Supreme Court
Summary Action No. 23 of 1982
29th November, 1982
Moe, CJ.

Mr Lionel Welch for the Plaintiff
Mr Denys Barrow for the Defendants

Unlawful termination of contract of employment - Domestic Worker - Assessment of damages.

J U D G M E N T

The plaintiff was employed by the defendant as a housekeeper on terms and condition contained in an agreement signed by the parties on 25th July, 1982 and which stated that the contract period was from July 28th 1982 - July, 1983. The plaintiff claims that in breach of the contract the defendant terminated her employment on the 28th September, 1982 and seeks damages in the sum of $1,000.00. The defendants say that they did not terminate the plaintiff's employment.

The plaintiff said that on the day 28th September she was helping a student make some refreshment. About 2:00 p. m. she went and asked the second defendant a few questions. The second defendant told her "you are not there to help anyone else, you are here employed by us and what we say you are to do, you are to do". The plaintiff turned away and went to the kitchen. The second defendant was behind her. The second defendant told her "Rita there is work in the house to be done. You can't be here doing things for the students because there is work to be done." She told her "take a broom and sweep the house and I mean now. If you don't get out of the house." The second defendant's account of events up to this point is similar though in different language. She said she approached the plaintiff and asked her what she was doing and she said helping. She told the plaintiff "you are not supposed to help the students." The plaintiff asked "well what is there to do." She replied "you are supposed to sweep the floors, change the linens, clean both bathrooms and if you don't want to do it then you should leave".

Their accounts diverge however as to the conclusion of the incident. The plaintiff added that the defendant said "get out of the house because you are discharged from now." She ask if she was serious and told her she was going to tell her husband the first defendant what went on in his house. The defendant said don't tell her anything because she said get out of the house because she is discharged. She didn't go out of the house immediately. She took the broom and swept the house and left at 3 o'clock. The second defendant's version is that she said again "if you don't want to do the work that I have set for you, you should leave immediately." The plaintiff told her, she did not hire her that her husband did. She didn't have to do what the defendant said because her, husband is the boss. She went into her office and the plaintiff went and swept the house which she had not done earlier. I preferred the evidence of the plaintiff. She was unhesitating in her evidence as compared with the defendant. The evidence of the surrounding circumstances substantiates her account that she was discharged. She was doing something which she ought not to have been doing. She had been told previously not to do it. She hadn't done things she should have done. The second defendant spoke to her about the situation in language and a manner that shocked the plaintiff. When the plaintiff made reference to the first defendant, the second defendant didn't want to hear anything from the plaintiff. She the defendant had said get out of her house. All of this is not an unfamiliar situation in the Caribbean. I found that the second defendant discharged the plaintiff on the 28th September, 1982 about 2:00 p.m.

There is evidence that the plaintiff waited until the first defendant came home and reported to him. The accounts of the plaintiff and first defendant vary. But on either version, that reference did not alter the circumstances that the plaintiff's services had been terminated by the second defendant. Whereas the plaintiff indicated reference ended by first defendant saying since it came this way, you can come for your two days pay tomorrow. The defendant says it ended by his pointing out both women were emotional at the time. He told the plaintiff to go home, come back in the morning so that they could settle the problem between her and the second defendant and that the plaintiff said she doesn't think she is going to come back to work but she will go for now. The problem between plaintiff and second defendant was still there. Plaintiff remained discharged and I so found.

Was the dismissal of the plaintiff on the 28th September, 1982 unlawful, I find that there was on the part of the plaintiff disobedience of lawful orders given by the second defendant. She helped students when she should be doing work set by her employer the second defendant. From the evidence before me I gathered that one reason even if there were others was that unless the first defendant said otherwise, it was all right. There was no suggestion that this disobedience was willful and I do not so find.

There was no evidence of any other conduct justifying summary dismissal. The agreement provided that "if the employer finds employee's performance to be unsatisfactory, the employer has the right to dismiss the employee with only one week's notice in advance." There is evidence that the second defendant found the plaintiff's work unsatisfactory but there was neither a dismissal in exercise of this right nor a dismissal with one week's notice. I consequently find the dismissal of the plaintiff unlawful.

The remaining question is the amount of damages for the breach of contract on the part of the defendants. The damages are to be the amount of wages which the plaintiff would have been paid for the period of notice required to terminate the contract.

The contract was one of hire for a year. Such a contract may be terminated by a month's notice or payment of a month's wages according to custom in UK. See George v. Davies (1911) 2 KB 445 and Lindsay v. Queens Hotel Co. Ltd. (1919) 1 KB 212. I am not aware of any custom in Belize or the Caribbean with regard to domestic hiring for a year of which I can take judicial notice. This is a custom at common law of England which law is recognized in Belize and I take judicial notice of such a custom, by virtue of section 59 of Supreme Court of Judicature Ordinance CAP 5. I hold that the plaintiff is entitled to damages amounting to one month's wages or $260.00 less $2.20 Social Security, $257.80. She is also to have her costs.