Supreme Court
Action No. 126 of 1978
30th May, 1980.
Barrington-Jones, J.

Mr. Dean Barrow for the Plaintiff.
Mr. D. B. Courtenay for the Defendant.

Claim for damages for wrongful termination of contract of employment - Dismissal of Plaintiff after Plaintiff charged with criminal offence arising out of irregular purchase of 300 feet of company's concentric cable by Plaintiff from fellow employee - Plaintiff subsequently acquitted of charge - Termination of contracts for good and sufficient cause - Section 46 of Labour Ordinance 1959 - Section 46(2)(a) - Board had good and sufficient cause to dismiss Plaintiff without notice on grounds of misconduct - Plaintiff's claim for matured benefit under Provident Fund Scheme fails as such benefit only accrued if Plaintiff had continued in Board's employment for 10 years - Plaintiff's claim dismissed - costs awarded to Board.

J U D G M E N T

The Plaintiff took out a Writ on the 11th July, 1978 claiming damages for the wrongful termination of a contract of employment between the Plaintiff and the Defendant.

Briefly what happened here was that the Plaintiff, who was a linesman in the employ of the Belize Electricity Board, was suspended in June, 1977 pending the hearing and determination of a criminal charge in the Magistrates' Court. It subsequent1y transpired that the Plaintiff was acquitted of the charge and it appears that he returned to work on the 1st August, 1977, but was told to leave and to await word from the Defendant Board (hereinafter referred to as "the Board"). It is the Plaintiff's case that on or about the 26th October, 1977 he received a letter from the Board notifying him of his dismissal from the Board's employment with effect the 4th August, l977. The Plaintiff alleges that the dismissal was wrongful and without good cause and that, in any event, it could not take effect retroactively from the 4th August, 1977. It was in these circumstances that the Plaintiff alleged that he had suffered loss and damage.

It is the Board's case that the Plaintiff on an unknown date in late 1976 or in 1977 dishonestly converted to his own use and wrongfully deprived the Board of 300' concentric cable which was the Board's property and that ,as a result, the Plaintiff was discharged from the Board's employ.

The Plaintiff in evidence readily admitted that he had obtained such concentric cable but said it was roughly 100', and admitted that he had installed it at "Diab's Place", saying that he had obtained this wiring from the second man in charge of the Board's meter section store, Mr. Randolph Bradley and had paid Mr. Bradley about $125 in cash for it, but that he did not receive any receipt picking up the cable from Mr. Bradley's house. The Plaintiff said that he told Mr. Topsy (one of the Board's employees) where he had obtained the cable and that as a result he was taken to the Board's offices and was there interviewed by the Board's Personnel Officer Mr. Lizama and says Mr. Bradley was also called in and questioned. The Plaintiff said that after being questioned he went back to work but that three or four days later he received a letter from the Board dated the 18th July, 1977 informing him that with effect the 19th July, 1977 he was placed on suspension at half rate pending the outcome of a prosecution before the Courts. The Plaintiff said that he was later jointly prosecuted with Bradley but that they were both subsequently acquitted. The Plaintiff did not give the date of his Court appearance but this date appears to be the 29th July, 1977. He said that he returned to work the same afternoon and collected his pay; and that he worked the next day, which was a Saturday, but that on his return to work on the following Monday he was informed by the linesman then in charge that he was to go home until he heard from the Board. The Plaintiff then left the Board's premises and went to the offices of the General Workers' Development Union of Belize and did not return to the Board's employ.

It was the Plaintiff's evidence that the next intimation he had was a letter from the Board which was posted to him; this letter is dated the 4th August, 1977, but the Plaintiff says that he only received it in October, 1977. The Plaintiff said that he is positive of this because it was enclosed with a letter concerning his electricity account dated 26th October, 1977.

The Plaintiff says that he was not paid anything further by the Board after the receipt of the letter dated 4th August, 1977 and was only paid at half rate up to the end of July.

In cross - examination the Plaintiff admitted that the concentric cable that he purchased from Bradley was stamped with the mark 'B. E. B.'; and admitted that as far as he knew this type of cable was only kept at the Board's store.

In further cross-examination the Plaintiff agreed with Mr. Courtenay that Bradley was not a man who sold the Board's stores, but said that he did not think it was irregular to approach Bradley for the purchase of the concentric cable. He said that he did not worry about a receipt, and did not think that he might get into trouble if he did not obtain a receipt for the wiring from the Board. The Plaintiff admitted that he sold the wiring to Diab for $200, giving him a receipt for the payment. Two receipts were exhibited by the Plaintiff addressed to Nasser Diab - one dated the 8th January, 1977 for $l50 and another dated 10th January, 1977 for $210.

The Plaintiff, when asked about the interview at the Board's offices, disclosed that when Bradley was asked whether he had sold such concentric cable to the Plaintiff he had denied it. In answer to the proposition that the Plaintiff could not take the Board' s property and use it on a private job, the Plaintiff replied 'yes'. When asked why he had not gone to the Board's retail store for the cable the Plaintiff replied that it was not sold at that outlet. The Plaintiff disclosed that when he went to the Union offices he asked the Union to represent him in the matter of his suspension by the Board; and admitted that between the 1st August, 1977 and the 26th October 1977 he was in frequent touch with the Union; and that officials of the Union had told him that they had received a copy of the Plaintiff's letter of dismissal. He said that the Union had received their copy before he received the original of the letter of dismissal; but admitted that he had had earlier sight of the Union's copy of his letter of dismissal; although maintaining that he did not actually receive the original until on or after the 26th October, 1977. The Plaintiff, at this point in the proceedings, produced the 'account' from the Board which he says was enclosed with his letter of dismissal. In fact it is not an account but a letter from the Financial Comptroller of the Board drawing attention to an outstanding balance of $145.34 and this letter is dated the 26th October, 1977. It was put to the Plaintiff that the letter of dismissal dated the 4th August, 1977 and the letter regarding his account dated the 26th October, 1977 were dispatched and received separately by the Plaintiff to which the Plaintiff replied that they came together in one envelope.

The Plaintiff agreed that he approached Bradley during working hours for the concentric cable and admitted that he had paid for this cable and collected it at Bradley's house. The Plaintiff said that he did not think that it was irregular to pay for and collect the Board's cable at Bradley's house. The Plaintiff denied that he had acted wrongly in the way he had obtained the concentric cable from Bradley; and admitted that he knew that the Board never sells its concentric cable. The Plaintiff said that he knew now that Bradley should never have given him the cable and said that he would not do it again.

So that in brief, was the evidence of the Plaintiff.

The termination of contracts for good and sufficient cause are set out in section 46 of the Labour Ordinance, 1959 and section 46 (2) (a) provides good and sufficient cause for dismissal shall include dismissal when a worker is guilty of misconduct, whether in the course of his duties or not, inconsistent with the fulfillment of the express or implied conditions of his contract of service.

In my view, the Board had good and sufficient cause to dismiss the Plaintiff without notice on the grounds of misconduct and I find that he must have known that he was misconducting himself when he sought to purchase some of the Board's concentric wire marked with the Board's mark from a fellow employee at the Board's premises; such purported purchase being effected and paid for at the home of Bradley. That, taken with the Plaintiff's admission that he knew the Board never sold its concentric cable, leads me to find that his dismissal was lawful and with good cause.

In considering the Plaintiff's allegation that the letter of dismissal dated the 4th August, 1977 was received in the same envelope as the letter regarding his account dated the 26th October, 1977, I take particular note that the former letter is signed by the Admin/Personnel Officer whereas the latter is signed by the Financial Comptroller some two months later. In the last analysis I do not believe the Plaintiff's evidence on this point and find that the letter of dismissal was written to him on 4th August, 1977 and posted thereafter and was probably received a few days later. I further find that the letter regarding his account was written on the 26th October, 1977 and posted thereafter to the Plaintiff.

In any event, I am quite satisfied that the Plaintiff knew of the contents of the letter of dismissal in early August, 1977 when he saw it through the medium of the Union to whom a copy had been sent; moreover there is no requirement in law that a dismissal shall be in writing.

In connection with monies owing to the Plaintiff, the Board admits that a total of $345.72 is due to the Plaintiff, and this should be paid to the Plaintiff as soon as possible after the delivery of this judgment.

I now turn to deal with the Plaintiff's claim for matured benefit under the Provident Fund Scheme. Here I find myself satisfied that the scheme is such that it is limited to employees who complete ten years service, the Plaintiff appears to have served less than that period. Mr. Courtenay cited the case of Ward v Barclay Perkins and Co. Ltd. (1939) 1 All E. R. 287 where it was held that such a stipulation could not be implied in a contract unless, on the evidence, it was shown to have been mutually intended, and necessary to give business efficacy to the document. This could not be said in the present case, and the Plaintiff failed in his Action.

On this authority and having held that the Plaintiff's dismissal was lawful and with good cause I further find that the Plaintiff is not entitled to any matured benefit under the Provident Fund Scheme; such benefit only accruing if the Plaintiff had continued in the Board's employment for ten years.

The Plaintiff's claim must therefore be dismissed. The Board to have costs.

Costs to be taxed by the Register.

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