Charlesworth Ashton Shelly Hewlett (Plaintiff/Appellant) v West Indies Oil Company Ltd [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: PETERKIN. J.A.,DAVIS C.J,CHIEF JUSTICE
• Judgment Date: 29 October 1976
• Judgment citation (vLex): [1976] ECSC J1029-3
• Docket Number: CIVIL APPEAL NO. 9 of 1975
• Date: 29 October 1976

[1976] ECSC J1029-3

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 9 of 1975

Between:

Charlesworth Ashton Shelly Hewlett

(Plaintiff/Appellant)

and

West Indies Oil Company Limited

(Defendant/Respondent)

Appearances:

C. Francis for Appellant K. Forde with him.

C. Phillips for Respondent A.W. Archibald with him.

PETERKIN. J.A.

1 The Appellant sued the Respondent Company for damages for wrongful dismissal in the sum of $34,774.15, but obtained judgment for the sum of $2,074.84 which represented one month's pay in lieu of notice and further sums representing monthly benefits to which the Appellant was entitled under his contract of service.

2 The Appellant is a qualified Accountant and was recruited in England by Peat Marwick and Company for employment in their firm in St. Lucia on a two year contract. On his way to St. Lucia via Antigua he was offered permanent employment by the Respondent Company. He informed them of his contract with Peat Marwick and the terms of that contract, and they offered him a higher salary and better terms of employment than Peat Marwick and assisted him in obtaining release from his contractual obligations with them. They also reimbursed Peat Marwick their expenses incurred in recruiting the Appellant.

3 At a meeting with Middleton, the Financial Controller of the Company, and others prior to 1st June, 1971, the Appellant agreed to commence his employment with the Respondent Company on 1st June, 1971, pending the receipt of a letter containing the terms of his contract of service with them. The Appellant started to work on 1st June, 1971, and on 4th June, 1971, he received a letter of that date stating the terms on which the Respondent Company was offering him employment with effect from 1st June 1971. The terms of this letter were referred to in paragraph 2 of the Defence to which it was attached. In that letter one of the terms of employment was that the contract of service could be terminated by either party's giving 30 calendar days notice in writing.

4 The Appellant did not reply to this letter in writing but continued to work for the Respondent Company. He stated, however, that he raised the question of a two year minimum period with Middleton, but that Middleton had replied to the effect that the employment offered him by the Company was permanent. After a few months the Respondent Company became dissatisfied with the Appellant's performance, informed him of this,….. and eventually on 15th December, 1971, terminated his employment and tendered to the Appellant one month's pay in lieu of notice by cheque which unfortunately was unsigned.

5 The Appellant contends that because he had a contract with Peat Marwick for a period of 2 years that it was an implied term of his contract of service with the Respondent that they were to employ him for a minimum period of 2 years and that he was entitled to the sum claimed being the total sum he would have received for the unexpired period of the two years. It is on this implied term only that he grounds his claim for wrongful dismissal, because in his Statement of Claim there is no allegation whatsoever of any variation in the terms of the letter alleged to be the contract, nor is any oral contract pleaded.

6 The grounds of appeal are as follows:—

• (a) The learned trial Judge erred in not awarding judgment to the Plaintiff against the Defendant as the Plaintiff's evidence stood uncontroverted.

• (b) The learned trial Judge erred in law in holding that the Memorandum of the Defendants addressed to the Plaintiff constituted evidence of the truth of the matters stated therein and not evidence merely that the matters therein were stated.

• (c) The learned trial Judge erred in holding that the Letter of Appointment of 4th June 1971, contained all the terms of the contract between the Plaintiff and the Defendant and this was denied by the Plaintiff and there was no evidence to the contrary.

• (d) The Order as to Costs is arbitrary and unjust.

7 Mr. Forde, Counsel for the Appellant, in arguing grounds (a) and (b) told the Court that the Appellant's claim was based partly on an oral contract and partly on a...