute was not over money, but argued for him that it was because he had been accused of sabotage. This reason rested on the plaintiff’s allegation alone. There were letters of his, besides parts of his evidence, showing that he had put forward a demand for extra payment for working on the machines and, when refused, stopped working on them, though this was part of his duties; that he was warned by his employers and thereafter dismissed on account of his refusal.
The defendants complained on appeal against the judgment for the plaintiff and also against the dismissal of their counterclaim for damages as arising from his refusal to work from a certain date (but they had failed to establish that they were entitled to damages as so arising).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal in part) that:
(1) The judgment was not based upon the whole evidence, nor were all the facts and circumstances taken into consideration; therefore the Court of Appeal had the duty to arrive at its own conclusion on the evidence.
(2) The evidence showed that the plaintiff had been neglectful and insubordinate in refusing to work on the machines, and he was therefore rightly dismissed summarily.
(3) The defendants not having established that they were entitled to any damages as arising from the plaintiff’s refusal to work from a certain date, their counterclaim was rightly dismissed.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
This is an appeal from a judgment of the Supreme Court of the Gambia awarding the plaintiff-respondent by way of damages for wrongful dismissal, £67 10s. 0d. as arrears of pay, £61 as wages and cost of board and lodging for one month in lieu of one month’s notice terminating his contract, £84 as leave pay, and directing the defendant-appellant to bear the cost of the plaintiff-respondent’s repatriation to Italy.
The plaintiff, a carpenter, was employed to work an eight hour day at £30 per month. By agreement he was also to be paid 4/- per hour for overtime and £1 a day for work on Sunday. This overtime pay was described at the trial as “the Supplement “.
The learned trial Judge found that the real dispute between the parties was that the plaintiff demanded his unpaid supplement for January, March, April and May, 1953 (there was none in February), amounting to £32, that the defendants did not pay it and that the defendants’ failure to pay, for the reason given by them, was untenable. The learned Judge went on to find that ill-feeling and an impasse arose out of the non-payment of the supplement, that the plaintiff then alleged to the Labour Officer that he had been accused by the defendants of sabotaging certain machines in the workshop which the plaintiff had declined to continue to work but which he however offered to resume work on if the machines were first tested in the presence of a witness to demonstrate that they had not been tampered with by the plaintiff, and that as his suggestion was not carried out, the plaintiff did not work further on the machines. The upshot of all this, the learned Judge found, was that the defendants dismissed the plaintiff at the end of June, 1953, that they were not justified in doing so and that the plaintiff was entitled to damages for wrongful dismissal.
This part of the appeal has been argued on two grounds which were taken together, namely that the learned Judge misdirected himself in holding that the defendants were not justified in dismissing the plaintiff, and that the judgment is against the weight of the evidence.
I am unable to subscribe to the view of the learned Judge that the real dispute entitling the plaintiff to cease work until it was paid and resulting in his wrongful dismissal, was the supplement. The plaintiff himself says that the defendants asked him to keep the record of the extra work. The defendants say they asked the plaintiff to keep the record to avoid dispute and that they did not pay the overtime because the plaintiff did not submit the account of his overtime. Far from being untenable, I regard this as a reasonable attitude by the defendants. Considering how difficult it was, as the evidence shows, for the defendants to engage another Italian foreman, it is highly improbable that, if the particulars had at the time been available to the defendants, they would have withheld payment and thereby created a disgruntled employee and the consequent dislocation of the workshop, a situation which they would naturally be anxious to avoid. It is not irrelevant that the plaintiff himself supplied the particulars by his letter (exhibit C) of the 23rd June, 1953. The plaintiff’s evidence, which is disconnected, bears out that he did not in fact stop work on account of the supplement. He said, “On May 24th I asked defendants for money to send to my family. Defendant wanted to hit me. He gave me an advance … Labour Officer asked me to return to operating the machine and then he would negotiate. I had at that time received the advance.” Later the following occurs in his evidence:-
To Court. Q. “I am not clear why you stopped operating it. Is it because you asked for an advance and it was not readily forthcoming?”
A. “I asked for the advance and got it, and defendant told my fellow workmen that I had damaged the machine and so I stopped.”
The real dispute therefore was not over money and Mr. Forster for the plaintiff-respondent has conceded that the plaintiff did not stop work on that account, but he argues that it was because the plaintiff was accused of sabotage. In my view this also was not the real cause. It rests upon the bare allegation of the plaintiff and has been used, I think, to bolster up the real discontent of the plaintiff, which will now be dealt with.
Apart from the oral evidence a number of letters written by the parties are before the court. It is clear from the plaintiff’s testimony and his letters that after working some twenty-one months on the machines he adopted a new attitude. On the 8th June; 1953, he maintained that he had been engaged to work only at the carpenters’ bench. He demanded additional remuneration for working the machines as from the 31st August, 1951, and when this demand was not met by the defendants he ceased work on the machines on June 12th.
The learned trial Judge held rightly that operating the machines was within the scope of the plaintiff’s duty. Exhibit K, a letter addressed by the defendants to the Colonial Secretary applying for the plaintiff’s entry permit to the Gambia and which was admitted in evidence without objection states that the plaintiff would be engaged as “a European Technical Foreman of Works to supervise the workshop and for the move of the machines”. It is clear that the plaintiff would not be entitled to extra remuneration for operating the machines during the eight hour day for which he was paid a monthly salary. For overtime he received the supplement. The plaintiff’s letters, however, show that he was insisting upon extra payment and he no doubt considered his position strong enough to exact it.
In his letter of 12th June to the Labour Officer the plaintiff wrote, “The disagreement came between us last week the 8th instant when I asked him the compensation for the machinery work and the general supervision of the workshop since September, 1951, when my father resigned”. In his letter of the 23rd June to the defendants the plaintiff again makes it clear that his resumption of work on the machines is dependent upon the consideration (meaning remuneration) he would be granted for working them. Finally, in his evidence the plaintiff said he was given notice to stop work because he had been asked to take the machinery work. This refers to the defendants’ notice of 29th June, 1953, dismissing the plaintiff as from 30th June after due warning contained in a letter of 19th June, for refusal to operate the machines in the carpenters’ shop. I have dealt at some length with the evidence because this Court always pays great respect to the findings of fact of a trial Judge. But whereas in this case the judgment appealed from is not based upon the whole evidence and all the facts and circumstances of the case have not been taken into consideration by the learned trial Judge, it is the duty of this Court to arrive at its own conclusion on the evidence.
Having reviewed the evidence I have come to the conclusion that the plaintiff was neglectful and insubordinate. He had adopted an attitude inconsistent with the relationship between a workman and his employer and he was rightly dismissed summarily. It follows that he is not entitled to the damages awarded and I would therefore allow the appeal as to the claim and set aside the judgment of the Court below. The defendants also appeal as to the dismissal of their counterclaim and submit that it should have been allowed in whole or in part by the Court. It is sufficient to say that the defendants failed to establish that they were entitled to any damages as arising from the plaintiff’s refusal to work as from the 12th June, 1953. The counterclaim was therefore in the result rightly dismissed.
In the counterclaim the defendants admit a certain sum as due to the plaintiff for wages and there is evidence that a cheque for money due to him was tendered to the plaintiff and refused. The dismissal of the plaintiff’s claim in damages will not affect his right to receive whatever may be due to him for wages and overtime earned.
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FOSTER-SUTTON, P.
I concur.
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MILES, J.
I concur.
Appeal allowed in part: the Judgment on the plaintiff’s claim set aside.
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