Mahazudin v Guyana Sugar Corporation Ltd
| Jurisdiction | Guyana |
| Judge | Luckhoo, J.A.,Gonsalves-Sabola, J.A. |
| Judgment Date | 30 April 1984 |
| Neutral Citation | GY 1984 CA 6 |
| Docket Number | Civil Appeal No. 23 of 1982 |
| Court | Court of Appeal (Guyana) |
| Date | 30 April 1984 |
Court of Appeal
Luckhoo, J.A.; Fung-a-Fatt, J.A.; Gonsalves-Sabola, J. A.
Civil Appeal No. 23 of 1982
Ashton Chase, D. Dial and C. R. Ramson with him, for appellant.
C.L. Luckhoo, S.C., Edward Luckhoo with him, for the respondents.
Damages - Damages awarded for wrongful dismissal — Appeal allowed and judgment of trial judge reversed.
The appellant's claim in the High Court for damages for wrongful dismissal against the respondents was dismissed with costs. The appellant's services over the years as an employee of the respondents and their predecessors commencing in January, 1947, until he was dismissed in September, 1977, have been fully set out in the judgment of the trial judge. He was dismissed from employment for not obeying an order issued to him by the factory manager at Blairmont Estate on 24th August 1977, to go to the homes of factory workers on strike in order to try to get them to resume work. There is no need for me to relate the facts leading up to the time of dismissal, as they have not been challenged, in this appeal lodged against the decision. The appellant seeks a reversal of that judgment and an entering judgment in his favour for damages which flowed from the wrong termination of his contract of employment as well as for moneys which he alleges he earned for overtime services rendered during the subsistence of the employment.
The first question, on the answer to which so much hangs, is: What were the terms and conditions of the contract of employment under which the appellant performed his services? Counsel for appellant contends it was an oral contract, which commenced with employment of the appellant as a shift manager of the factory operations department in June, 1973. That was when the job specification for shift manager contained in the document tendered in evidences as Exhibit ‘B’ was handed to him on the abolishing, as counsel put it “of the post of assistant chemist and the creation of a new post of shift manager”. It was argued that included within the contract were the provisions of Exhibit ‘B’ and those of another document tendered in evidence as Exhibit ‘Q’ headed “Conditions of Service”, which latter document, counsel said, had formed part of the contract of employment of the abolished post of assistant chemist but was accepted and agreed to by the appellant as forming part of his new contract. The respondents disagreed wholly with that approach. They maintained that the terms and conditions set out in the document Exhibit ‘A’ relating to the Post of assistant chemist were those which governed the case; that there was a restructuring in 1973 of the senior staff in the factory operations department and the post of assistant chemist was re-designated shift manager. By reason of nationalisation, Bookers Sugar Estates Limited came under the control of the respondents and by letter dated 27th July, 1976, tendered in evidence as Exhibit ‘U’, all the former employees of Bookers Sugar Estates Limited (including the appellant) were accorded the same conditions of employment as existed at nationalisation in May, 1976. The contents of the various documents adverted to will be set out during the course of the judgment.
Emphasis was laid by counsel for the appellant an three factors in support of his submission that a new contract came into operation in June, 1973. They were (a) that from that point of time the appellant was required to work on shifts, whereas, before, that was not so; (b) he was directly responsible to the assistant factory manager (production), whereas, before, he was directly responsible to the senior chemist; (c) the post of shift manager carried with it wider responsibilities which entailed those of a chemist as well as of an engineer. There was an engineering input into the job, which as assistant chemist the appellant was not required to do, and, thus, the system of working underwent ‘a qualitative change’. Counsel referred us to the evidence of the appellant in re-examination, which showed what were the changes in the nature of the duties having regard to the job specification (Exhibit ‘B’) of shift manager. The submission was that the trial judge's findings were wrong when he held that he did not consider the post of shift manager a new post, that the duties of the former assistant chemist were the same, or substantially the same, as those of shift manager, and that the terms and conditions of employment were those contained in Exhibits ‘A’ and ‘O’. Counsel urged that the trial judge erred in arriving at those findings and that the decision was against the weight of the evidence.
In order to examine the soundness of the submission it would be necessary to have regard to the totality of the evidence.
Exhibit ‘A’ is in these terms:
“BOOKERS SUGAR ESTATES LTD,
22, Church Street,
Georgetown, Guyana.
16th October 1972.
Mr. S. Mahazudin,
Uitvlugt Estate
Dear Mr. Mahazudin,
I am writing to confirm that your appointment as Assistant Chemist is at a salary at the rate of G$509.25 (Five Hundred and Nine 25/100 —- dollars) per month in the scale H(vi) G$5,184-G$ 13,200 per annum with effect from 1st January, 1972.
2. This salary, which is subject to review annually on 1st January, shall accrue from day to day and shall be paid on such day in each calendar month as the company may decide.
3. Your salary shall be inclusive of any fees, commissions, overtime pay, honoraria or other payment to which you may be entitled in any capacity either with your employing company or any other company or organisation within or outside the Booker Group, unless the prior written consent of your employing company has been obtained for you to retain such fees, commissions, overtime pay, honoraria, etc.
4. In addition to your salary, you will be entitled, as from 1st January, 1973, to the benefits set out in the attached Enclosure marked ‘H’, which shall be read and construed as an integral part of this letter, provided however that:
(i) if in the normal course of events you would have been eligible during 1973 for long leave with passages assistance under the terms and conditions obtaining at the date of this letter, you will be permitted to go on such leave, and the leave and leave passages assistance terms set out herein shall take effect only on the date of your resumption of duty later in 1973 or early 1974, the operative date of the other terms and conditions stated herein however, remaining 1st January, 1973;
(ii) if you would otherwise have been eligible during 1974, for long leave with passages assistance under the terms and conditions obtaining at the date of this letter, you must elect to either
(a) transfer immediately on 1.1.73 to the new terms and conditions set out in this letter and its enclosure;
or
(b) take your leave in 1974 under the ‘old’ leave arrangements, and have the new term and conditions of service relating to leave; leave passages assistance; passage assistance for children receiving higher education and intransit travel expenses (as stated in the Enclosure) apply to you only from the date of your resumption of duty in 1974 or early 1975.
5. Both the employing company and yourself have the right to give the other party notice at any time terminating the appointment. Such notice, which shall run from day to day, shall be of three months' duration on either side. The company, however, reserves the right to summarily dismiss you for conduct warranting summary dismissal.
6. For your part, during the tenure of your office –
(a) You will exercise, carry out and comply with a such powers duties and orders consistent with your status and appointment as may from time to time be assigned to or vested in you by the company or its authorised agents, representatives, assignees or successors.
(b) You will faithfully serve the company to the utmost of your power, skill and ability, devoting, all your time, attention and effort to promoting the business interests of the company.
(c) You will not disclose, make available for, or in any way facilitate the disclosure of confidential information or trade secrets relating to or forming part of the company's operations.
(d) You will not without the prior written consent of your employing company, directly or indirectly engage or be concerned or interested in any other business of any kind whatsoever except as a minority shareholder or holder of securities of companies whose shares are freely traded on the market.
Yours sincerely,
(Sgd) H. B. Davis
Personnel Director.
I have read the above letter of appointment dated 16th October 1972, together with its enclosure. I understand and accept the terms and, conditions set out in these documents as representing the full contractual obligations of both the employing company and myself and as superseding all previous agreements. I hereby signify my agreement to be bound by them –
….
(d) with effect from 1st January, 1973, subject to the exclusion of provisos (i) and (ii) (a) of pare. 4 herein.
(Sgd) S. Mahazudin.
Date: 23.10.72.”
There was nothing to indicate what were the detailed responsibilities duties of the post of assistant chemist. By reason of the letter of appointment (Exhibit ‘A’) a fair inference would be that the appellant was under contractual obligation to work during such hours as he might from time to time be called upon to work. He could have been called upon to work for any period, during the day or night, which was assigned to him. The fact that prior to 1973 (when he was put on shift duty) he was not assigned shift duties did not change the contractual nature of his obligation expressed in Exhibit ‘A’. I could find nothing contained in Exhibit ‘A’ to suggest that the appellant could not have been called upon from time to time to perform additional duties, or to exercise additional powers,...
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