Labrooy V. The Wharf Lighterage Company

1932 Present: Jayewardene A.J.

LABROOY v. THE WHARF LIGHTERAGE COMPANY.

16-C. R. Colombo, 72,680.

Master and servant-Engagement from month to month-Monthly salary- - Damages in lieu of notice.

Where a person is employed on service from month to month, the salary being paid monthly, he is entitled on the termination of his services, to a month's salary in lieu of notice.

APPEAL from a judgment of the Commissioner of Requests, Colombo.

H. E. Garvin, for defendant, appellant.

N. E. Weerasooriya, for plaintiff, respondent.

June 30, 1932. JAYEWARDENE A.J.-

The defendant, the Wharf Lighterage Co., Ltd., in March, 1931, engaged the services of the plaintiff as assistant manager of the defendant's business on a salary of Rs. 150 a month. On May 30, 1931, the

plaintiff's services were terminated without previous notice and plaintiff has brought this action to recover Rs. 300 as damages, being two months' salary for wrongful dismissal. The defendant pleaded inter alia that the plaintiff could claim only one month's salary in lieu of notice. The learned Commissioner of Requests gave judgment for plaintiff as prayed for with costs, holding that he was entitled to two months' salary as damages, considering the importance of his post. Leave to appeal having been refused on the facts the defendant has appealed on a point pf law which is, that the plaintiff was employed on a monthly salary of Hs: 150 and there are no special circumstances which would entitle the plaintiff to obtain two months' salary as damages in lieu of notice of termination of his employment.

The plaintiff was employed as assistant manager of the defendant company and was authorized to do business at H. M. Customs and on board ships. He does not fall within the category of persons dealt with by the Labour Ordinances. The contract of service is governed by the Roman-Dutch law. Maasdorp says: "The employee will be entitled to a reasonable notice of the termination of the contract, and what is reasonable notice will depend on the circumstances of each particular case. When the service is from month to month, the salary being payable monthly, he will be entitled to a clear month's notice. (3 Maasdorp, p. 249.)

Nathan states the law thus: In the case of hiring of employees, where the hiring is not for menial or domestic service, and is for an indefinite period from month to month it only terminates at the end of one of the monthly periods. (2 Nathan, p. 902, 2nd ed.) There are no important differences between English and Dutch common law on the subject of contracts of service, locatio operarum. (Morice's English and Roman-Dutch Law, p. 172.) On the question of damages Roman, English, and Roman-Dutch law seem to be agreed. Gringer v. Eastern Garage 1[82 N. L. R. 261.]. In English law where it is an express term of the contract that a servant who is dismissed without notice is to be paid his wages for a certain period in lieu of notice or where there is a custom to that effect, the measure of damages for the breach is the amount of such wages, which is to be regarded as liquidated damages. (20 Halsbury 112.) There is a custom in domestic service, that a general hiring may be terminated at any time by a month's notice or payment of a month's wages. If no custom nor stipulation as to notice exists, and if the contract of service is not one which can be regarded as a yearly hiring the service is terminated by a reasonable notice. (20 Halsbury 97.) In Sirisena v. Kurugama Tea Co.2[26 N. L. R. 208.], the plaintiff, a dispenser on an up-country estate, claimed three months' salary in lieu of notice, and the District Judge held that the plaintiff was entitled to two months' notice, as it was by no means easy to secure a post with a salary of Rs. 140 a month. In appeal it was held that unless there are special considerations, a month's notice has been regarded as reasonable under our la

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