Supreme Court
Action No. 4 of 1981
2nd June, 1982
Alcantara, J.

Mr. J. C. Gray, for the Plaintiff.
Mr. D. R. Lindo, for the Defendant.

Admiralty Rules of Procedure - Relationship between Rule 207 of the Vice-Admiralty Rules, 1883 and Order 75 of the Rules of the Supreme Court of England - Procedure to be adopted by Supreme Court of Belize where Vice-Admiralty Rules silent on a matter of procedure - Application of Order 75 Rule 21 or Order 75 Rule 31 requiring issue of either summons for directions or summons before case is set down for hearing where Vice-Admiralty Rules are silent on procedure to be adopted.
Oral contract - Plaintiff averring he was employed by Defendant pursuant to an oral contract whereby he was entitled to be paid a salary of $1200 per month, and as general factotum whereby he was promised an unspecified bonus for repairs done to boat - Defendant averring that Plaintiff was employed as both Captain and general factotum of boat at a salary of $1200 per month - Plaintiff claiming salary, bonus, payment in lieu of notice, holiday pay and expenses from Plaintiff.
Labour Ordinance - Summary dismissal - Where employer summarily dismisses employee, he has to prove the dismissal was for good and sufficient cause - Section 46 of the Labour Ordinance - Absence from work without permission of the employer or other reasonable cause constitutes good and sufficient grounds for summary dismissal.

J U D G M E N T

Doubts have been expressed on the working of the rules of procedure in this Action. I think that I should express my own opinion on the inter-relation between the Vice-Admiralty Rules, 1883 and Order 75 of the Rules of the Supreme Court of England, insofar as a case such as the present is concerned.

Rule 207 of the Vice-Admiralty Rules is clear. It reads:

"In all cases not provided for by these Rules the practice of the Admiralty Division of the High Court of Justice of England shall be followed."

The Admiralty Rules of Procedure are now contained in Order 75. So whenever the Vice-Admiralty Rules are silent on a matter you have to refer to Order 75. The Vice-Admiralty Rules are silent on the question of summons for directions. I am, therefore, of the opinion that Order 75 becomes applicable, and before a case is set down for hearing a summons for directions under Order 75 Rule 25 or a summons under Order 75 Rule 31 must issue. In a case such as this it would have been a summons under Rule 31, and the judge would have had the opportunity to order, inter alia, pleadings, if he thought that they were necessary or convenient to ultimately shorten proceedings. In this case there was a request for particulars which was not complied with. I am not unaware of Rule 55 of the Vice-Admiralty Rules which states: "Every action shall be heard without pleadings, unless the judge otherwise order." It is implicit in this Rule that the judge should consider whether to order pleadings before the case comes for hearing. This he does either under Rule 25 or 31 of Order 75.

I now turn to the Action before me. The Plaintiff is claiming the sum of $7,561.89 against the motor vessel "Piper". There are no pleadings in this Action, but in an invoice attached to the Writ of Summons, the breakdown of the sum claimed is as follows:

The Plaintiff's case is that there was a verbal agreement between himself and the owner of the motor vessel "Piper", whereby he became the Captain of the said vessel. The terms of the agreement, according to him, were that he should receive $300 per week (later reduced to $1200 per month) as Captain, plus an additional bonus every three months for additional work done on board the "Piper". This is what he said in examination-in-chief:

"The agreement was that the whole repair of the boat I should be responsible, different from Captain's fees. This was as a manager and director. I worked with my hands in the repair of boat."

No rate of pay or mechanics for the assessment of the work done was agreed to, just the promise to pay additional bonus.

As I see it, the Plaintiff is putting forward in the same claim two different contracts. A contract of service as Captain and a contract for services in respect of the repair and work to be done on board.

There is no dispute between the parties that there was in fact a contract of service, although there is disagreement as to its actual terms.

The Defendant's case is that the Plaintiff was employed not only as Captain but as general factotum for an inclusive salary of $300 per week and that he is not entitled to anything for repairs done to the vessel either under the alleged contract for services or on a quantum meruit, except to be reimbursed for any expenses he might have incurred.

I have seen and heard the Plaintiff in the witness-box and I have come to the conclusion that not much reliance can be placed on his evidence. He exhibited a log-book on which he said he kept a record of all the work he had done on the 'Piper'. I do not doubt that he did work on board the motor vessel, but the record he said he kept is suspect and of little value. I am satisfied that it was not composed at the time or immediately after each item of work was executed.

I find as a fact that the evidence adduced by the Plaintiff is insufficient to prove that there was a contract for services, or a collateral agreement to pay additional bonus. In fact, the evidence of the Plaintiff himself point to the other way as at no time from February, 1980 to July, 1981 did the Plaintiff ever claim from the owner any sum due to him in respect of the 'additional bonus'. Neither is there any mention in the correspondence exhibited of any sum owing to the Plaintiff for work done by him. Apart from this there is the evidence of the Defendant denying such collateral agreement. I therefore come to the conclusion that the Plaintiff was employed as Captain and general caretaker of the motor vessel "Piper" at an inclusive fee of $300 per week. I find that the Plaintiff was employed on a weekly basis for an indeterminate period and that it was part of that contract that he should undertake minor works without further remuneration.

It is common ground that the Plaintiff was paid up to the end of July, 1981. The point in issue is whether he is entitled to anything more. The Plaintiff alleges that he was summarily dismissed and consequently entitled to the salary for the month of August, payment in lieu of notice and holiday pay. The Defendant's case is that the Plaintiff was dismissed summarily for good and sufficient cause and therefore not entitled either to the salary for the month of August, 1981 or to payment in lieu of notice. Insofar as holiday pay is concerned the Defendant says that the Plaintiff not only had a holiday in Miami but that he was given US$300.00 holiday pay. The Plaintiff's entitlement to pay, notice and holiday is based on the Labour Ordinance, No. 15 of 1959.

At this stage the onus of proof shifts from the Plaintiff to the Defendant, insofar as the Defendant must satisfy me, the Court, that he acted in accordance with the Labour Ordinance. The Defendant has to prove that he was justified in dismissing the Plaintiff summarily. If the Defendant so satisfies me then the Plaintiff is not entitled to either a month's pay or payment in lieu of notice. The Defendant must also satisfy me that the Plaintiff has had the holiday he is entitled by virtue of the Ordinance. This is regardless of whether he was entitled to dismiss him summarily or not. The burden on the Defendant is not a heavy one as it is common ground that the Plaintiff left the "Piper" unattended for a whole month, the month of August. That in itself is sufficient ground for summary dismissal. What the Plaintiff says is that he had permission from the Defendant. It is for the Plaintiff to prove this, as the burden of proof shifts once more. The evidence for the Plaintiff is that the permission was as the result of a telephone conversation with the Defendant. The Defendant denies such permission or the telephone conversation. There is a letter dated 27th July, 1981 which was sent to the Plaintiff by the Defendant telling him to have the boat ready for the month of August as the Defendant had made a 5-day booking from 12th August. This evidence corroborated the evidence given by the Defendant that no such permission was granted. I find as a fact that no permission was granted and consequently the Plaintiff was in fundamental breach of his contract of service. The Defendant was quite entitled to dismiss him summarily. Good and sufficient cause for dismissal under paragraph (2) of subsection (2) of section 46 of the Labour Ordinance includes dismissal "for absence from work without permission of the employer or without other reasonable cause."

Under the Labour Ordinance an employee is entitled to 6 days holiday annually. The Plaintiff was employed for a period of 18 months. He would therefore be entitled to 9 days holiday. I am not satisfied that the Defendant has proved to my satisfaction that the period of three weeks that the Plaintiff went to Miami was in fact part of his holiday entitlement under the Labour Ordinance; neither am I satisfied that the sum of US$300.00 alleged to have been paid at the Pickwick Club in lieu of holiday has been proved. The Plaintiff denies having received this amount and I believe him on this point. I therefore find that the Plaintiff is entitled to holiday pay for nine days. The Plaintiff is claiming $876.92. I do not know how this figure is arrived at when a two weeks holiday would only amount to $600.00. I find that the Plaintiff is not entitled to recover more than $450 in respect of this part of the claim.

I find that the Plaintiff is entitled to recover $250.65 in respect of cost of fuel for the motor wagon. There is no evidence to indicate that he used the motor wagon for a purpose which he was not authorised, although the amount does appear to be excessive.

In conclusion I find that the Plaintiff is only entitled to recover a total of $700.65. In the circumstances of this case I do not feel that the Plaintiff should have the costs of the Action but that each party should pay his own costs.

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