BARBADOS.

[Unreported]
IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Magisterial Appeal No.9 of2003

BETWEEN:

M’JAYSENTERPRISES LIMITED

(Appellant)

AND

PATRICKWEEKES

(Respondent)

Before: The Hon. Sir David Simmons K.A., B.C.H., Chief Justice, the Hon. Colin A. Williams, Justiceof Appeal, and the Hon. Peter D.H.
Williams, Justice of Appeal

2004: October 28; November 11

Mr. Deighton Rawlins for theAppellant

Mr. Michael Beckles for theRespondent

DECISION
Introduction

SIMMONS CJ: This is an appeal against the decision of the Magistrate for District ‘B’Oistins on 24 September 2003 in which the respondent (Mr.
Weekes) was awarded$1 900 as damages for wrongful dismissal by the appellant (the company). Mr.Weekes was dismissed following the
disappearance of $990 from the company’soffice. The question for adjudication is whether an employer may suspendan employee without pay
in the absence of an express term in the contractproviding for such suspension.

The Facts

[2] The company’s business was renting vehicles. Mr. Weekes was employed from3 January 2000 as a driver to deliver vehicles to customers.
On 9 July 2002,Mr. Jerome Lewis (Mr. Lewis), who was responsible for tallying the day’s business,balancing money and banking it or
securing it, was in the company’soffice. There were two desks in the office. Mr. Lewis was sitting ‘atthe front desk’. Behind him was the
other desk (the back desk).

[3] While Mr. Lewis was sitting at the front desk, the telephone rang. He answeredit and placed the day’s takings, $990, on the back desk.
Mr.Weekes came into the office, passed Mr. Lewis and went in the direction of theback desk. After taking the telephone call Mr. Lewis
instructed Mr.Weekes to take a vehicle for rental to a customer at the BougainvilleaHotel. Mr. Weekes left to go and do the rental.
According to Mr.Lewis’ evidence, he then left his desk and went to the back desk ‘to take themoney and lock it away in a drawer but there
wasn’t any money there’.

[4] When Mr. Weekes returned from the Bouganvillea Hotel, Mr. Lewis asked him if hehad seen the money that had been placed on the desk but
Mr. Weekes said that hehad not seen it. Mr. Lewis told the Magistrate that he told Mr. Weekesthat he (Mr. Weekes) was the only person
who had been in the office and heasked him to return the money which he had taken. Mr. Weekes insistedthat he did not have the money.
Mr. Lewis did not see Mr. Weekes take themoney. In fact, no one saw Mr. Weekes take the money. Such evidenceas there was linking
him to the disappearance of the money was entirelycircumstantial. Mr. Lewis telephoned the managing director of the companyMr.
Maurice Alleyne (Mr. Alleyne) and reported to him that the money wasmissing.

[5] The next morning Mr. Alleyne confronted Mr. Weekes about the missing money andtold him that he had concluded thathe, Mr.Weekes, had
removed the money from the office. He then told Mr. Weekes that hewould give him until the Friday of that week (12 July 2002) to return
themoney. He allowed Mr. Weekes to continue working. The money was notreturned on Friday. Mr. Weekes was off duty on the Saturday
but he reported forwork on Sunday, 14th July 2002. Mr. Alleyne again asked him aboutthe money but he maintained his innocence. Mr.
Alleyne thereupon suspended Mr.Weekes for 2 weeks without pay.

[6] On Monday, 15 July 2002 Mr. Weekes went to the Labour Department to inquireabout his rights. An officer of the Department telephoned Mr.
Alleyne todiscuss the matter. Mr. Alleyne’s evidence was that he told the officer that‘he (Mr. Weekes) could consider himself dismissed
and whatever monies I had forhim I would send through the mail by cheque’. He did in fact post acheque for $854 to Mr. Weekes. That
sum represented one week’s pay inlieu of notice and vacation pay to 12 July 2002.

Magistrate’sFinding and Reasons

[7] The Magistrate, Ms. Marva Clarke, accepted the evidence of Mr. Lewis and foundthat Mr. Weekes was the only person who had entered the
office while the moneywas on the back desk. She disbelieved Mr. Weekes. She held that, ona balance of probabilities, the company
would have been justified in dismissingMr. Weekes ‘based on a reasonable belief that he had taken the funds from the office’. However,
the Magistrate considered two other points. First, whether thecompany had power to suspend Mr. Weekes without pay and, second, the
real causefor the dismissal.

[8 ] After considering the case of Boyce v. Brewster (1996) 52 WIR 73and a passage in Hepple & O’Higgins’ ‘Employment Law’, Fourth
Edition,p.217, the Magistrate held that Mr. Weekes ‘was only dismissed after he went tothe Labour Department and not for the theft of the
money’. She also foundthat there was no evidence before the Court that the company had power tosuspend. The Magistrate thought that
the law was settled that an employermust have power to suspend an employee and that power must be incorporated intothe employee’s
contract. She said: ‘There must be an expressed or impliedterm in the contract of employment permitting such method of discipline’.

TheArguments on Appeal

[9] Mr. Rawlins, for the company, argued that a term giving the company a right tosuspend without pay should be implied in the contract of
employment either as ageneral common law principle or by virtue of custom. He deployed the quitenovel proposition – (even quoting
Shakespeare’s ‘The Merchant of Venice’,that “the quality of mercy is not strained”) – that suspension without pay ismore merciful than
summary dismissal. Mr. Michael Beckles submitted thatthe Magistrate’s decision could be upheld on two grounds. First, that therewas no
contractual authority to suspend Mr. Weekes without pay or,alternatively, that the company had wrongfully dismissed him because he
soughtto ascertain his legal rights from the Labour Department. Either way,said Mr. Beckles, this was conduct on the employer’s part
which struck at theroot of the contract and was not justifiable in law.

Discussion

[10] Mr. Rawlins’ submissions make it necessary for us to re-state some of theprinciples of law relevant to implied terms. In the individual
contractof employment, the obligations of the employer and employee may be expresslystated or may be implied by the common law or,
depending on the nature of theemployment and any special trade practices, they may be implied by custom.

TermsUsually Implied

[11] The contract between Mr. Weekes and the company was oral. In these typesof contract the law would normally imply certain terms. Without
seeking toenumerate an exhaustive list of the terms implied in the individual contract ofemployment, we mention six which apply to the
respective parties. Forexample, on the part of the employer, it would be implied that it had an obligationto pay the employee’s wages; it
had an obligation not to do an unlawful actand, it had an obligation to take reasonable care for the employee’s safety – Wilsons& Clyde
Coal Company Limited v. English [1938] AC 57.

[12] On the part of the employee, terms implied by the common law include: an obligationto render faithful and honest service; an obligation to
use reasonable care andskill in performing work and an obligation to obey reasonable and lawfulorders. These are terms which are
imposed by the law in contracts of employmentbecause the relationship of employment exists. The contract of employmentcreates a legal
relationship in which the law confers certain rights andimposes certain duties on each party to the contract.

[13] In Scally v. Southern Health and Social Services Board [1991]4 All ER 563, Lord Bridge pointed out that there isa clear distinction
“between the search for an implied term necessary to givebusiness efficacy to a particular contract and the search, based on
widerconsiderations, for a term which the law will imply as a necessary incident of adefinable category of contractual relationship” – p.
571. The jurisprudentialbasis upon which the law may imply a term for reasons of “business efficacy”rests upon an attempt by the court to
discover the presumed intention of theparties - see The Moorcock (1889) 14 P.D. 64. In other words, such an implication will only be
made “when it is necessary toimply a term to give efficacy to the contract and make it a workable agreementin such manner as the parties
would clearly have done if they had applied theirmind to the contingency which has arisen” – per Lord Denning MRin Shell UK Ltd v.
Lostock Garage Ltd [1977] 1 All ER 481 at488. On the other hand, the implied terms in a contract of employmentarise as legal incidents
of the relationship between employer and employee anddo not arise from the presumed intention of the parties. The termsusually implied
in the individual contract of employment do not include a powerof suspension.

Power ofSuspension

[14] There is an abundance of academic authority that a power to suspend an employeewithout pay is not usually implied in the individual
contract ofemployment. See, for example, Fridman, TheModern Law of Employment at p. 486 where the following statement appears:

“Whether the employer has the powerto suspend the employee depends upon the terms of the particular contract
ofemployment. Suspension will be wrongful on the part of the employer ifthere is no power to suspend given by the contract;
in such a case the employeemay sue for the wages which he has lost by being suspended.”

Similarly, Hepple & O’Higgins, Employment Law, Fourth Edition, p.217and Professor K.W. Wedderburn (as he then was), The Worker andthe
Law, Second Edition, p.109.

[15] Turning to case law, we note that the issue in this appeal arose in the HighCourt in Holder v. Caribbean Air Cargo Co Ltd (1984) 19
Barb.L.R. 112. On21 December 1982, the plaintiff, who was not authorized to handlecargo arriving on the defendant’s aircraft, removed a
consignment of hams andturkeys belonging to a customer of the company and distributed them to personsother than the proper
consignee. The defendant suspended the plaintiffwithout pay pending the outcome of police investigations and prosecution. He was
acquitted of criminal charges and on 6 May 1983 the defendant dismissedhim. Denys Williams J (as he then was) found that theplaintiff
had been guilty of conversion and his conduct would have embarrassedthe defendant employer. In his opinion instant dismissal would
 have beenjustified. However, he held that the defendant was liable to pay damagesfor wrongful dismissal on two grounds. First, there
was nothing toindicate that the defendant had power to suspend the plaintiff. Secondly,to the extent that the company must have
determined to allow the question ofactual dismissal to depend on the outcome of the criminal charge, there was nojustification for
dismissing the plaintiff after he was in factacquitted. In coming to his decision Denys Williams Jreviewed textbook learning, and the
cases of Hanley v. Pease &Partners Ltd [1915] 1K.B. 698 and Warburton v. Taff Vale RailwayCompany [1902] 18 T.L.R. 420, in
which the law would appear to have beensettled that, for there to be a valid suspension, there must be expressprovision made in the
contract.

[16] In our opinion Holder v. Caribbean Air Cargo Co Ltd was correctlydecided. The weight of authority is against Mr. Rawlins’ contention
which, heconceded, is an assertion that a term providing for suspension is implicit inevery contract of employment. In our view that is not
the law. It isthe opinion of this Court that, since it has not been proven that Mr. Weekes’contract of employment contained a term providing
for suspension without pay, hissuspension without pay derogated from the company’s implied obligation to paywages. Contrary to Mr.
Rawlins’ contention, a term providing forsuspension cannot form part of the contract of employment unless it is anexpress term, or is
incorporated by virtue of custom as we explain below.

TermsImplied By Custom

[17] We also do not accede to Mr. Rawlins’ invitation to imply a term providing forsuspension on the basis of custom. Terms may be implied in
the contractof employment by reference to custom and the practices of a trade. A customcan be incorporated in a contract of employment
if it is ‘reasonable, certainand notorious’ – Devonald v. Rosser & Sons [1906] 2 K.B. 728 at743. But incorporation of a custom in the
contract will beallowed only if it can be shown, by evidence, that the partiesimplicitly contracted on the assumption that certain norms of
the trade wouldapply.

[18] In Sagar v. H. Ridehalgh and Son, Limited [1931] 1 Ch. 310, theevidence showed that it had been the practice of a cotton mill for many
years tomake deductions from employees’ wages for work not done with reasonable careand skill. A similar practice existed in the
majority of mills carryingon weaving business in Lancashire. Deductions were made from the plaintiff’swages as a weaver because of his
negligent workmanship. The Court ofAppeal held that the established practice in the defendant’s mill resulted inthe incorporation in the
contract of employment of a term enabling thedefendant employer to make the deductions from the wages where the employee didnot
exercise reasonable care and skill in weaving. Lawrence LJexplained the basis for the importation of such practice into the contract
ofemployment at p.336:

“[I]t is clearly established by the evidence of Mr. George Ridehalgh thatthe practice of making reasonable deductions for bad work
has continuouslyprevailed at the defendants’ mill for upwards of thirty years, and that duringthe whole of that time all
weavers employed by the defendants have beentreated alike in that respect.”

[19] In this appeal there is no evidence as to the practice in the vehiclerental trade in respect of suspensions without pay. There is no evidenceof
a custom that is reasonable, certain and notorious. This is not a caselike Marshall v. The English Electric Co., Ltd [1945] 1 All E.R.
653where an established practice of using suspension as a disciplinary measure washeld to be incorporated in the contract of
employment.

Conclusion

[20] In our opinion, since there was no express term in the contract of employment providingfor suspension of the employee without pay, the
company’s suspension of Mr.Weekes without pay derogated from its obligation to pay his wages and amountedto a wrongful dismissal.
Moreover, in the absence of evidence of acustomary trade practice providing for suspension without pay, no such term canbe implied in
the contract.

Disposal

[21] In the result, the appeal is dismissed. The decision of the Magistrate isaffirmed. The respondent will have his costs here and in the Court
below,to be agreed or taxed.

Chief Justice

Justice ofAppeal Justice of Appeal