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The Judicial Committee of the Privy Council Decisions |
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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Henry v. Mount Gay Distilleries Limited (Barbados) [1999] UKPC 39 (21st July, 1999) URL: http://www.bailii.org/uk/cases/UKPC/1999/39.html Cite as: [1999] UKPC 39 |
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Privy Council Appeal No. 43 of 1998
Evelyn Henry Appellant
v. Mount Gay Distilleries Limited RespondentFROM
THE COURT OF APPEAL OF BARBADOS
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL OF THE Delivered the 21st July 1999 ------------------Present at the hearing:-
Lord Browne-WilkinsonLord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Millett
[Delivered by Lord Browne-Wilkinson] ------------------
1. By letter dated 10th February 1993
the appellant, Mr. Henry, was summarily dismissed by his employers, Mount Gay
Distilleries. He had been employed by them for nearly 40 years. He brought
proceedings for wrongful dismissal. His claim was dismissed by the magistrate,
Miss Marva Clarke. Mr. Henrys appeal against that decision was dismissed by
the Court of Appeal of Barbados on 29th January 1998 by a majority (Moe C.J.
(acting) and Chase J.A., Williams J.A. dissenting). Mr. Henry now appeals to
Her Majesty in Council.
2. The basic facts of the case are not
in issue. Mr. Henry was first employed by the employers in April 1953 as a
delivery man and porter. After some 16 years he sustained an injury which led
him to become a security guard, a position which he held for 26 years. At the
material time he was employed as a night security guard at the employers
premises at Brandons. That site, which was approximately two acres in extent,
had four buildings erected on it. The whole site was surrounded by walls
topped with either barbed wire or broken glass. There were two entrances, one
of which was permanently locked and the other of which was the entrance which
it was the duty of the security guard, in this case Mr. Henry, to guard.
3. It was common ground that it was
standard procedure governing the employment of security guards that if a
security guard discovered a break-in it was his duty immediately to notify
management and the police of the break-in.
4. According to the evidence of Mr.
Henry, he went on duty as security guard on the night of Sunday, 31st January
1993, at 10.00 p.m. On taking over he and the guard being relieved checked the
site and verified that everything was in order. During Mr. Henrys spell of
duty he went on a round at 1.00 a.m. on 1st February 1993. In the course of
that round he discovered that the lock to the door to the visitors centre
had been tampered with. He said that he then pulled the door shut and then
waited nearby with his dog to see if anyone emerged. He said that he waited
until about 4.15 a.m. or even later. No one did emerge and he returned to the
guard hut. He was relieved at 6.50 a.m. by another security guard, Mr. Mascoll.
On taking over Mr. Mascoll checked the premises and found nothing amiss.
However Mr. Henry sent him to look again at the visitors centre. On the
second visit he discovered the injury to the door into the visitors centre.
5. Mr. Mascoll asked Mr. Henry whether
he had called the police or management. Mr. Henry said that he had not. Mr.
Mascoll reminded Mr. Henry of the instructions to inform the police and
management. Mr. Henry responded by saying that management would have to
believe what he told them, the management would be asleep and he didnt wish
to disturb them. Mr. Henry then said it was 7.15 a.m., that he was going home
and that if anyone wanted him Mr. Mascoll would know where to find him. At no
stage before going home did Mr. Henry notify either management or the police.
6. On the next day the operation manager
of the employers interviewed Mr. Henry. He was unable to extract from Mr.
Henry any satisfactory reason why he had not called the police. On 10th
February 1993 the employers gave Mr. Henry notice of summary dismissal
"for reasons of negligence and carelessness".
7. The issue at trial was whether the
behaviour of Mr. Henry on the night in question was such as to warrant summary
dismissal. At the trial, the learned magistrate appears to have had to two
grounds for her decision. First, she held that it was proper to draw the
inference that Mr. Henry had been seriously at fault in allowing the break-in
on 31st January to occur at all. She drew this inference on the basis of the
geographical features of the site viz. that there was only one entrance to the
compound which was the one passing by the security hut: therefore the security
guard (even though not proved to have been asleep) must necessarily in some
way have failed in his duty. This first ground of decision by the learned
magistrate was not referred to by the majority of the Court of Appeal. Their
Lordships, likewise, find it unnecessary to rely on these circumstances but
feel it right to say that in the absence of direct evidence proving the
impossibility of gaining access over the broken glass topped walls their
Lordships would find it impossible to draw inferences of gross negligence by
the security guard in allowing people through the open entrance.
8. The second ground relied upon by the
learned magistrate was also the basis of the decision of the majority of the
Court of Appeal. It also commends itself to their Lordships. It is well
established that summary dismissal is only justifiable where there has been a
breach of one or more duties of the employee and such breach constitutes a
repudiation of the contract of employment as being inconsistent with the
continued employment of the employee. Thus a single act of carelessness or
negligence can provide grounds for summary dismissal if the negligence itself
or the circumstances surrounding it show that there has been a
"deliberate flouting of the essential contractual conditions": Laws
v. London Chronicle Limited [1959] 2 All E.R. 285 at p. 287. The question
whether misconduct is such as to justify summary dismissal is a question of
fact and degree. As such, it is a matter for decision by the trial judge and
not by the appellate courts: Clouston & Co. Limited v. Corry [1906] AC 122. This principle of non-intervention by the appellate courts in such
cases is particularly applicable where, as in the present case, there are
concurrent findings of the relevant facts by both the trial judge and the
majority of the Court of Appeal in the local courts and the appeal is to their
Lordships Board. Quite apart from the usual rule that their Lordships do
not disturb such concurrent findings, in such cases the issue is what
constitutes a reasonable response by an employer. Such matters dependent on
local conditions are far better decided by a local court with knowledge of
local conditions.
9. On that basis their Lordships turn to
consider the learned judges second ground of decision namely that Mr.
Henry, who was well aware of the requirement that guards should at once notify
management and the police of any break-in, in this instance failed to notify
either of them. Moreover his failure to do so was not due to some casual
oversight since Mr. Mascoll at 6.50 a.m. had specifically reminded Mr. Henry
of his duty and Mr. Henry still failed to notify either the police or his
employers. The terms in which he refused or failed to comply with his duty
"they can find me at home if they please," showed an element of
deliberate flouting of his instructions. Moreover a continuing failure by a
night watchman to take the most elementary steps to tell those responsible
what has occurred indicates a basic inability to carry out the duties for
which he was employed. Such in outline were the facts relied upon by the trial
judge and the majority of the Court of Appeal in holding that the conduct of
Mr. Henry in disobeying his standing instructions in contumelious fashion was
sufficient to justify his summary dismissal.
10. It was for the learned magistrate to
decide as a matter of fact and degree whether the breach by Mr. Henry of his
instructions was such as to amount to a repudiation by him of an essential
term of his contract of employment. In their Lordships view there was ample
material to justify the learned magistrate in coming to the decision which she
did on that aspect, especially as the majority of the Court of Appeal have
also agreed with that decision. In the circumstances, it would be quite wrong
for their Lordships to interfere with the decision appealed from and they
decline to do so.
11. Their Lordships will humbly advise
Her Majesty that the appeal should be dismissed with costs.
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