Cuffy v Road Town Wholesale

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Arrindell, J.
• Judgment Date: 11 June 1979
• Neutral Citation: VG 1979 HC 1
• Docket Number: No. 57 of 1977
• Date: 11 June 1979

High Court of Justice

Arrindell, J.(Actg.)

No. 57 of 1977

Cuffy

and

Road Town Wholesale

Appearances:

Mr. E. Hewlett for the plaintiff

Mr. M. Riegels for the defendant

Industrial Law - Contract of Service — Termination — Unfair Dismissal

Industrial Law - Contract of Service — Termination — Notice

Facts: Plaintiff employed by defendant company as a motor mechanic. Defendant acceded to offer by plaintiff that he be given job of doing vehicles. Plaintiff's equipment used. $4.00 to be paid for additional work. Contended by plaintiff that $4.00 was for his workmanship and labour. Defendant contended that this was for rental of equipment. Company later bought its own equipment. Plaintiff informed by letter that arrangements concerning welding were being cancelled. Plaintiff refused to accept letter. Plaintiff dismissed.

Facts: Plaintiff employed by defendant company as a motor mechanic. Defendant acceded to offer by plaintiff that he be given job of doing welding and body repair work on the company's vehicles. Plaintiff's equipment used $4.00 per hour to be paid for additional work. Company later bought its own equipment. Plaintiff informed by letter that arrangements concerning welding were being cancelled, he refused to sign letter. Plaintiff dismissed. Plaintiff contended that dismissal was without just cause and that he was entitled to at least six months notice.

Held: Plaintiff's refusal to accept reduction in income did not justify a dismissal. Arrangement for welding work was ancillary and plaintiff should have been given option of reverting to the original contract before being dismissed.

Held: Plaintiff unfairly dismissed. A reasonable notice would have been two months. Court interpreted 1975 s.c.9 subsection (1) to (3).

Arrindell, J.

1 The overall factual pattern of this case is not in dispute. The plaintiff, who hails from Trinidad, took up employment as a motor mechanic with the defendant, a company carrying on business as wholesalers and retailers of general merchandise in Tortola. The employment commenced on the 20th day of January, 1976 at a basic wage of $85.00 per week. In March 1976 the company acceded to an offer by the plaintiff that he be given the job of doing the welding and body repair work on the company's vehicles. The agreement, a purely verbal one, provided for the plaintiff to carry out this work on vehicles of the company as well as on vehicles of companies affiliated to the defendant company, using his own welding equipment. Previously the defendant, not having welding equipment of its own, gave such work out on contract to other repairers. One of the two main facts in dispute concerns the method of payment for this additional work. The plaintiff claims that his remuneration was at the rate of $4.00 per hour for his workmanship and labour. The defendant strongly disputes this, claiming that payment was by way of rental of the plaintiff's welding equipment, at $4.00 per hour, and that there was no agreement to pay him on the basis of his workmanship and labour as such. Seeing that there is agreement on the $4.00 per hour aspect of the dispute, there would at first sight appear to be only a difference in semantics; but the real significance emerges later when the defendant, having acquired its own welding equipment, brought an end to the welding payments to the plaintiff, reasoning that it could not be expected to continue renting his equipment when it now had its own. The evidence on both sides shows that the welding work was done mostly during the normal working hours. In or around July 1977 the plaintiff's welding equipment got damaged by another employee of the defendant company. The defendant replaced it with new equipment which it purchased for the plaintiff, and subsequently had the damaged equipment repaired. Soon thereafter the plaintiff was told by the managing director of the defendant company Mr. Haycraft that his equipment would no longer be needed. The plaintiff alleges that his reply was: “O.k., if we are still working on the same agreement of $4.00 an hour”, to which Mr. Haycraft replied: “No”, the company would be foolish to have its own equipment and still continue to rent the plaintiff's. In seeking to clarify the position, the plaintiff alleges that he was now told for the first time that he had been paid all along only for the rental of his equipment. The plaintiff said he disagreed with this interpretation of the matter. This difference of opinion was followed by the defendant presenting to the plaintiff a letter dated July 28th, 1977 (Exhibit A.C.3) informing him that the original terms of the employment were now being “extended” and that previous arrangements concerning welding were null and void as of that date. The plaintiff refused to sign this letter in acceptance of the new terms of employment, whereupon next day he was handed a letter of dismissal dated 29th July, the dismissal to be as from 4th August 1977. (Exhibit A.C.4).

2 The plaintiff contends that he was dismissed without just cause, and claims in his writ that he was entitled to at least 6 months notice of termination of his services. The defendant argues that the plaintiff's action constituted misconduct and that his dismissal fell within Sec. C57(1)(e) of the Labour Code Ordinance, 1975of the British Virgin Islands; that his conduct fell within Sec. 58(1)(a) thereof.

3 The second major dispute of fact centered on the plaintiff's claim for repairs done by him to a certain Volkswagen car, not belonging to the defendant but damaged by one of its employees, and repaired by the plaintiff with the sanction of an authorised official of the defendant company. The defendant disclaims liability for these repairs.

4 In respect of the welding work done by the plaintiff, I find as...