WALPOLE v. TE AWAMUTU CHEESE FACTORY COMPANY

Waikato Times, Volume XXI, Issue 1725, 26 July 1883, Page 3

WALPOL E v . TE AWAMUTU CHEESE FACTORY COMPANY

His "HoKoOR ! .district Judge Smith delivered/ the, following Judgment iv thus case, oii Tuesday- morning in the District Court, Auckland :— ln this case the/plaintiff seeks to recover £41. 18s damages for an alleged wrongful dismissnl for.his position in the employment of the defendants us working manager of their cheese factory. The defence alleges, in addition to a general denial ( I) 'JMmt the contract had heeii rescinded ; (2) that tho plaintiff was incompetent ; and (3) that he misconducted himself in the performance of his duties as manager. The contract between the parties was entered into on the Bth June, 1882, and by it the plaintiff agreed to sei vc the defendants, and the defendants agreed to employ the plaintiff as working manager, ata salary of £150 for 12 months certain, from the Ist July. 1882, either party being at liberty to determine the service by giving three months' notice in writing on or before the Ist April, 18S3. The plaintiff entered into the employment of the defendants on the Ist of July, 18S2, and on the 15th December the plaintiff gave three months' notice to determine the service. This notice was accepted by the defendants, but subsequently on the 21st of December the plaintiff offered to withdraw his resignation, but was not allowpd to do so. This notice would in due course have expired on the loth March, 1883. In the meantime the plaintiff continued in the service, and on the 6th March, gave fresh notice : "1 hereby give you three calender months' notice of my intention to terminate my service with your company. This notice is in conformity with paragraph three bf my agreement with you bearing date Bth June, 1882." This' notice was also accepted at a, meeting of the directors, and the following resolution passed and communicated to the plantiff ; — "That the manager's notice of resignation of his engagement, in conformity with paragraph tbree of the agreement, be accepted." No reference was made in either to the previous notice of the 15th December. The plaintiff remained in the service after the 35th March, and therefore so far as a defence of a recision of the contract is concerned, I think the subsequent notice and acceptance must be taken to have opeiated us a waiver of the previous notice. The contract, theiefore, must be taken to Imvo been in full force between the parties on the 24th Match, 1883, the day on v. Inch the alleged wiongful dismissal took place. On the 16th March Captain llunciinan, at the request \£ the directors, inspected the factory, an* in consequence of his irpoit being adverse to the plaintiffs management, till plaintiff was, on the 22nd March, required by the directors to vacate his position as manager, and give up possession to them on tho 24th. It is unnecessary to consider in detail the circumstances under "which pobsession was given up by the plaintiff; it is sufficient to notice that on tho 24th the plaintiff did gi\e up possession under protest, and lie now seeks to recover damages for the dismissal which he alleges to be wiongful. It was clear that lie \\ as in possession under the agt cement, and thoiefoie his dismissal being in contmvcntion of the teims of that agiecmcnt tho burden of proof lies on the defendants to jihow that the dis'iii&sal Mas justified. How do they seek to ficc themselves of this burden ? They allege that tho plaintill was incompetent to perform the duties of manager, and that lie misconducted himself in the perfoinwince of these duties. The evidence adduced in support of these too giounds is too closely interwoven to admit of separate treatment. There is no inconvenience arising f i oin this ; the same erroneous act may be evidence either of incompetence it misconduct. Incompetence, implying ignorance of duty, while misconduct implies a dei diction of a known duty. Theie seems to be only one matter disclosed by the evidence in lespect of which ignorance of his duties has been imputed to the plaintiff — viz, in keeping the curingroom damp instead of diy. On this point the cm rent of testimony is in favour of a dry curing-room, and though many of the witnesses, who considered the plaintiffs method of cm ing ertoneous, could not refer to an experience of sufficient duration to quality them as experts, yet the plaintiff failed to give any adequate explanation for his dcpaituic fi'iin what seems to be geneial practice elsuwheie. In this particular, therefore, I must hold that the plaintiff's method was wrong ; and it seems that the inferior external appearance of some of the cheeses, such as those produced at the hearing, is to be attributed to tins error. But though an error it does not seem to have been a fundamental error ; in spite of it cheeses of a marketable quality were produced, and even those cheeses which, in consequence of their external appearance were condemned as unmarketable by Captain Run ci man, were in some instances at least so far in accord with some tastes thnt purchasers sought a further supply. The plaintiffs error, therefore, in this respect -if it was an error, as I think it was —was one which could easily have been rectified, and docb not of itself argue such incompetence as to justify a dismissal without notice. A far moic senous chaige is brought against the plaintiff— that he failed to keep the premiss in a cleanly condition. This charge, if the evidence adduced on behalf of the defendants is to be taken without qualification, is not only proved, but shows either incompetence or misconduct on the plaintiffs part to an almost incredible degree, lint here I cannot help thinking the defendants' witnesses piotest too much. The slime which covered the floor of the curing room, an inch thick, the extremely filthy condition of the whole and every portion of the curing room, surpassing in filth any dairy or factoiy Captain Runciman ever had his foot in, the cneese so honeycombed by flies that they were heard buzzing inside, the mites which covered ths cheese to the deptli of half an mch — these matters are, I will not say the products of brilliant imaginations, but so evidently exaggerated as to oblige me to regard with caution the whole of the evidence. After making such deductions, therefore, as are rendered necessary by the obviously metaphorical nature of the language used, and comparing the statements of the defendants' witnesses with those made by the plaintiffs witnesses ; taking into account thefactthat no serious remonstranceseems to have been made by the directors about the condition of the factory before Captain liwpbimah's visit on the 15th Matjoh, uu^riso .Tiearing in mind that tho compW^^^^Linch of slime is scarcely conu^^^^^^uh'e complaint that the fioQ^^^^^HPig room was swabbed out yU^^^H^of vrajter, I think the only ca^^HHTthjkt call be arrived at is, tlmt th^Kts been no ■ serious dereliction of duty oa. tbe plain tifi's part in respect of clearilirieis. It may be that on one occasion, some curds were left in the cooler for a longer time than was necessary, and that the strainer on another occasion had to be washed before being used, but these isolated instances are not sufficient to justify me in finding that there was habitual neglect of duty. It is clear that the plaintiff was hampered in the eXecntion of his duty by two circumstances— (l) insufficient help, and (2) instructions' during a portion of the time not to refuse inferior milk ; and that both of these circumstances conducted in some measure to the' produeion of' cheese of an inferior quality. It is true that no instructions were given to accept ' tainted or sour milk ; but, on the other ' 'hand,- ii 'did not appear in evidence that • 'any cheese had been made of 1 sour milk, except these which were 'afterwards thrown to the pigs, an actionabout' which, I think, J no reasonable complaint could be made. Taking the evidence. ■ therefore, •as a whole, I think the defendants have, ' failed tpjestablif lifijuch^a' degree o,f /in* justify a, dismissal without notice: meat piait tliertfore go'for 1 the' pMhtitf

for £41 18s, the amount admitted to be recoverable if anything was. At the same time, in justice to the defendants, I think it right to state that the plaintiff is not entirely free from 6lame in the matter, and on that account I shall direct that each party pay thfeir own costs. Judgment for plaiutiff. £41 18s ;no costs.