Scottish Court of Session Decisions

John Campbell was engaged for the year from Whitsunday 1885 to Whitsunday 1886 as farm servant with the Rev. D. Mackenzie, minister of Lairg. Campbell's duties were to work upon the glebe, and his wages were £18 in money and certain allowances—house, meal, milk, &c.

In January 1886 Mr Mackenzie and Campbell had a conversation about a re-engagement, the result of which was that Campbell was re-engaged for the year from Whitsunday 1886 to Whitsunday 1887 at £20 in money and the same allowances as he had before. On 6th April there was a dispute as to the alleged failure of Mr Mackenzie to give Campbell the quantity of milk to which he was entitled, and in the course of it Mr Mackenzie told him he might leave if he was not satisfied.

In a few days thereafter Mr Mackenzie heard reports that Campbell had said that he would not stay with him, and that he had mentioned to more than one person that he was leaving the service. Mr Mackenzie then, without saying more to him on the matter, advertised on 11th April for a new servant, and engaged one shortly thereafter.

Campbell intimated to him that he would look to him for his year's wages. He failed to get a place before Whitsunday, when he left the service, though he endeavoured to do so at various markets in April. He raised this action for £43 (estimated as the value of his wages, house, and allowance for the year 1886 to 1887) as damages for wrongous dismissal, or as the amount to which he was entitled in respect of his dismissal.

The Sheriff-Substitute ( Mackenzie) found that the pursuer had been wrongously deprived of the situation for which the defender had so engaged him in January, and that the defender had not shown that he was justified in refusing to implement the re-engagement. He therefore decerned for £43 with expenses.

On appeal the Sheriff ( Cheyne) found “that on 8th or 9th April the pursuer applied to Mr Butters, hotel-keeper, Lairg, for employment, stating that he was leaving the defender, and that on 11th April he said to Mr Campbell, inspector of poor, Lairg, who was advising him to make it up with the defender, that he would not remain with the defender for any money: Finds that this, which was reported to the defender, amounted to a waiver on the part of the pursuer of his right to insist on the fulfilment of the arrangement entered into in January, which arrangement was thus departed from by mutual consent: Finds that the defender was accordingly free to engage, as he did engage, another servant to come to him in the pursuer's place at Whitsunday, and is not liable in damages for refusing to retain the pursuer in his service for the current year: Therefore assoilzies the defender from the conclusions of the action,” &c.

The pursuer appealed, and argued—Both Sheriffs had found it proved, and it was clear, that there was a re-engagement. The statement by the defender that pursuer might go if he was not satisfied about the milk was not a dismissal, and the pursuer did not take it as such. It was only when he found the defender was getting another servant that he began to seek a new place, as was his proper course. His reported conversation as to leaving the defender was no good ground for the defender going on to engage another servant without speaking to him.

Authorities— Maclean v. Fyfe, February 4, 1813, F.C.: Ross v. Pender, January 8, 1874, 1 R. 352.

The defender argued—No re-engagement in January was proved. The defender had only said that he would keep on pursuer at increased wages if pleased with him. Even if he were reengaged, the pursuer had waived his right to stay by the observations which he made to Mr Butters and to Mr Campbell, and these statements coming to the defender's ears, he was entitled to take it that the pursuer had made up his mind to leave at the Whitsunday term 1885. Even assuming that damages were due to the pursuer by the defender, the amount given by the Sheriff-Substitute was a great deal too large.

At advising—