Sinclair v Neighbour

(without calling upon Counsel for the Appellant to reply)

In this case the employer might well have been content in all the circumstances to leave the judgment of the learned judge where it was. But he has thought fit to appeal, and this Court has to deal with it and seek to draw the right conclusions from the evidence.

The plaintiff was claiming damages for wrongful dismissal. He had been employed for very little more than a month. He had come on the staff for a short time in the defendant's business and had been made on the 29th March, 1965, the manager of a betting shop - I suppose one of the modern betting shops, one might say - in Warwick Road, Kensington, the defendant being a bookmaker and the owner of that and I understand other shops as well. The plaintiff was given peremptory notice to go - dismissed - on the 27th April following a period of four weeks. The ground of dismissal which was alleged against him in the pleading was misconduct, which in the particulars was developed into dishonest misappropriation of some money. It appears that in that short interval of time the plaintiff, in his capacity as manager, had taken some money out of the till because he wished to place a bet - outside the business. He seems, on the day before he was dismissed, on the 26th April, to have taken £5 out of the till – which he said he was entitled to take for petty cash: the matter is left obscure as to what happened to that – and in addition he took £15 and went outside and used it to back some venture. Apparently that was successful. It is said that he put in an I. O. U.; and he repaid the money the next day.

This case turns on the attitude which the employer could properly take to that conduct. It seems that the plaintiff not infrequently used to telephone to the employer. He said he did it too often and so he did not think he would do it again over this matter. He took the money without asking. He thought that if he had asked, the employer might have lent him the money for some purposes but that if he had told him it was for bettingthe employer would not have agreed. He would not have permitted it. Whether such taking of the money would have resulted in a conviction for larceny or for dishonest misappropriation of the money does not arise, in my view. On these facts a jufy might have taken the view that they would not convict. But whether it is to be described as dishonest mis-conduct or not, I do not think matters. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the plaintiff did as being something which was seriously inconsistent - incompatible - with his duty as the manager in the business in which he was engaged.

To take money out of the till in such circumstances is on the face of it incompatible and inconsistent with his duty. Some people might well say that to take money out of the till when the plaintiff knew that if he had asked if he could do it for the purpose which he might have had to disclose it would have been refused is dishonest conduct. The question for this Court to decide is whether, in the circumstances of this case, it was conduct in its nature, as it has been described, quite irrespective of any point of pleading, which justified the defendant instantly dismissing the plaintiff.

I think that it was. Learned counsel referred to some of the cases. I do not think I need refer to them further. The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way - incompatible - with the employment in which he had been engaged as a manager.

There was an aggravating feature, I think, in that there were in the office two others, including one boy who was only some 18 or 19 years of age who had said something about borrowing money out of the till and it was said that it had been done before. On a new manager coming in, I should have thought that the one thing that was incumbent upon him was to keep the till inviolate. The practice of taking money out of the till...