Dunk v George Waller & Son Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE WIDGERY,LORD JUSTICE KARMINSKI
Judgment Date28 Apr 1970
Neutral Citation[1970] EWCA Civ J0428-3
Judgment citation (vLex)[1970] EWCA Civ J0428-1

[1970] EWCA Civ J0428-1

In The Supreme Court of Judicature

Court of Appeal

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Widgery

Lord Justice Karminski

Robert John Dunk
and
George Waller & Son Limited

MR. JOHN F.A. ARCHER, instructed by Messrs. Waterhouse & Co., agents for Messrs. Rickerbys (Cheltenham) appeared for the Appellant (Plaintiff).

MR. C.R. JERVIS, instructed by Messrs. Wellington & Clifford (Stroud) appeared for the Respondents (Defendants).

THE MASTER OF THE ROLLS
1

This is an action by an apprentice for breach of an agreement of apprenticeship. The agreement was made on 3rd June, 1966. The apprentice was Mr. Robert John Dunk, who was then 18 years of age. The firm which engaged him as an apprentice was George Waller & Son, Limited, of Phoenix Ironworks at Stroud, in Gloucestershire. Under the apprenticeship agreement it was agreed that the apprentice would for four years, from 7th December, 1964, serve as an apprentice, observe the lawful orders of the employer, and so forth. The employers promised to receive the apprentice into their service and pay him the proper amount and also permit himto enjoy the advantage of being in the works and acquiring a practical knowledge as an engineering technician. There was an express clause enabling the employer to determine the agreement if the apprentice was guilty of misconduct or disobeyed lawful orders. That clause, admittedly, does not apply here, because this apprentice was guilty of no misconduct whatsoever.

2

We have reports as to his progress. In 1965 and 1966 he went through several shops, the fitting shop, the foundry, the drawing office, the machine shop, and so forth. The records show him to be a reasonably obliging lad and behaving quite well. On one occasion he had to be reprimanded for lack of effort, but otherwise he was quite an ordinary apprentice. He also went to the Mid-Gloucestershire Technical College and tried to pass the Ordinary National Certificate. He failed in Part I for the first year, but he passed it in his second year. Then he tried for Part 2, and I am afraid that he did badly. His mathematics were particularly bad. The reports showed that he would not have much chance of passing on a second attempt. So the employers decided that they would terminate the apprenticeship. They had no right to do so. He had not been guilty of misconduct, or anything of that kind. His apprenticeship ought to have continued for the four years. Instead the employers terminated it by a letter of 4th September, 1967, written by the works manager: "We confirm today's conversation when we stated that owing to your unsatisfactory report from the Technical College and your lack of initiative at work, we have no alternative but to terminate your apprenticeship.

3

"You will appreciate that this is not a decision that has been easy to make and a great deal of consultationhas taken place before reaching it. However, we feel that you will agree we have been left with no alternative as you have stated you do not wish to be employed in the factory, this being the only employment open to you with your present qualifications". That letter of termination was a breach of the apprenticeship agreement

4

On getting that letter, Mr. Bunk took legal advice. He was advised that they had no right to terminate his apprenticeship. He asked for an interview. He had an interview with the employers on 26th September. He told them that he had no intention of terminating the agreement. After that interview the employers wrote to him on 27th September: "Further to your interview with the Managing Director, training officer and the undersigned on Tuesday, September 26th, we confirm that you stated you had no intention of terminating your employment with the above Company at the end of this present month.

5

"With this in mind, and your stated intention of not leaving the Company, provisions have been made for you to commence work in the Pitting Shop as from Monday, October 2nd, your hours of work being as at present". That work in the fitting shop, we have been told, was work in the factory which he had previously declined.

6

It was suggested that that letter was an offer by the employers to continue his apprenticeship. I do not think it was. It was badly worded. The Managing Director admitted as much. He said that there is sometimes a lack of communication, in the engineering works. The Judge found that it was not an offer to continue the apprenticeship but only an offer of work in the factory. At any rate it was ambiguous. This young man, Mr. Dunk, did not know what to make of it. On the Friday, the next day after he received it, he went to the employers and asked to see the Managing Director. He got a point-blankrefusal. So that letter remained unexplained. Thereupon this young man did not go on the Monday morning. Instead he went to the local employment Exchange and asked for unemployment pay, which eventually he was awarded. How he brings this action for damages.

7

Mr. Justice Dunn felt that he was entitled to damages, but he tougher that he should only get nominal damages, two guineas. The young man appeals on damages. The employers put in a cross notice. They said they were not in breach, or, at any rate, the young man ought to have accepted the offer of work in the fitting shop. I think this cross-notice fails. It seems to me plain that the first letter of September 1967 was a breach of the apprenticeship agreement. The employers terminated it when they had no right to do so. Their offer on 22nd September was not a clear offer to continue the apprenticeship. He was not bound to accept it. The Judge was quite right in holding that the employers were in breach and liable in damages.

8

Now, as to the damages. An apprenticeship agreement is of a special character. This young man accepted much less wages during the apprenticeship agreement than he would have received if he had gone into the open market as a labourer. At the material time under the apprenticeship agreement he was getting £10 a week. If he had been an unskilled labourer outside in a factory he would have got £20 a week. The difference should have been made up to him by the benefits of apprenticeship, such as the benefit of training, instruction and experience in the various departments of the works. He has been deprived of those benefits for the remaining 65 weeks of the agreement. In order to mitigate the damage, he sought employment elsewhere. He applied for positions as a representative, and so forth, which he did not get. Perhaps he was aimingtoo high. For 57 weeks he was out of work, receiving unemployment pay. For the last eight weeks he got employment in a slipper factory at £20 a week.

9

In my opinion he is entitled to damages for his loss of earnings and of training during the remainder of the term of the apprenticeship agreement and also for the diminution of his future prospects. If he had been allowed satisfactorily to complete his apprenticeship he should have got a better post and better wages thereafter.

10

We were referred to some old cases: Adorns v. Carter (1862), 6 Law Times Reports, at page 130, and Parker v. Cathcart (1866) 17 Irish Common Law Reports, at page 778, which suggest that an apprentice, who has been wrongly dismissed can only sue for his damage up to the date of his action brought. They are not good law today.

11

We were also referred to Addis v. The Gramophone Company, reported in 1909 Appeal Cases, page 488, at page 491, when it was said that an employee cannot get compensation "for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment". I do not think that applies in the case of an apprenticeship. The very object of an apprenticeship agreement is to enable the apprentice to fit himself to get better employment. If his apprenticeship is wrongly determined, so that he does not get the benefit of the training for which he stipulated, then it is a head of damage for which he may recover. If this young man, Mr. Dunk, had continued as an apprentice until the end of his time for the next fifteen months, he would have been entitled to a certificate at the end of the apprenticeship agreement certifying that he had served his full period of apprenticeship. That would have given him a better start so that he would earnmore than others at any rate for the first; year or two.

12

The damage which this young man has suffered can he divided into two parts: first, his loss during the remaining period of his four years' apprenticeship (the short-term loss); second, his loss during the period after the four years had expired (the long-term loss). These losses must be calculated in pounds, shillings and pence. The short-term loss was for the 65 weeks unexpired. Over the first 57 weeks he lost the £10 a week which he would have received as an apprentice. That is £570. But against that he has received £272 by way of unemployment insurance, (During the last eight weeks he got work at £20 a week, so for that period he lost nothing.) That makes about £300 for the short-term loss.

13

He was also put to expense in trying to get other work. He asked a great deal too much in his claim. The Judge reduced it to £20, and I see no reason to alter that figure.

14

Next, the long-term loss. He lost the better wages which he would have had. He would have been able to earn a pound or two more than he would have done if he had never served as an apprentice, at any rate for a year or two. But this betterment might not have lasted very long. He was not very able and might soon have been on the same level as men who had never served an apprenticeship. It would seem appropriate if he were allowed £2 a week for the best part of two years. That would come to £180.

15

So, taking the three items all together, £300 for the short term, £20 expenses...

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