EMPLOYERS AND THE EPIDEMIC

Dominion, Volume 12, Issue 130, 26 February 1919, Page 6

EMPLOYERS AND THE EPIDEMIC

AN IMPORTANT CASE

LIABILITY TO PAY WAGES

The liability of employers to pay wages for time lost during the epidemic formed the subject of an important case heard before Mr. W. G. Riddel, S.M., at tho Magistrate's Court yesterday. The defendant was James A. Duncan, licensee of the Grand Hotel, who was alleged to havo committed a breach of

the Wellington hotel workers' award in that ho failed to pay wages to a cook named Norman Burke for the period December i to Pwenik-r IG, 11)18, during which tho latter was incapacitated with influenza. It was also stilted that defendant had failed to pay the wages of a barmaid .nnmed Miss M'Donald from November 23 to November- 30, when the premises .were closed owing to the influenza epidemic. TJj.e case was brought on at the instigation of the Inspector of

Awards, Mr. R. T. Bailey, who was represented by Mα , . P. S. K. Macassey, of the Crown Law Office, and a penalty was claimed.

Mr. Macassey stated that Mr. J. J. M'Grath had intended to act for defendant, but was unable to be present owing to indisposition. The facts of tho case had been agreed upon, however, and all that was necessary was to lay before the Court the legal position. Merely a nominal penalty was asked for, as the action was really a test case.

"The question arises in these cases," said Mir. Macassey, "as to the obligation of employers to pay wages to their employees during the period for which places of business were closed by order of the District Health Officer, in view of the epidemic of influenza, and also in the case of absence through sickness of employees. It is submitted that f.ucli compulsory closing of places of 'business does not in itf.nlf in any manner take away or affect the obligation of employers to pay wages. So long as a servant is not gu.ilty of misconduct, he is entitled to be paid his wages until his engagement has been lawfully terminated by the requisite notice. It makes no difference that by reason of some emergency he has been prevented from actually working. The only employers.,therefort, who can refuse to pay wages are those who, on the closing of their premises, took, occasion to terminate the engagement of their servants in the proper manner, having regard to the terms of that engagement and the provisions of any award or industrial agreement relative thereto."

Ma , . Macassey ■ added that - the facts as admitted were as follow:—Be Norman Burlro: (1) The defendant is (i party bound by the Wellington hotel workers' award, dated June- .22, 1917, made under thf- provisions of the Conciliation and Arbitration-Act, 1918. (2) That in the month. of August, 1018, Norman Biu'ko v-fi 1 ; employed as a cook nt the Grand j Hots! Nt a wago of <£l per week, payi abie weekly, and was so employed up to I December i, when he was unable to I work owing to his being laid up with j influenza. He returned to work on DeI cc-r.iber 16. (3) Norman Burke was not i paid any wages during the period of illness. (4). No notice, written or verbal, terminating the services of Burke, was given by on- on behalf of the defendant. Be Mary M'Domild: fl) That she was employed ns a barmaid at the Grand Hotel at a weekly wage of ,£2 as., payable weekly, and was so employed up to November 18, 1918, when tho bar was closed bv order of the District Health Officer. (2) That Mary M'Donald resumed her duties in the bar on November 30. (2) During the period in which tho bar. was closed Mary M'Donald resided at the hotel, but received no wages, for that, period. (1) 'No notice, written or verbal, terminating her services was given by or on behalf of the "aid defendant,

The questions submitted for the opinion of the Court were:—(l) Is the said Norman Burke legally entitled to bo paid his.wß.gc3 during his period of illness and absence i'rnin work? (2) Is the said Mary M'Doiialtl legally entitled to be paid wages during the period when the-bar of the Grand Hotel was closed as aforesaid?

The award, said Mr. Macawsey, provided for 18 hours' notice. Counsel submitted that there had never been any termination of tile engagement. The authorities were very clear on the joint. Lord Halsbiiry line! laid it down that a servant was entitled to his wages during absence through temporary illness, provided that the contract of service remninerl in existence during that time, and that he was.ready and willing to oarry out his duties save for the incapacity produced by his illness. But the illness of the servant might so go to, the root of , the consideration as to justify the master in rescinding the contract. Mr. Macassey concluded by quoting a number of authorities in support of his-case. >

His Worship intimated that he would give his decision later.