Heroe v F.C.S.C. Ltd, 1972-73 ALR S.L. 73

HEROE v. F.C.S.C. LTD., 1972-73 ALR S.L. 73 H.C. trial was a nullity and that the convictions of the appellants and the third accused were bad because the magistrate never had juris­ diction to try the case summarily. In the circumstances, the convictions of the appellants and the third accused are quashed and they are accordingly discharged. 5 It follows therefore that the appellants and the third accused have never been technically in peril and they could now be tried again. But it is a matter for the Solicitor-General to decide whether it would be desirable and in the interest of society to do so. Appeal allowed. 10 HEROE v. F.C.S.C. LIMITED High Court (Agnes Macaulay, J.): March 28th, 1972 (Civil Case No. 19/70) 15 (1] Evidence-burden of proof-negligence-employee prima facie liable for loss of or damage to employer's property entrusted to his care-burden on employee to show no negligence: Dismissal of an employee by his employer is not wrongful if it can be justified by the employee's mis­ conduct, as by his gross negligence in failing to take proper care of his employer's property entrusted to him. In such circumstances the em- 20 ployee is prima facie liable for the loss of or damage to the property and the burden of proving the absence of negligence lies on him (page 77, lines 1-11, lines 29-33; page 78Iines 8-16, lines 31-33, lines 36-38). [2] Employment-duties of employee-duty of care-duty to safeguard employer's property entrusted to his care-prima facie liable for dam- 25 age or loss: See [ 1] above. [ 3] Employment-tennination-summary detennination by employer-em­ ployer's refusal by words or conduct to allow employee to fulfil contract of employment constitutes dismissal: An employer dismisses his employee by words or conduct amounting to a repudiation of the essential obliga- tions placed on him by the contract of employment, as by refusing to 30 allow his employee to fulfil his contract (page 76, lines 35-41). [ 4] Employment-tennination-wrongful dismissal-not wrongful if justified by employee's misconduct: See [1] above. The plaintiff brought an action against the defendants in the High Court for damages for wrongful dismissal, arrears of salary, 35 salary in lieu of notice and repayment of her contribution to a pension scheme. The defendants counterclaimed for the value of money alleged to have been lost by the plaintiff's negligence. The plaintiff worked for the defendants as a cashier. Feeling unwell, she decided to leave the office for a few minutes. She was 40 at that time in charge of cash amounting to about Le2,000 which 73 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS she put into a cash box, which she said she locked. She tried to put the box in the safe but finding the safe difficult to close she left the box under the table. She left no one on guard in the office and did not warn the accountant that she was leaving. The office door was made of wood and had only a wooden latch. When she returned after 10 minutes the money was missing and she claimed that there were signs that the cash box had been forced. The plaintiff was dismissed immediately by the defendants and charged with theft but was found n~t guilty by the Supreme Court (as it then was). She then report~d for duty but the defendants told her that she had been dismissed summarily at the date of the incident and would not re-employ liler. The plaintiff then brought the present proceedings contending that she was entitled to arrears of salary on the ground that she had merely been suspended from work at the date of the incident, not dismissed, and that she was entitled to damages for wrongful dismissal. The defendants alleged that the plaintiff was dismissed at the date of the incident and contended that the dismissal was not wrongful but a valid summary dismissal for negligence. They counterclaimed for the value of the money lost. The plaintiff's claims were dismissed and she was ordered to repay to the defendants the amount of money lost through her negligence. Case referred to: (1) Travers & ~Sons Ltd. v. Cooper, [ 1915] 1 K.B. 73; (1915), 111 L.T. 1088, applied. Mrs Awoonor-Renner for the plaintiff; Gelaga-King for the defendants. AGNES MACAULAY, J.: The plaintiff's claim against the defendants is for damages for wrongful dismissal and for salary payable to the plaintiff for services rendered to the defendants in her capacity as cashier. The plaintiff is also claiming as special damages: (1) arrears of salary from April 1965 to December 13th, 1965 Le850; (2) six months' salary in lieu of notice; (3) contribution to pension scheme Le30, making a total of Le1 ,480 together with general damages. There is also a counterclaim against the plaintiff for negligence and also for an amount of Le2,081.04 alleged to have been lost by the plaintiff through her negligence. According to the plaintiff she was employed by the defendants 74 HEROE v. F.C.S.C. LTD., 1972-73 ALR S.L. 73 H.C. as a clerk in 1938. After working with the defendants' company for some time she was made cashier and according to her she became a senior member of staff with a salary of Le100 per month. Her duties included receiving cash from customers and paying the same into the bank. She said that on April 8th, 1965 she went to 5 work as usual. As she was not feeling quite well some time in the afternoon, she decided to go upstairs to get some tablets. She said that before leaving the office she put the cash which she had collected into a cash box provided by the company. The cash on that day could have been about Le2,000. She said she further 10 locked the cash box and locked the office door and went upstairs for about 10 minutes. She claimed that on her return she discovered that the latch on the door had been broken. She also said the cash box had been prised open and the money in it stolen. A report was made about the incident to the police and she was suspended by 15 the defendants on April 11th, 1965 and later on charged by the police. On December 14th, 1965 she was found not guilty by the Supreme Court and she reported for work, whereupon she was told by the defendants that they were not pleased with the verdict of the court and that her services were no longer required. She 20 alleged that the defendants refused to pay her any money and that the last salary which she received from them was her salary at the end of March 1965. Apart from this she also told the court that she had been contributing to a pension provident fund at the rate of Le5 a month and that she had paid for six months. 25 She denied in her evidence that she was negligent. She said that the office where she worked had a wooden door and a wooden latch. There was also a safe in the office but she said that it was always difficult to open and close and the safest way she could have kept the money was in the cash box. She also told the court 30 that at the end of the day she used to take the cash box up to the accountant for safe·keeping. She finally said that the defendants did not give her any notice but that she felt that she was entitled to six months' salary in lieu of notice, her salary from April1965 to December 1965 and a refund of Le30, the contribution she had 35 made to the provident fund. The plaintiff was later cross-examined by counsel for the defend· ant and several questions were put to her. She again denied being negligent and said that the cash box was placed underneath the table in her office, and that she tried to put it in the safe but 40 found it difficult to close the safe when she had done so. She 75 THE AFRICAN LAW REPORTS further said that she would not have placed it there if she was going away for long. She said also that the cash box had been prised open; she claimed that this was so because she found it open. I must at this stage say that the cash box had been tendered 5 in evidence before this court. She also agreed in cross-examination that she left no-one in the office when she was going away and did not use the intercom system to warn the accountant that she was leaving as it was not working at the time. She also admitted that the office door was a wooden door with a wooden latch. Finally 10 she agreed that defendants lost money on that day and that she had not paid it back. The Personnel Manager of the defendant's company gave evi­ dence before this court on behalf of the defendants. He said that he was in the office on the day of the alleged incident and in fact 15 went down himself to investigate when the plaintiff raised the alarm that the money had been stolen. He said that he examined the cash box and that as far as he knew over Le2 ,000 was missing on that day, and that this amount had not been refunded by the plaintiff or anyone else. He claimed that on the day in question 20 the intercom system was working and that the plaintiff could have got a messenger to leave in the office if she wanted to. Mr. King also said that as Personnel Manager he would have been informed if the plaintiff had been suspended. He said they had direct rules from the Employers' Federation that they should not suspend at 25 all and that on April 8th, 1965 he heard the General Manager giving instructions that the plaintiff should be dismissed but he was not in a position to say whether in fact this was done orally or in writing as he himself did not deal with senior members of staff of which the plaintiff was one. 30 The above is a gist of the evidence as adduced by the plaintiff and the defendants. The plaintiff is first of all claiming damages for wrongful dismissal. The defendants are contending that the plaintiff was not wrongfully dismissed; they say that she was summarily dismissed by them for negligence on April 8th, 1965. 35 What constitutes a dismissal is of course a question of fact: it has been defined as such act or acts on the part of the master as to amount to a repudiation by him of the essential obligations im­ posed on him by the contract. Dismissal may be effected by conduct as well as by words. A master may dismiss his servant if 40 he refuses by words or conduct to allow his servant to fulfil his contract of employment: see Batt's Law of Master & Servant, 76 HEROE v. F.C.S.C. LTD .• 1972-73 ALR S.L. 73 H.C. 5th ed., at 270 (1967). However it cannot be said to be wrongful if such dismissal can be justified. In this case the defendants are contending that the plaintiff was summarily dismissed for negli­ gence. The law allows a master to justify his dismissal of the servant in an action for wrongful dismissal and what amounts to 5 justification for dismissal is always a question of fact and degree. It is the duty of a servant to take proper care of such property of the master as is entrusted to his care: 25 Halsbury 's Laws of England, 3rd ed., at 462. A servant must exercise reasonable care to safeguard his master's property otherwise he will be responsible 10 for its loss: Batt's Law of Master & Servant, 5th ed., at 207 (1967). Several authorities were referred to by both counsel for the plaintiff and for the defendants and the facts of the case were reviewed by both of them. At this stage one must look at the evidence as adduced by both plaintiff and defendants to see 15 whether in fact the dismissal of the plaintiff by the defendants was wrongful in this case. It is admitted on both sides that on the day in question the plaintiff had the sum of about Le2,000 in her possession and custody. It is also admitted on both sides that the money was lost. The plaintiff is contending that the money was 20 stolen from her. She claims she placed it in a cash box which she locked and then left her office for 10 minutes after closing the door of the office, and that·on her return she noticed that the cash box had been prised open and the money stolen. The cash box was tendered in court and in cross-examination she told the court that 25 she only said it was prised open because she found it open. The defendants' first witness said he saw no evidence that the box had been prised open and this court did not see any evidence of this either. One must at this stage see whether the plaintiff had been amiss in her duty and negligent. It has been held that where goods 30 are damaged or lost while in a servant's custody he is prima facie liable and it is for him to satisfy the court that he has not been , guilty of negligence: Travers & Sons Ltd. v. Cooper (1). Of course it is also quite clear that it depends on the circumstances and the gravity of the case. There we have the plaintiff saying that she 35 placed the money in question in the cash box and locked it and placed it underneath the table but in cross-examination she said she tried to put it in the safe but found it difficult to close and in any case she put it there because she knew she was not going away for long. One must at this stage ask why she felt it was necessary 40 to try to put it in the safe? She herself knew that it would be 77 THE AFRICAN LAW REPORTS unsafe to leave the amount of Le2,000 in a cash box which is quite easy to carry around. She told the court that she left it in the cash box because she felt she was not going away for long but yet she admitted that she was away for 10 minutes. She also 5 admitted that she did not get someone to stay by the office when she was leaving it even though she knew that the office only had a wooden door and a wooden latch which she claimed she closed. It is my considered view that, taking everything into consider­ ation, the amount of money involved and the way in which the 10 plaintiff left the office after not making certain that the money was properly locked up or leaving someone in the office, she was grossly negligent and that the defendants were entitled to dismiss her summarily as they did. I think she failed to exercise proper care with regard to the defendants' property on the day in ques- 15 tion. In fact I hold that she was grossly negligent and that the defendants were entitled to dismiss her summarily without notice. I shall now deal with the plaintiff's particulars of special damage. The plaintiff is claiming arrears of salary from April 1965 to December 13th, 1965. The plaintiff is contending that she was 20 suspended from work on April 8th, and not dismissed as alleged. She said that when she reported for duty in December 1965 she was told that the defendants were not satisfied with the decision given in the case against her and as such they were going to dismiss her and that it was only then that she was dismissed. The defendants 25 deny this and I tend to accept their story. They said that they summarily dismissed her on April 8th. I accept this. I see no reason why the defendants should be telling an untruth. They had accepted from the beginning that she had been dismissed sum­ marily; whether this was justified or not did not bother them 30 under the circumstances. I do not feel that the plaintiff is entitled to any salary for the months of April to December. Misconduct justifying instant dismissal is a complete defence to any action for wages falling due after the date of dismissal: Batt's Law of Master & Servant, 5th ed., at 257 (1967). Having held that the defendants 35 were entitled to dismiss the plaintiff summarily, the claim for six months' salary in lieu of notice must also fail. A master has every right to dismiss a servant without notice in certain circumstances, should the servant's conduct warrant this. As regards the third item in the claim, the pension scheme contribution of Le30 a 40 month, no-one not even the plaintiff has been able to tell us what the terms and conditions of repayment of such monies were. This 78 SECTION 12 ADMOR.-GEN. v. WILSON, 1972-73 ALR S.L. 79 H.C. is a separate contract between the two parties and I think there­ fore that the plaintiff can seek her remedies elsewhere as far as this item is concerned. Finally, there is a counterclaim against the plaintiff by the defendants in this action. It is admitted on all sides that the defendants lost the amount in question and this was 5 the reason why the plaintiff was summarily dismissed. The first witness for the defendants told us that the amount has not been refunded either by the plaintiff or anyone else. He said, in answer to certain questions, that the loss of money was determined at the time at Le2,081.04 and that the amount has still not been paid. In 10 view of the conclusion which I have come to that the plaintiff was negligent at the time I hold further still that the defendants are entitled to recover the said sum of Le2,081.04, the amount of money which the plain tiff lost by her negligence. I hold therefore as follows: The plaintiff's claim against the 15 defendants is dismissed. The amount of Le2081.04 is to be paid by the plaintiff to the defendants. Costs are to be taxed in favour of the defendants. Order accordingly. ADMINISTRATOR-GENERAL v. WILSON High Court (During, J.): April 10th, 1972 (Civil Case No. 226/70) [1] Succession-Administrator-General-right to maintain proceedings-must 20 obtain letters of administration before commencing declaratory action: 25 Before the Administrator-General can commence a declaratory action in respect of property devolving upon him at the death of an intestate he must obtain a grant of letters of administration, as required by s.lO of the Administration of Estates Act (cap. 45) (page 81, line 24 - page 82, line 4; page 82, lines 14-32). , The plaintiff sought a declaration that certain property formed 30 part of an intestate's estate, and all consequential orders and directions. At the hearing the plaintiff, the Administrator-General, admitted that he had not applied for, nor been granted, letters of admin- istration in respect of the intestate's estate which he was adminis- 35 tering. The defendant contended that the action was improperly brought before the court since the plaintiff had not obtained letters of administration before commencing his action as he was required to do under s.1 0 of the Administration of Estates Act (cap. 45). He maintained that while an executor derived his title 40 from the will of a testator and could therefore commence an 79