Morrison v Abernethy School Board
| Jurisdiction | Scotland |
| Judgment Date | 03 July 1876 |
| Date | 03 July 1876 |
| Docket Number | No. 150. |
| Court | Court of Session |
Lord Deas, Lord Neaves, Lord Ardmillan, Lord Ormidale, Lord Mure, Lord Gifford.
School—Stat. 35 and 36 Vict. cap. 62 (Education Scotland Act, 1872), sec. 55—Dismissal of Master—Notice.—
A schoolmaster appointed by a school board at a salary of £150, and with a free house and garden, was dismissed by the school board without notice, but received fifteen days” pay, being his salary to the end of the quarter current at the date of his dismissal. Held (diss. Lord Neaves and Lord Ormidale) (1) that although in terms of the Education Act, 1872, the pursuer held office only during the pleasure of the board, he was entitled at common law to reasonable notice before dismissal, or to a money payment in lieu thereof; and (2) that, in the circumstances, three months” notice would have been reasonable, and that the pursuer was entitled to £50 in lieu thereof.
Observations (per Lord Deas) as to the law and practice with regard to notice of dismissal.
Opinion (per Lord Neaves and Lord Gifford), that a school board cannot appoint a master otherwise than ‘during their pleasure.’
On 2d July 1873 the school board of the parish of Abernethy inserted the following advertisement in the ‘Scotsman’ newspaper:—‘Master (head) wanted for the public (late parish) school, Abernethy, Perthshire, to enter upon his duties 1st October next. Minimum salary £150, be sides house and garden. Liberal encouragement will be given to an experienced energetic teacher,’ &c.
William Morrison, M.A., Edinburgh, was one of the applicants for the situation, and on 15th July he received a letter from the chairman of the board containing the following passage:—‘With great pleasure indeed I have to inform you that you have been chosen unanimously head master of our public school.’
Morrison entered on his duties on 1st October of that year, and continued to fill the position of head master of the school till 30th November 1874, when he received a letter from the clerk to the school board in these terms:—‘Abernethy School Board, 30th November 1874.—Sir,—At a meeting of the board held this evening I have been instructed to inform you that you are now relieved of your engagement as head master of the Abernethy Public School. The board have agreed that you be paid the current quarter's salary in full.—Yours,’ &c.
While Morrison had been acting as head master his salary had been paid to him quarterly in instalments of £37,10s. each, and he had also been allowed to occupy a free house and garden of the annual value of from £18 to £20. The quarter current at the time of his dismissal expired on 15th December, and he was then paid the quarter's salary. Morrison demanded a quarter's salary in lieu of a quarter's notice at the termination of his engagement, but this the school board refused to give him. He accordingly, on 28th December 1874, raised this action against the school hoard in the Sheriff Court of Perthshire, in which he concluded that ‘the defenders ought to be decerned to pay to the pursuer the sum of £50 sterling, being loss and damage sustained by the pursuer through the defenders having illegally and unjustifiably dismissed the pursuer on or about the 30th day of November last from his situation as head master of the school at Abernethy, in which situation he was entitled to £150 per annum, together with a free house and garden, with interest thereon at the rate of £5 per centum per annum from the said 30th day of November till payment; the pursuer having, on the 14th day of July 1873, been appointed by the defenders as head master foresaid for the year then ensuing, and having fulfilled his said engagement for a year, he, by tacit relocation, remained engaged as head master foresaid for another year, and entered upon and performed his duties until he was illegally and summarily dismissed as aforesaid without any notice, or a quarter's salary in lieu of notice, for which quarter of a year's salary and emoluments the £50 claimed is an equivalent, with expenses.’
The school board defended the action, and contended that, as under the 15th clause of the 55th section of the Education (Scotland) Act, 1872,* the appointment of teachers of public schools was declared to be ‘during the pleasure of the school board,’ they were entitled to dismiss the pursuer without notice. They denied that the pursuer's engagement had been a yearly one. They averred that the pursuer had been dismissed for fault, but declined to condescend upon the details of his conduct unless called upon by the Court to do so.
The pursuer pleaded;—(1) The contract of service between the pursuer and defenders being constituted by said advertisement, minute of the board, and letter of appointment, and the terms thereof being that the pursuer was to have £150 per annum, and a free house and. garden, the pursuer was engaged at first as a yearly servant. (2) The pursuer having entered upon and completed the contract of service for the first year, and having entered upon his second year without anything having been said about an alteration of its terms, said contract was renewed between the parties in all its entirety by tacit relocation. (3) A school board dismissing a teacher without fault on his part is bound either to give reasonable notice or pay corresponding compensation or damages. (4) The pursuer having been dismissed during the currency of his second year, without any just cause or previous notice, is entitled to damages for breach of said contract renewed as aforesaid.
The Sheriff-substitute (Barclay), on 22d June 1875, pronounced an interlocutor, which contained, inter alia, the following finding:—’ Finds, considering the nature of the office, and the stipulation as to an annual salary, payable quarterly, with the occupancy of a house and garden, and in the absence of any contrary stipulation, the bargain was for a year certain, and which engagement was renewed by tacit relocation for the subsequent year;…. and orders the cause to the motion-roll, that parties may be heard as to the amount of damages to be awarded.’
The defenders appealed to the Sheriff (Adam), who, on 20th August, recalled his Substitute's interlocutor, and made the following findings:—‘Finds (1) that on or about the 14th July 1873 the pursuer was appointed by the defenders, the school board of Abernethy, teacher of the public school of Abernethy; (2) that such appointment was held by him during the pleasure of the school board; (3) that on or about the 30th November 1874 he was dismissed by the board from the said office of teacher of the public school of Abernethy: Finds in law that such dismissal was not illegal: Therefore assoilzies the defenders from the conclusions of the action: Finds them entitled to expenses,’ &c.
The pursuer appealed to the Court of Session.
The case was heard in March by the Second Division, and again in June, with three Judges of the First Division.
Argued for Morrison;—(1) The clause in the statute was meant merely to remove the inconvenience which had been felt from the appointments of parish schoolmasters being ad vitam aut culpam, and was never intended
to legalise summary dismissal without any notice or compensation for want of notice. The code published by the Privy Council provided for six months” notice to pupil teachers,1 so surely some sort of notice was due to teachers themselves. The interpretation clause, more-over, referred to pupil teachers. Formerly the parish schoolmasters had been public officers, and could not be removed without regular proceedings and on proper grounds,2 and the Legislature could never have intended to completely alter and sweep away this altogether. (2) This was a contract of hiring for the year. Wherever the words ‘per annum’ entered a contract of hiring the contract was for a year,3 and this was even a stronger case, because he was to have a heritable subject—a house and garden—as part of his salary.4 (3) There was a common law right to every person to have reasonable notice of his dismissal in order that he might look out for a fresh situation. This had been recognised in many cases by the Court.5 The cases of Pollock's Trustees and Hayman, founded on by the defenders, were not in point, Pollock's Trustees being special, and in Hayman there was four months” notice.6
Argued for the school board;—The proviso in the Education Act as to appointments being held at pleasure must be read into every contract, and the school board could not contract itself out of the Act even if it wished.7 The 55th section had done away with the whole ad vitam aut culpam holding, which had been the real question in dispute in the schoolmasters” cases cited for the pursuer.8 Where there was a stipulation in a contract of service that the servant might be dismissed at will without cause assigned no claim for damages could arise when the servant was dismissed. It would be contrary to the policy of the statute to make notice necessary. The object of the statute was to enable school boards to supply the best education they could to the children. The right existed to dismiss without notice, but it was not to be exercised oppressively. There was, however, here no attempt to make out a case of oppression—it was a case of breach of contract.
At advising,—
Lord Deas.—On 2d July 1873 the school board of Abernethy, acting under the Education Scotland Act, 1872 (35 and 36 Vict. c. 62), advertised for a head
master for what was lately the parish school, and is now the public school of Abernethy. The advertisement bore:—‘The minimum salary to be £150, besides house and garden. Liberal encouragement will be given to an experienced energetic teacher.’The pursuer, Mr Morrison, then in Edinburgh, became a candidate for, and was unanimously elected to, the vacant office. He entered upon his duties on 1st October 1873. He occupied the house and garden assigned to him, which is said to have been worth £18 or...
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