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FORSYTH v. WALKER AND CLARK SPENCE
NLR33V211
1931 Present: Macdonell
C.J. and Garvin S.P.J.
FORSYTH v. WALKER AND CLARK SPENCE.
406-D. C. Galle, 29,137.
Contract of service-Employment for definite period-No provision for termination
on notice-Repudiation before termination-Wrongful dismissal-Cause of action.
Where a contract of employment, entered into for a definite period, contains no
provision for termination on notice and is not subject to any custom as to
notice, the repudiation of the contract by the employer before the expiration of
, the period, without lawful excuse, amounts to wrongful dismissal.
THE
plaintiff sued the defendants to recover Rs. 6,000 as damages sustained by
reason of the discontinuance of his services by the defendants without
reasonable notice.
The plaintiff was employed as an engineer by the defendants on a three years'
engagement in May, 1926, on a salary of Rs. 650 per mensem. On the expiration of
the term, the plaintiff was re-engaged in May, 1929, for a period of four years
on a salary of Rs. 800 per mensem for the first two years and a salary of Rs.
850 per mensem for the next two years. On August 2, 1930, the defendants wrote
to plaintiff that they were unable to employ his services after September 30,
1930. The plaintiff
computed his damages by asking for six months' pay at Rs. 800 per mensem in lieu
of notice. The learned District Judge awarded three months' pay and allowances
as damages to the plaintiff.
N. E. Weerasooria, for plaintiff, appellant.-The main question is as to the
terms of the second contract. The parties are agreed as to the period of service
and the salary and even as to the quantum of house allowances. But no period of
notice is stated. The dismissal was wrongful. The plaintiff was ready and
willing to work but the defendant company was unable to give employment. The
agreement was for four years' service. Six months' salary and house allowance is
reasonable damages (Gringer v. The Eastern Garage, Ltd 1[(1929) 32 N.
L. R. 281.]; 10 Halsbury, p. 339, §
624).
[GARVIN S.P.J.-Can a contract for a definite period without a provision
for notice be terminated by notice ?]
No. The point has not been expressly considered in Gringer v. The Eastern
Garage, Ltd. (supra). In Perera v. Theosophical Society 2[(1930) S.
C. 281, D. C. Colombo, 32,307,S. C. M. 18. 12. 30.] six months' salary was
taken as the basis of damages.
[MACDONELL C.J.-In re Arbitration Rubel Bronze and Metal Co. Ltd. 3[(1918)
1 K. B. 316.] supports the
view that the contract is not terminable by notice.]
Yes. Unless a definite custom can be proved (English and Empire Digest, Vol. 34,
p. 66, § 420, and p. 103, § 767-769; SO Halsbury, pp. 110-113, §§ 215-218;
Bryant v. Flight 4[(1839) M. & W. 114.]; Davis v. Marshall 5[(1861)
4 L. T. 216.]; Smith v. Thompson 6[(1849) 8 C. B. 44.]).
H. V. Perera, for defendants, respondents.-The two contracts must be read
together. The second was a continuation of the first with slight variations. At
the commencement of his employment the plaintiff agreed to the usual conditions
of service appearing in a printed form except in regard to notice. The agreement
as to notice was three months. The same period must be read into the second
contract (Meek v. Port of London Authority 7[(1918) 2 Ch. 96.]). Even if the parties later sought
to impose a different construction, that is immaterial. The question is merely
one of legal interpretation of the documents. The trial Judge finds that the
parties intended to incorporate the terms of the old contract. That would
include the period of notice, viz., three months.
Weerasooria, in reply.-The evidence is clear that the second contract was
distinct from the first. The defendant Company admits in the answer that no
period of notice was agreed on. In the evidence they say one month's notice and
not three months' was enough. Meek v. Port of London Authority (supra) refers in
fact to a custom.
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