Wilson v Racher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES,LORD JUSTICE CAIRNS,LORD JUSTICE JAMES |
| Judgment Date | 15 February 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0215-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 February 1974 |
[1974] EWCA Civ J0215-1
Lord Justice Edmund Davies
Lord Justice Cairns and
Lord Justice James.
In The Supreme Court of Judicature
Court of Appeal
(Appeal of defendant from Order of His Honour Hudge Harrison Hall, Leicester County Court, dated July 6, 1973.).
MR MICHAEL CONNELL, (instructed by Messrs. Herbert Oppehneimer, Nathan & Vandyke) appeared on behalf of the Appellant (Defendant).
MR R. HENDERSON, (instructed by Messrs. Mossop & Bowser) appeared on behalf of the Respondent (Plaintiff).
We need not trouble you, Mr. Henderson. This is a defendant's appeal from the judgment of His Honour Judge Henderson Hall delivered at Leicester County Court on the 6th July, 1973. He then awarded the plaintiff, Mr. Philip David Wilson, the sum of £421.15 as damages for wrongful dismissal. The defendant is the owner of an estate known as "Tolethorpe Hall", Little Casterton, Stamford, which is some 80 acres in extent, five acres being a garden. The plaintiff was engaged in the capacity of head gardener. From the documents, which by the agreement of the parties have been placed before this court, it is clear that the plaintiff was a man of considerable competence. The pleaded defence contained an allegation that he was incompetent in the discharge of his duties; but that plea was expressly abandoned.
The terms of the plaintiff's engagement were confirmed by a letter of the 18th April, 1972, the relevant part of which was that, "Your employment will commence on 24th April, 1972, and shall continue thereafter unless and until terminated by either of us by notice in writing expiring on 23rd October, 1972, or any anniversary of that date." There are other terms in relation to the giving of notice, but it is sufficient for present purposes to say that it was a firm engagement for the period of six months. Nevertheless, there is no doubt that where an employee is guilty of misconduct in his capacity as employee he may in proper circumstances be dismissed summarily before the expiration of the fixed period of his employment.
The defendant had not seen the plaintiff when he was originally engaged, and it is quite clear that, following their first meeting, there was almost from the outset a completeconflict of personalities. We are to regard this case, in the light of the abandonment of any complaint of incompetence, as one where the plaintiff throughout discharged his duties as head gardener in a proper manner. Nevertheless, something, probably arising from this conflict of personalities, led to the defendant resolving to get rid of the plaintiff certainly by the 23rd October. And it is but a short step from that clear finding by the learned trial judge to the entertainment of a just suspicion that the defendant was prepared to seize upon the first opportunity which presented itself or could be contrived to get rid of the plaintiff even earlier.
On Sunday the 11th June, 1972, the defendant sacked the plaintiff. The plaintiff asserts that this constituted a wrongful dismissal and entitled him to the damages awarded by the learned judge. As to the quantum of those damages, no question arises. The sole issue here is whether the circumstances were such that the defendant acted wrongfully in prematurely terminating the plaintiff's employment.
There is no rule of thumb to determine what misconduct on the part of a servant justifies summary termination of his contract. For the purpose of the present case, the test is whether the plaintiff's conduct was insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant (per Hill, J., in Edwards -v- Levy, (1860 2 F. and F. p. 94, at p. 95). The application of such test will, of course, lead to varying results according to the nature of the employment and all the circumstances of the case. Reported decisions provide useful, but only general guides, each case turning upon its own facts. Many of thedecisions which are customarily cited in these cases date from the last century and may be wholly out of accord with the current social conditions. What would to-day be regarded as almost an attitude of Czar-serf, which is to be found in some of the older cases where a dismissed employee failed to recover damages, would, I venture to think, be decided differently to-day. We have by now come to realise that a contract of service imposes upon the parties a duty of mutual respect.
What happened on Sunday the 11th June emerges from the learned judge's clear and helpful judgment, in which he reviews all the facts and sets out his findings. This court lacks the advantage of seeing and hearing the witnesses which was enjoyed by the trial judge. It needs to be stressed that the appellant now challenges none of his findings of fact. The story began on the preceding Friday afternoon when the plaintiff had been trimming a new yew hedge with an electric cutter. It was a damp afternoon, but the plaintiff carried on, taking shelter when the rain became heavy and then resuming his work when conditions improved. But at about quarter to four the rain was so heavy that the plaintiff could not continue because there was danger of his being electrocuted by the cutter. He then proceeded to oil and clean his tools until his day's work was over. But he did make one mistake. He left a ladder leaning against a young yew hedge, which was an unfortunate thing to do. To that extent, the plaintiff was guilty of some dereliction of duty. But on the Sunday afternoon that was by no means the only topic discussed between the parties. It was after luncheon that the defendant and his wife and three young children were in the garden when the plaintiff passed andgreeted them. The defendant asked where he was going, and the plaintiff replied that he was going to the garden shed to get his boots. Thereafter the defendant showered the plaintiff with questions. He shouted at him, and he was very aggressive. He accused the plaintiff of leaving his work prematurely on the Friday afternoon. The plaintiff explained that he had stopped cutting the hedge only because it would have been dangerous to continue, whereupon the defendant said, "I am not bothered about you, Wilson, that's your lookout". Though there was some reference to the ladder, the defendant did not make clear what his complaint was. But when the defendant accused the plaintiff of shirking his work on the Friday afternoon, there is no doubt that the plaintiff used most regrettable language, and it is part of my unpleasant duty to repeat it so as to make clear what happened. The plaintiff said: "If you remember it was pissing with rain oh Friday. Do you expect me to get fucking wet?" The learned judge, who found that Mrs. Racher and the children did not hear those words, said: "The plaintiff had a clear conscience, and he did reply somewhat robustly when he expressed the state of the weather. I think he felt under a certain amount of grievance at that remark."
According to the learned judge, "The defendant then moved to what he thought was stronger ground", thereby obviously referring to the defendant's determination to get rid of the plaintiff. The judge dealt with an allegation about a line of string having been left in the garden by the plaintiff, and...
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