Scottish Court of Session Decisions

A strike in the shoemaking trade having occurred in the beginning of 1879, the defenders James Allan & Son, in order to induce the pursuer, a journeyman shoemaker, to work for them instead of coming out on strike with his fellow-workmen, offered him constant work for a year at 28s. a-week, and on 24th February engaged him for one year at that rate of wages. The engagement was in writing, and was to the following effect:—

Page: 14↓

“ Memorandum

From,

James Allan & Son,

Bootmakers,

42 Leith Street,

To Mr Hugh Lennox.

Edinburgh, 24th Feby. 1879.

Dear Sir,

I bind & oblige to give you constant work for the Period of twelve months from this date at the rate of 28/ per week.

James Allan & Son.”

Such an engagement is very rare in that trade. The pursuer entered on the service and worked for the defenders for the whole year to which the engagement applied. On 25th February 1880, in consequence of their having received a letter from the pursuer's law-agent, the defenders intimated to him that the special arrangement under which he had been engaged was not to be renewed, but offered him work on the ordinary terms. The pursuer, however, contended, that inasmuch as he was a yearly servant, and had not received forty days' warning that his engagement would not be renewed, he must be held to have been engaged for another year at the same terms by tacit relocation. He therefore declined the work offered, and on 28th February 1880, after working four days beyond the year for which he had been engaged, left the defenders' employment. He then brought this action for payment of £72, being wages for the period from 28th February 1880 to 24th February 1881. He pleaded—“The defenders' agreement with the pursuer having been renewed by tacit relocation, they were not entitled during its currency to terminate the same without fault or consent on his part.” The defenders denied that notice was necessary, but alleged that in any view sufficient notice had been given. The Lord Ordinary allowed a proof, in which the facts above narrated were brought out, and which by agreement of parties was held to be the proof in two other actions against the same defenders at the instance of other workmen engaged on agreements similar to the pursuers.

On the 24th July 1880 the Lord Ordinary pronounced this interlocutor:—“Having considered the debate, proof, and whole cause, Finds that the pursuer was engaged by the defenders as a shoemaker for the period of twelve months from 24th February 1879, at the rate of 28s. per week, in terms of the memorandum, and that at the end of that period he was informed by the defenders that his engagement was terminated, and that if he remained it would be on the same terms as other workmen daily engaged: Finds that he was not dismissed, and that he was not entitled to hold his said engagement renewed for another period of twelve months: Finds also, that having been offered continued employment upon the usual terms, he had no claim to wages in room of notice: Therefore assoilzies the defenders from the conclusions of the action, and decerns: Finds the defenders entitled to expenses; and remits to the Auditor to tax the account when lodged, and to report.

“ Note.—By agreement of parties the proof in this case was held to be the proof also in two other actions against the same defenders; and the Lord Ordinary was desirous to go over the evidence before disposing of any of them. The result, however, has been, that the Lord Ordinary is unable to find in any of the cases ground for a judgment in favour of the pursuers.

In the present action at the instance of Hugh Lennox, the pursuer's engagement took place on 24th February 1879, under the special circumstances described by him. It was embodied in a memorandum in the following terms—[ quoted supra].

According to the Lord Ordinary's view of the proof, no warning was given to the pursuer, prior to 24th February 1880, that his services were to be discontinued. The defenders evidently thought no warning was needed. But when they heard on the morning of 25th February, by the letter which they then received from the pursuer's agent, they caused notice to be given to the pursuer and other workmen similarly engaged, that their engagements were not to be renewed, and that if they remained after the expiry of their engagements (as apparently they might have done), it would be upon the same terms as the other workmen daily engaged. The pursuer was told that he might work out his week, and have continued employment upon the ordinary terms, but he insisted that he would work under a continued yearly engagement or not at all; and at the close of the week he accordingly left, intimating his claim to a renewed service for another period of twelve months upon the ground of tacit relocation.

The Lord Ordinary is of opinion that the engagement in question was not one to which the doctrine of tacit relocation is applicable. It was quite a special engagement entered into under exceptional circumstances, and unaccompanied by any stipulation, express or implied, that the service was to continue at the end of the twelve months for another period of the same duration if no notice was given. In substance, it was, in the Lord Ordinary's view, an engagement by the week, with a guarantee on the part of the employer that it should endure for twelve months. It does not follow that at the end of the period either party might terminate the employment without any notice whatever. The Lord Ordinary inclines to think that some notice was necessary, and that a week's notice would have been held to be reasonable in a question either of desertion by the servant or dismissal by the master. In the present case, however, he has come to be satisfied that there was no dismissal. He thinks it proved that the pursuer was offered further employment, and refused to take it except upon the condition of his being accepted as a yearly servant engaged by tacit relocation for a second period of twelve months.

Some attempt was made on the part of the defenders' foreman to prove that forty days' warning was given, or at least something equivalent to forty days' warning, and was accepted by the pursuer as such. Of this the Lord Ordinary would only say that the proof was not at all satisfactory to his mind, and that in pronouncing the foregoing interlocutor he does not proceed to any extent upon the evidence as to what passed between the pursuer and Mr Dewar in the second week of January.

The Lord Ordinary has found the pursuer liable in expenses, because in his view there was no justification for raising the present action in the Court of Session, excepting the pursuer's desire to try the question of right as to whether the engagement was of the character which he ascribes to it. Upon that question the pursuer, in the Lord Ordinary's view, has failed; and as his mistake upon that point has been the cause of the whole litigation, in which he has been unsuccessful, the usual consequences must follow.”

The pursuer reclaimed, and argued—When there is agreement of service for a year, and warning is not given, relocation takes effect by course of law. This was laid down by Lord Robertson in Maclean v. Fyfe, Feb. 4. 1813, F.C.; Ersk. iii., 3, 16, Lord Ivory's note; Lord Selborne in Lord Advocate v. Drysdale, 1 R. (H.L.) 27; Campbell v. Fyfe, June 5, 1854, 13 D. 1041; Thomson v. Allardice, June 27, 1823, 2 Shaw (o.e.) 434.