S. O. OGUNSANMI (PLAINTIFF)
C. F. FURNITURE (W.A) CO. LIMITED (DEFENDANTS)
(1961) All N.L.R. 892
Division: High Court (West)
Date of Judgment: 20th December, 1961
Case Number: Ikeja Suit No. HK/33/61
Before: Madarikan, J.
The plaintiff, who was previously employed by the defendants as a cabinet maker, brought this action against them claiming the sum of £5,000 as damages for wrongful dismissal. He adduced evidence to the effect that he had undergone six years training in cabinet making in Nigeria and had undertaken an 8 months course in cabinet making and furniture finishing in England. He was engaged by the defendants as a cabinet maker in April 1959 at salary of £40 a month. There was no written contract of service. His monthly salary was increased to £44 the following January. On the 14th December, 1960, his appointment was terminated by a letter addressed to him by the defendants in the following terms:-
"We regret to inform you that due to your inefficiency on such job which are given (sic) you, it has been decided that your services be terminated, and we hereby give you one month's notice of termination as from the above date. We trust that within this period you will obtain other employment."
The plaintiff admitted that he had received his salary up to the 14th January, 1961. He tendered four testimonials to prove his competence as a cabinet maker.
(1) Where a contract of service is silent regarding the notice which is to be given to terminate it, a term must be implied that reasonable notice is to be given.
(2) It is within the province of the Judge, acting as an arbiter of fact in lieu of a jury, to say what length of notice is reasonable in any particular case; and each case must be decided having regard to (a) the nature of the employment: (b) the length of service of the employee with the employer; and (c) other circumstances of the case.
(3) A servant who holds himself out as practising a certain calling impliedly warrants that he is possessed of reasonable skill to perform the work he undertakes within that calling, and it is his duty to exercise such skill.
(4) Where there is a dismissal on notice, it is not necessary for the master to prove that his servant was incompetent even though the notice alleged incompetence as the ground for such dismissal; the only obligation imposed upon the master is to establish that the contract of service was terminated (a) by notice in accordance with the express or implied agreement between the parties; or (b) by notice under a custom; or (c) by reasonable notice.
Incompetence is a ground for summary dismissal but where a master dismisses his servant summarily for lack of skill, the onus is on the master to prove that the servant was incompetent.
Cases referred to:-
Payzu v. Hannaford, (1918) 2 K.B. 348; 87 L.J.K.B. 1017; 119 L.T. 282; 82 J.P. 216; 34 T.L.R. 442; (1918-19) All E.R. Rep. 961.
Harmer v. Cornelius, 28 L.J.C.P. 85; (1858), 5 C.B.N.S. 236; 32 L.T.O.S. 62; 22 J.P. 724; 4 Jur. N.S. 1110; 6 W.R. 749; 141 E.R. 94.
ACTION for Wrongful Dismissal.
Agunbiade, for the Plaintiff.
Bello, for the Defendant.
Madarikan, J.:-The plaintiff's claim against the defendant company is for £5,000 being damages for wrongful dismissal of the plaintiff by the defendant company.
The plaintiff testified that in 1945 he became an apprentice cabinet maker. After undergoing training for about 6 years, he qualified as a cabinet maker in 1951, and established a cabinet workshop. Between August 1958 and April, 1959, he undertook a course in cabinet making and furniture finishing at the High Wycombe College of Further Education, Bucks. The defendant company engaged the plaintiff as a cabinet maker on the 20th day of April, 1959, at a monthly salary of £40. His monthly salary was increased to £44 in January, 1960. By a letter dated the 14th day of December, 1960, and marked exhibit D, the appointment of the plaintiff was terminated by the defendant company. Exhhibit D reads as follows:-
We regret to inform you that due to your inefficiency on such job which are given (sic) you, it has been decided that your services be terminated, and we hereby give you one month's notice for termination as from the above date.
We trust that within this period you will obtain other employment.
The plaintiff admitted receiving his salary up to the 14th day January, 1961. These facts are not in dispute and I find them proved.
The plaintiff tendered four testimonials (exhibits A, B, C and C1) to prove that he is a competent cabinet maker.
There was no written contract between the parties. The contract of service was oral and I am satisfied from the evidence before me that the parties were silent at the time of making the contract as to what notice either party could give to terminate the contract. In Payzu v. Hannaford, (1918) 2 K. B. 348, it was held that where a contract of service is silent regarding the notice which is to be given to terminate it, a term must be implied that reasonable notice should be given. What is reasonable notice is a question of fact to be decided according to the circumstance in each case. It is within the province of the judge acting as an arbiter of fact in lieu of a jury to say what length of notice is reasonable in any given case. I cannot rely solely on decided cases as each case must depend on its own particular facts. Having regard:-
(1) to the nature of the employment of the plaintiff in the present case;
(2) to the length of the plaintiff's service with the defendant company;
(3) to the fact that the plaintiff was paid a monthly salary; and
(4) to the other circumstances of this case.
I hold that a month's notice of termination of the contract of service was reasonable.
This leads me to a more difficult point which falls for consideration in this case. The notice of termination (exhibit D) alleges that the plaintiff was inefficient. A servant who holds himself out as practising a certain employment impliedly warrants that he is possessed of reasonable skill to perform the work he undertakes and it is his duty to exercise such skill. In Harmer v. Cornelius, 28 L.J.C.P. 85, a scene painter was dismissed for incompetence and Willes J., said:-
The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill. An express promise or express representation in the particular case is not necessary.
It may be that, if there is no general and no particular representation of ability and skill, the workman undertakes no responsibility. If a gentleman, for example, should employ a man that is known never to have done anything but sweep a crossing, to clean or mend his watch, the employer probably would be held to have incurred all risks himself.
Incompetence is obviously a ground for summary dismissal. Where a master has dismissed his servant summarily
for lack of skill, the onus is on the master to prove to the satisfaction of the judge that his servant was incompetent. I must stress that this only applies to summary dismissal. In my view, where (as in the case before me) there was dismissal on notice, it is not necessary for the master to prove that his servant was incompetent even though it was alleged in the notice that the servant was incompetent. The only legal obligation on a master is to establish that the contract of service was determined by notice:-
(1) in accordance with express or implied agreement between the parties; or
(2) under a custom; or
(3) reasonable notice.
I am of the opinion that exhibit D which was sent by the defendant company to the plaintiff was a reasonable notice of termination of the contract of service, and that the onus is not on the defendant company to prove lack of skill on the part of the plaintiff.
In my Judgment, the contract of service between the parties was properly terminated according to law. The plaintiff has failed to prove that he was wrongfully dismissed. I therefore dismiss his claim with 25 guineas costs.