LAW REPORTS.

Dominion, Volume 4, Issue 1078, 17 March 1911, Page 3

LAW REPORTS.

SUPREME COURT. CHIEF JUSTICE ON BUSINESS METHODS. WRONGFUL DISMISSAL. An interesting civil action, in which John Jlunro claimed .£l2B from Pearson and Company, of Wellington, wine and spirit merchants, in respect of alleged wrongful dismissal, was disposed of yesterday by the Chief Justice (Sir' Robert Stout), The plaintiff, in-his statement of claim, alleged that, on or about. January 13, 1910, he was engaged on a general hiring by defendant as manager of the lattcr's business of wine and spirit merchant, ->t a salary of ,£t a week, with an annual bonus making the remuneration •up to £o 10s. per week. The plaintiff was afterwards' appointed, without increase of salary, to be secretary of the defendant company. On or about January 13, 1911, the defendant, wrongfully, and without just cause or proper notice, dismissed the plaintiff. From January 13," 11)10, to January 13, 1911, defendant paid him salary at the rata of'.£l a week, and defendant also paid. .CIG in lieu of notice, but defendant failed to pay the bonus mentioned, or any part of it. Plaintiff claimed that, in view of the responsibility of his position, he was reasonably entitled to three months' notice. Ho sought judgment for ,£7S as bonus, ana ■£50 as the difference between three months' salary at ,£5 10s. per week, in lieu of notice, and the £16 received, or as damages for wrongful dismissal. In tho statement of defenco it was alleged that the hiring was a monthly, not a general hiring. The alleged agreement to pay £4 a week with a bonus bringing it up to .£5 10s. was denied, as also that plaintiff was- entitled to three months' notice. The defendant said that plaintiff was dismissed on January 6, 1911, owing to his disobedience of; the cumpany's orJers, with regard to breaking open a case of liqueur whisky, and was paid-one month's wages as .i matter of grace. Defendant claimed to be entitled to dismiss plaintiff on one month's notice or payment of one month's salary in lieu of notice. Mr. \V. 11. D. Bell appeared for plaintiff, and Mr. A. W. Blair for the defendant company. Plaintiff's Engagement. John Munro, tho plaintiff, said that :n 1909 he was in charge of a grocery- and wine and' spirit business at Uuntervillc. He met Jlr. Suphir at Wangamii about Christmas of that year, and discussed the matter of engagement and salary. Ho subsequently met Mr. Maguire and Mr. Uilmer with Saphir in 'Wellington. Jlaguiro and Gilmer' put him into possession as manager. He had made it clear to Saphir that, he would not work for less than £i 10*. a week. He thought it was clear from the way in which Gilmer and Maguire spuke in Saphir's presence .that the latter was authorised to settle the question of salary. A Hint for Business Men. His Honour: It is a most unbusinesslike thing for a man to begin work without having his salary fixed-' Mr. Bell: No-more unbusinesslike, your Honour, than- to put a man in without fixing his.salary. His Honour: That is so. I can't understand what business men are coming to, if that is the way they do. things. This case, like another that was before mo lately, could have been settled in two minutes if only the'parties had chosen to sit down and nut what they were doing into writing. Why Did He Loave? Witness further said he did not break open the case of whisky that had been referred to, and was not present when it was done, or in "any way concerned ■'■with it. ... Cross-examined: His employment by Watt at Huutervillo was on a weekly salary of £i. His emplover made a charge against him v and he left of his own accord. Ho was looking for a job when, he met Saphir at Wanganui. His Honour (to witness): Do you suggest that after Mr. ' Gilmer and Mr. Maguire went cut, Mr. Sanhir and vou arranged for the addition of the bonus? Witness: Mr. Saphir and I arranged the whole' thing. I took him to bo tho principal negotiator. Witness, further cross-examined, said that he never spoke about the bonus to either Maguire or Gilmer until Gilmer asked him'to resign. He then mentioned tho agreement, and Gilmer denied that there was any such agreement. Ho did not intend to leave until the year was up, but they made it so unhleasant' for him that he could not stay. George Tulloch, proprietor of the Srunswiek Hotel, and Walter-Keay, journalist, Wellington, also gave evidence. Alfred Vennell, book-keeper for Pearson and Co., said the case of licnieur was opened by the storeman. Witness was not present. He understood that Munro had-something to do .with it, but did not know. Gilmer had promised a bottle of whisky to his collector, Marshall, and tho latter came to witness and told him so, and that it was to bo a bottle of the best. Witness, therefore, instructed the storeman to open the case of liqueur whisky. Non-Suit Refused. Mr. Blair submitted that the plaintiff must be non-suited. His evidence only showed a weekly hiring, and he would therefore not be entitled to thrco months' notice. His Honour: I don't think so. Cases decided in London show that a clerk engaged at a weekly salary was entitled •to three- months notice, and a decided here some years ago, in which I was counsel, showed that a manager of a woollen company, engaged at a weekly salary was entitled to three' months' notice. . His Honour said he could not see that the plaintiff should be non-suited. ."Might Become a Partner," Frederick " Charles Saphir, formerly manager for Bing, Harris, and Co., was the hrst witness for the defence. He said he had retired from business, but casually looked after tho interests of Staples' and; Co., at Wangamii. When plaintiff saw, him in Wanganui no question of salary.was mentioned.. At,the interview between- witness, Munro, Gilmer, and Maguire the two last-named offered plaintiff JC3 10s. a week. He refused to take it, and subsequently in witness's presence at the Commercial Hotel they engaged him at' £i a. week, nothing being said about notice. On a later occasion witness told plaintiff.that he was fortunate to get the job, and might some day become a partner in the firm. •' His Honour: Was thero anything said to him about a bonus? Witness: I told him that if he did well I would endeavour-to'get him a bonus, but I had no authority to get it.' I said it to encourage'him. The Question of Notice. Witness: also.said that it was the cus- \ torn in business here to pay a manager by the month, and. ho would bo entitled to a month's notice. His Honour: I don't think that's good law. However, you say it's a custom of trade. Witness 'said that' plaintiff, being paid by the week, could have left or been dismissed at. a week's notice. To Mr. Bell: Gilmer and Maguire were large shareholders in Staples and Co. and Pearson and Co. Hamilton Gilmer, M.L.C., director and shareholder of the defendant company, said that plaintiff's predecessor, Walmsley, only received a week's notice. Plaintiff was engaged at £i a week, and witness understood that only a month's notice would be required. Nothing about a bonus was said at the time in witness's presence. Information about Whisky. Witness on one occasion found two men opening a case of liqueur whisky, and told them not to do so. It was a very expensive whisky, and such goods were liable to diminish once bulk was broken. Later ho found that it had been opened again, and he spoke to plaintiff about it. Plaintiff acknowledged the responsibility, and said he had been in the wrong and. was sorry. Witness gave plaintiff notice to leave, verbally, and subsequently gave him in. writing one mouth's uo< tice-

Mr.. Blair: What was the value of 'he whisky?—.£s 10s. or .(;l! a case. About 10s. or 12s. a bottle?— Yes. . His Honour: I had no idea that whisky was so expensive. Mr. Blair: This is the kind of whisky, your Honour, that you don't drink with water. You take it by itsell. "Not a Large Business." Allan Maguire, retired contractor, said he had an interest in the defendant company. Jle knew the salary of plaintiff was arranged at .£4 a week, but he did not clearly remember the circumstances of the engagement. He left it lo Haphir. Witness interviewed plaintiff about the whisky and said he had disobeyed orders. Alunro said in the hearing of the clerk: "You charge me with stealing the whisky?" Witness replied that he did not make such a charge. Pearson and Co. employed only a manager, clerk, and a storcmnn. It was not a largo business. Mr. Bell: What is the annual turnover of Pearson and Co.?—" From JE'2O,OOO to £22,000, including the duty." Don't you call that a large business?— "Oh no, I don't think that's a big business. I.have turned over =£50,000 in my own business with only one clerk.'' Anton Nannestad, storeman, said he was instructed by plaintiff to open the case of whisky. He did s 0 and took a bottle to the office. Another bottle was taken out the same day. He received no instructions about breaking bulk until afterwards,-when Mr. Munro told him. The second bottle went to Marshall, the collector. He did not know who got the first. Judgment'for Plaintiff. His Honour, in giving judgment, said ho had first to ask what were the terms of the engagement. The evidence on this point was equally poised, Mnnro's evidence on one sido and Saphir's on the other, and he did not see that he had a right to believe one more than the other. No doubt, Munro was told that if the business prospered ho would get a bonus, but nothing was fixed as to tho amount. His Honour found that the engagement was a general hiring. The mention of tho bonus showed that it was, not a weekly engagement, but that in tho view of the parties it was a hiring for a year or a longer term. On the question of grounds of dismissal, the evidence of two witnesses against one. showed that defendant was dismissed for something he had not done. The defendants had no right to so dismiss him. The question then was: What would be a fair notice under tho circumstances? nis Honour considered that in a case where no agreement was made aud a man was manager aud secretary of a company, three months' notice would not be unfair. As one month's salary in lieu of notice had been paid, judgment would bo for two months' salary at M a week, and costs on tho lowest scale.