Jessie Rowland H. Gittens-Strong v Sierra Leone Brewery Limited (CIV APP 7 of 1979) [1980] SLSC 2 (17 December 1980)

IN THE SUPREME COURT OF SIERRA LEONE

Coram

Hon. Mr. Justice E. Livesey Luke - C.J. Hon Mr. Justice C.A. Harding - J.S.C. Hon Mr. Justice O.B.R Tejan – J.S.C. Hon. Mr. A.V.A Awunor –Ranner - J.S.C. Hon Mr. Justice S. Beccles Davies – J.S.C. Civ. App 7/79 Jessie Rowland H. Gittens –Strong - Appellant And Sierra Leone Brewery Limited - Respondents A.B.N Strong, Esq. for the appellant Borthan Macaulay, Jr. for the respondents JUDGMENT DELIVERED 17th OF THE DECEMBER, 1980 LIVESEY LUKE O.J.: The appellant enter the employment of the respondent company {hereinafter called the company} on 20 th August, 1970 as a Brewer -in-training. The company is brewers of beer and stout. On 1st June, 1971 the appellant was made an assistant Manager. Letter informing him of this decision was dated 8 th June, 1971 an attached to it was “a summary of the terms and conditions and for assistances “Management.” The applicant was required to complete and signs the services agreement. That was the first time the parties signed a formal written contract of services setting out the terms and condi tions governing the appellant’s employment. The appellant was sent to Ghana in 1971 for further training with the Kumasi brewery. He return to Sierra Leone in or about February, 1972 he was sent to Heinekens brewery in Holland for further training, returning to Sierra Leone in or about March, 1973 after the completion of the training. During the later period the company made agreements for the appellant to undergo a management course in Britain. On first July, 1973 the appellant was promoted to the post of brewery/manager, which according to the letter {dated 5th June, 1973} communicating the good news to the appellant was of “full management status.” That letter, apart from informing the appellant of certain improved benefits and fertilities to which he became entitled as “full manager,” did not state what his conditions of service as a full manager were . Nor was the first contract of service setting out his terms and conditions of service as full manager signed then or at all. There was a misunderstanding between the production manager and the appellant in December, 1975 relating to production on December 31th 1975. This resulted in a written query dated 5 th January, 1976 being issued by the production manager Mr. A.O Bart -Williams to the appellant. The appellant promptly sent a written reply to the query, and the matter seemed to have ended there. Apart from that isolated incident in the relationship the appellant and his employers seemed to have been satisfactory and cordial. Indeed by later dated 1th Marc h 1976 the appellant was informed of certain improved benefits and salary to which he became entitled. Everything seemed to have progress normally and satisfactorily until 5 th October, 1976. The appellant reported for duty as 6am. On that day. At about 9am . Was summoned by the acting general manager. Immediately to the general manager’s office where he met the acting general manager Mr. Koopmans and the production manager Mr. Bart-Williams he asked to sit down and then the acting general manager proceeded to pronounce these words: “The company does not require your services any longer.” In a state of shock and disbelieve the appellant retorted “ I beg your pardon?” where upon the acting general manager repeated his previous pronouncement. The appellant asked Mr. Koopmans whether there was any reason for such action. Mr. Koopmans replied that he has received a complaint a week before from the head of security that he heard gone round one money at about 2am and heard found him {the appellant} sleeping whist on duty, that on the previous Friday morning after he {the appellant} had finished work he had found some bottles of beer in the Bright beer seller and that on that same Friday the security officer had found casual workers who in his opinion were intoxicated and Mr. Koopmans added that he thought the foregoing allegation amounted in negligence on his {the appellant’s} part. Mr. Koopmans further referred to the production manager’s query of 5th January, 1976 and concluded by saying that company did not therefore need his services any longer. Mr. Koopmans suggested to the appellant that instead of having his services terminated or being dismissed, he {the appellant} should adopt an easy way out by tendering a letter of resignation. The appellant replied that he was not prepared to do any such thing. Where upon Mr. Koopmans said that the appellant could take it that is services had been terminated and that he could go home and wait a letter to follow. The appellant subsequently received the promised letter. It was dated 5th October, 1976 and in the following terms: - “Dear sir”, I confirm your interview in my office this morning in the presence of the production manager. You appear either unabl e or unwilling to conform to the company requirements of its managers, as evidenced by the series of disciplinary instances, brought to your attention both verbally and in writing by the production, the general manager and myself. I regret therefore that I have no alternative but to terminate your employment with Sierra Leone brewery limited with immediate effect. You will be advised separately of your financial status with the company, including your outstanding car loan, and entitlements under clause 11 {a} of the service agreement. The union African pension fund will also advise you as to your entitlement. Yours faithfully, {Sgd} C.D.M. Koopmans Acting general manager.’’ A few weeks later the appellant received letter dated 28 th October, 1976 and signed by Mr. Koopmans. That letter referred to the letter dated 5th October, 1976 and proceeded to give details of the appellant’s entitlement on termination of his employment including le98.10 as a salary for 1st to 5th October, 1976, le58.33 as rent allowance for October, 1976 and le1105 as two month salary in lieu of notice. The appellant was requested to call upon the Administrative Union Africa pension fund, U.A.C. House, Freetown to collect the amount owed him. The Appellant was not satisfied with the way in which his services with the company had been terminated. And so in December, 1976 he issued a write of summons against the company claiming inter alia damages for wrongful dismissal. In his statement of cla im the appellant inter alia referred to the letter of termination dated 5th October, 1976 and alleged that his dismissal was wrongful. In their Defend the company pleaded inter alia that the appellant’s employment was governed by the service Agreement dated 1st June, 1971 and that in pursuance of that agreement the company terminated the appellant’s employment and paid him his entitlement including two months’ salary in lieu of notice. In the Reply it was inter alia denied that the appellant’s employment was governed by the service Agreement dated 1st June, 1971. On the basis of the pleadings, the issues that went to trial may be summarized as follows:- [i] Was the service Agreement dated 1 st June, 1971 the operative contract governing the employment of the appellant on the date of his dismissal i.e. 5th October, 1976? [ii] If the answer to[i] above is in the negative what were the terms and conditions governing the appellant’s employment on the date of his dismissal? [iii] If the answer to [i] above is in the affirmative, was the appellant’s dismissal in accordanc e with the terms of the said service Agreement? [iv] If the answer to [i] above is in the negative, Was the appellant’s dismissal in accordance with the terms and conditions as stated in [ii] above? [v] If the appellant was wrongfully dismissed was he entitled to General Damages and what was the measure of such damages? [vi] If the appellant was wrongfully dismissed was he entitled to Special Damages? [vii] Was the appellant entitled to salary for the whole of October, 1976 or for only up to the date of his dismissal [i.e. 5th October, 1976]? The trial in the High court was by Williams J. The appellant [Plaintiff] gave evidence on oath in the course of which he tendered in evidence relevant correspondence and other documents including the service Agreement dated 1 st June,1971 [marked EX. ‘’B’’]. He did not call any witness. Only one witness was called on behalf of the company and that was the chairman of the Board of Directors and General Manager of the company in the person of John Jeffrey Allan Clegg. The learned judge de livered his considered judgment on 22 nd December, 1977 dismissing the appellant’s claim. The learned judge held inter alia that the appellant’s services ‘’were terminated and he was not dismissed,’’ that the service Agreement of 1st June, 1971 governed the appellant’s employment on the date of termination, that the appellant’s appointment had been properly and lawfully terminated by the company in accordance with the terms of clause 11[a] of the service Agreement. The appellant appealed to the court of Appeal on two grounds of appeal which were rather vaguely worded. However, the hearing of the appeal proceeded on the basis of those two grounds. The main arguments in the court of Appeal turned on whether there was a distinction between termination and dismissal and the significance of such distinction and whether the appellant had properly dismissed under clause 11 of the service Agreement. The learned trial judge’s decision that the service Agreement of 1st June, 1971 governed the appellant’s employment on the date of termination appears to have been accepted on all sides. Learned counsel for the appellant did not challenge it before the court of Appeal or in this court. Indeed the judgment of the court of Appeal proceeded on the basis that decision was right. However, I think that it is of interest to mention in passing that in the letter dated 8th June 1971 [Ex. ‘’D’’] forwarding the service Agreement [EX. ‘’B’’] to the appellant, the service Agreement is referred to in paragraph two there as ‘’a summary of the terms and conditions of service for Assistant Management……’’ [Emphasis mine]. If the issues had been raised , it would then have been necessary to consider whether those terms and conditions of service governed employees of full management status to which the appellant was appointed on 1st July , 1973 by letter dated 5th June, 1973 [EX. ‘’C’’]. But the issue does not arise in this appeal and therefore it is not necessary to consider it. The court of Appeal [consisting of M.E.A Cole, Navo and Turay JJ.A.] delivered judgment on 25 th May, 1979 allowing the appeal, setting aside the judgment of High court and substituting judgment in favor of the appellant but awarding no damages or costs to the appellant. In a well -reasoned judgment delivered by Navo J.A. and concurred in by Cole and Turay JJ.A. The court held inter alia that the distinction between ‘’termination’’ and dismissal’’ was of little significant, and that the appellant had been summarily dismissed under clause 11 of the service Agreement but that the company had failed to justify the reason for the dismissal. The appellant has appealed to this court complaining against the refusal of the court of appeal to award him General damages, Special damages and costs. The company has filed a notice of crossappeal complaining that the court of appeal erred in law in holding that there was no legal difference between the words ‘’Termination’’ and ‘’Dismissal’’ and in holding that the burden is upon the master to justify the reason for the dismissal of a servant. The important issue raised in this appeal on which many other issues stand or fall is whether the termination of the appellant’s employment was lawful or wrongful. Both the lower courts held that the termination was under clause 11 of the service Agreement dated 1 st June, 1971, but while the High took the contrary view. It is therefore necessary to consider the all-important clause 11 of the Service Agreement and the evidence relating to the termination of appellant’s employment. Clause 11 is in the following terms:- ‘’11. The company may terminated the employment of the Employee- [a] Without assigning any reason therefore by giving to the Employee two months previous notice in notice in writing or without previous notice by crediting him in account in it own books two months’ salary or if the employee shall have not completed two years’ service with the company then by one month’s previous notice in writing or without previous notice by crediting him with one month’s salary; {b} Summarily at any time and without previous notice if the employee shall be guilty of any act omission inconsistent with the due performance of the employee’s obligations under this agreement, failure to obey orders or any other breath of this agreement.’’ ‘’The important question then arises, the company terminate the appellant’s employment in accordance with clause 11{a} or clause 11{b}? The company’s case is that the termina tion is accordance with clause 11{A}. Argument in support of their case proceeds thus: they are obliged to assign any reason for terminating the appellant employment under clause 11 {a}, if they either gave two months’ written notice or without previous notice if they credited is account in their books in two months’ salary, the termination was lawful. And that in the instance case they credited the appellant account in their book with two months’ salary in lieu of notice and therefore his termination was lawful. I shall now consider evidence determine whether this contention is tenable. It will be recalled that at the end of the interview on 5th October, 1976 Mr. Koopmans said to the appellant that he could take it that is services had been terminated and that he could go home and await a letter to follow. The letter that followed Ex. “K” dated 5th October, 1976 which has been set out above. That letter confirmed that the appellant employment was terminated with immediate effect an added “You will be advis ed separately of your financial status with the company………………………………….And your entitlement under clause 11{a} clause of the service agreement. ’’ The crucial questions that are rises is this: did that letter comply with the limb of clause 11 that the company is relying on? Was there any indication in that letter that the company had fulfilled condition for the exercise of that power of termination by crediting him {the appellant} in its books with two months’ salary”? the answers in this questions are in any opinion; clearly” No.” the next significant event in this sad story is that a letter dated 28 th October, 1976 {Ex.” L’’ } the company details appellants entitlement on termination of his employment which included two months’ salary in lieu of notice. That of the intimation in appellant had that is account are been credited with two months’ salary in lieu of notice. Crediting the appellant account with the two months’ salary ove r three weeks after his termination, or compliance with clause 11{a} of the service Agreement? In my opinion the answer must be “No.’’ Let me demonstrate my views by reference a termination with notice and termination with salary in lieu of notice. Take t he case of employer A according to the terms of contract Employment of his employee X has to give X one months’ written notice or one month’s salary in lieu of notice. On the 15th of the month A invitees X to his office and gives him verbal notice of term ination of his service adding that a letter would follow. Five day later X receives a letter from A dated 15 th an informing him that his services were terminated with effect from the 15 th. In my opinion that will not be a valid termination of the employment because it does not comply with the requirement of one month’s previous written notice. Similarly if A had told X that his services were terminated with immediate effect and that he will be hearing from him, and five days later he paid X a month’s salary in lieu of notice, the position should still be the same. In my view such an action on the part of A would not be in compliance with his obligation under the contract of service. If according to the terms of the employment, termination must be by written notice, or salary in lieu of notice such notice or such payment of salary must, in my opinion, be contemporaneous with the act of termination. It seems to me that if an employer dismisses an employee on the 1 st of January and pays him his entitled salary in lieu of notice on the 1 st March, he is in breach of contract of the employment. So what he is paying on 1st of March is not strictly speaking salary in lieu of notice but anticipated damages. Similarly, if an employer is under an obligation to pay salary in lieu of notice into his employee’s account on termination of employment, he is under an obligation to pay it contemporaneously with the termination. I am of the view that if the payment is made not contemporaneously but weeks later there is a breach and the payment ceases to be payment of salary in lieu of notice and becomes anticipated damages paid in mitiga tion of damages. Quite clearly, circumstances contemplated by the first limb of clause 11 (a) are firstly the employer should give two months previous written notice, the notice to the to take effect from the date of its receipt and employee is entitled to continue working during the period of the notice: See Addis V. Gramophone Company Ltd. (1909) A. C. 488 H. L. per Lord Loreburn L. C. at pp.