Estate worker ‘Somerset’ loses appeal
THE appellant, Somerset, was employed at Ressouvenir Estates Ltd factory under an agreement that wages were not payable for any period in respect of which he had not
recorded the time worked on a time card.
In respect of a certain period he clocked in but failed to clock out. The respondents admitted that he worked, but not that they knew he had worked, and refused to pay him wages for the period .
In a claim by the appellant for wages, the Magistrate found wisdom with the appellant but the Full Court later reversed the judgment.
On appeal to the Federal Supreme Court, it was argued for the appellant that (a) the withholding of payment was a deduction from wages in contravention of the Labour Ordinance , Cap. 103 , and that (b) the respondents had repudiated the contract but had no right to do so, as the contract had been substantially performed and they had received the benefit.
Held: the recording of the time worked was a condition precedent to the payment of wages . Payment had been made in accordance with the terms of the contract and there was therefore neither any deduction from wages nor any repudiation of the contract.
The Appeal was dismissed by the Federal Supreme Court constituted by Sir Alfred Rennee and Judges C. V. H. Archer and C. Wylie.
F.R.Wills for the Appellant.
J.H.S. Elliot, Q.C., with A.B. Sankar for the Respondents.
Delivering the judgment, Justice Archer said : This appeal is concerned with the proper interpretation to be placed upon a term in a contract of employment . The sum at stake is small, but the principle involved is of some importance.
The appellant is a workman employed in the respondent company’s factory. He was under an oral contract and his wages were computed on an hourly basis, but were paid weekly. In 1953 the company instituted a system of time recording by machine on individual cards; workmen manipulated the machine to record the time of their arrival at, and departure from, the factory, and wages were collected in accordance with the hours of attendance in the factory which these cards showed.
The system proved, however, not to be entirely satisfactory for claims were sometimes made in respect of work done during hours of attendance not shown on time cards, and, in 1955, the company published a notice from which, the appellant admits, the term of his contract of employment, which is the subject of dispute in this appeal, is to be extracted.
That notice is as follows:-
Attention is drawn to the fact that for all workers required to clock in and out of the factory, the authority for payment of wages is the time recorded as worked on their time card.
Instances have, however, occurred of workers alleging that they failed to clock in and out of the factory, but representing to the management that they were actually at work.
For a record of two weeks from the date of this notice, workers failing to check in and out of the factory during a work period, will on the first occasion be paid for the period, and issued with a written warning that they have committed an offence. Thereafter, any worker who has been warned and who fails to check in and out will not be paid for the period.
After this period of two weeks has elapsed, any worker who fails to check in or out will not be paid for the work period concerned.
In his concluding remarks Justice Archer said: The Appellant was not entitled to be paid in respect of any period which he had not recorded on his time card and no question of payment on the basis of work actually done during unrecorded time could therefore arise.
I consider, therefore, that the authorities on a substantial performance of a contract, on which counsel for the appellant relied, are not in point.
In my judgment the Full Court came to the right conclusion and I would dismiss the appeal with costs.
The other two judges of the Federal Supreme Court concurred with the judgment.