stand that he would inform about him. He tried again to see his chiefs on the next day but one (the Bank being closed on the intervening day), but could not up to 10.30, when there was a boat leaving for Athens and he took it, being in fear of his life. Immediately he left, the Direction G?n?rale telegraphed to the Athens manager,
whose instructions respondent had placed himself, ordering him to notify respondent of his dismissal. This the Athens manager did. There were subsequent negotiations which came to nothing. A book of regulations called "Caisse de Pensions et de Retraites" is part of the respondent's contract of service. Clause 5 gives the Bank the right to dismiss for serious misconduct in the course of the employment, or for repeated acts of minor misconduct. The former is the important provision; it has not been disputed that we are to interpret this contract in the light of the principles of English Law, and the contract seems in this clause to extend the Common Law right which a master has to dismiss a servant for misconduct, by providing that the Direction G?n?rale, which represents the Bank in dealings with the staff, is to be the sole judge of whether the misconduct warrants or does not warrant dismissal. In the particular case, as the Direction G?n?rale did in fact dismiss the respondent, it must be taken that they also did in fact consider the conduct of his which was in question and decide that it warranted dismissal. To see exactly the cause for which the Bank purported to dismiss the respondent we must look at the correspondence between the parties which followed the Bank's communication to their Athens manager directing him to notify appellant of his dismissal; this communication would doubtless be more explicit, but it was not in evidence. In their letter of the 29th November, 1922, they put the cause of the dismissal on two grounds (
the Bank's orders in the nearest place in which he could be safe and where the Bank had a branch. As to the effect of Clause 5, here, too, it was a matter of fact whether the Bank exercised its functions in determining the question, faute grave or not, in accordance with ordinary principles of justice. I cannot say that there was no evidence on which the Court could find, as it did, that they failed to do so. Perhaps it was not very strong evidence, but it does appear that the Bank did not judge the Constantinople incident, as it should have done, by itself, but took it in connection with another matter no longer open to it by reason of earier waiver; also it is clear that before the Direction could act as judge at all, it must have before it something capable of being reasonably considered as a "faute grave commis dana leur fonction." Could this be said of a case where the act had nothing whatever to do with the functions of a bank officer, but was the instinctive reaction to the impulse every man feels to preserve his own life? The Court below found that the Bank did not exercise its functions
Clause .5 properly; that was matter of fact and it has decided it against the Bank. There was in my opinion evidence to warrant that finding and for that reason I think the appeal must be dismissed. On the question of damages, the measure must be the payments which would have been made to respondent if his contract had been terminated
, by reason of Article 3 which provides for three months notice, and Article 21 which provides in certain cases, of which it is admitted respondent's was one, for pension. As to both heads of payment, difficulty is caused by the fluctuations in the value of the Turkish currency; salaries were from time to time altered by the Bank to meet the fluctuations; it is suggested out of benevolence but possibly also in order to get the Bank's work done. At the material time, October, 1922, salaries were regulated in Turkey, where respondent was last employed, by a decision of the Committee of Management of the Bank dated 18th May,
taken to do by the contract, viz., in this case expressly and impliedly to serve the Bank generally and without any reservation at the place indicated by the Bank- the employer is surely entitled to dismiss him. Poussard v. Spiers
the old contract:
all the circumstances what was required was not only being ready and willing in words or on paper but also a disposition, capacity and ability to serve. A conditional disposition to serve might be inferred from the so-called offer, but certainly no capacity or ability to do so. Furthermore, if the terms of the new offer had been accepted, he would have been the employer and not the employee, the master and not the servant. To put it plainly, is not the position this: B. enters the service of A. and
takes to serve A. generally. Then before the expiration of the term of service B. abandons A.'s service. B., who committed a breach of contract thereby, wishes to justify the breach committed by him. If he succeeds to do so he will not be liable to an action for damages; but I fail to see how he can have any claims whatsoever against A. In my opinion, he would have no claims against A. even if A. were just as much to blame as he was for the state of affairs which made the performance of the contract impossible. But surely A. is not responsible or liable for the acts of X. (B.'s sovereign power) doing something rightly or wrongly, which incapacitated B. from doing what he had
taken to do by his contract. In other words, how can plaintiff in this case allege that he was wrongfully dismissed by the Bank and assign as his sole reason the impossibility of the performance of the contract on his part due to the act of a third party, without alleging even that the Bank was in any way concerned, either directly or indirectly, with the act of this third party-the act which forced him to terminate his contract? He says in so many words: "I was not able to stay where I was ordered to, because I had been sentenced to death; I could not go where the Bank wanted me to go-for the same reason; I asked the Bank to accept my services anywhere I chose to work-they refused to retain my services
the altered circumstances and in the way dictated by me; they must pay me damages and pension." The Bank had full rights to terminate plaintiff's services
of the Caisse de Pensions by giving three month's notice: they could do this as a measure of economy for or any other consideration, of which they are the sole judge. In such a case plaintiff would
On the other hand, if the employee should wish to leave the Bank's service, though he may do so with their consent by giving three month's notice, he is not entitled to any pension or other compensation (see Articles 4 and 19 of the Caisse); though the Bank may, if they think fit, make him an allowance: if they do not do so, the employee, having thrown himself on the mercy o the Bank, has no right of action: (see Taylor v. Brewer, above). Taking for granted the facts deposed to by plaintiff-namely that he was
sentence of death for no crime of his own, that he met Tewfik Bey in Constantinople and that he had to leave Constantinople to save his life-even so, plaintiff, though he might be justified in abandoning his post, is, however, not entitled to any damages, because it was he who put an end to his service at the place indicated to him by the Bank for an indefinite period (which really goes to the root of the contract-Poussard v. Spiers and for reasons not emanating from and practically unknown to them and over which they had no control, and not the Bank that dismissed him at all: it is immaterial that the Bank, instead of saying more clearly than they did-namely that plaintiff had himself terminated his contract of service by abandoning his post without present intention of returning-and assigning this as their sole reason for not employing him any further, stated instead that they dismissed him for the "faute grave" of abandoning his post. In the view that I have taken of this case, plaintiff cannot maintain an action for wrongful dismissal, nor is he entitled, in view of Article 19 of the Caisse, to any allowance or compensation. In my opinion the appeal ought to be allowed. Appeal dismissed with costs. The judgment of the Privy Council (Lords Blanesburgh, Warrington of Clyffe, and Lord Thankerton) was delivered by Lord Thankerton on 21st January, 1930, and is as follows:- LORD THANKERTON: In this action the plaintiff, who is respondent in the leading appeal, seeks to recover damages for wrongful dismissal from the defendant Bank, who are appellants in the leading appeal. The Trial Judge found the appellants liable in damages, which he assessed on an alternative basis. The appellants appealed to the Supreme Court of Cyprus, who affirmed the Trial Judge on the question of liability, but directed the re-assessment of damages on a lower basis. From that judgment the leading appeal was taken by the appellants on the question of liability, and the respondent has taken a cross-appeal on the question of damages. The respondent, who was an Armenian and a Turkish subject, became a temporary employee of the appellant Bank in 1901 at the branch office at Aidin in Turkish Asia Minor. In 1903 he entered the permanent service of the Bank, and subscribed to a book of regulations, called "Caisse de Pensions et de Retraite," which deals with conditions of service and a contributory pension fund for the staff. He continued in their service until 27th January, 1923, when he was dismissed without notice and without pension
the circumstances referred to later. The respondent remained at the Aidin Branch until 1913, when he went to the Sokia Branch, from which he was re-transferred to Aidin in June, 1919, immediately before the destruction of Aidin by the Kemalists, by whom he was imprisoned and sentenced to death. The timely arrival of the Greek forces enabled him to avoid the execution of the sentence and to escape to Smyrna. After various changes he came back to Smyrna in July, 1920, and he remained there until 8th September, 1922, when he applied for and obtained leave, but was asked by Mr. Simmons, the branch manager, to take a confidential letter to the Read Office at Constantinople. The respondent arrived at Constantinople on 10th September, 1922, delivered the letter, and was given temporary employment at the Head Office, which appears to have superseded his leave. Meantime Smyrna was destroyed by the Turkish forces. The respondent's story of his experiences at Constantinople, which substantially remains unchallenged, is as follows:- "I found Constantinople in a disturbed state. I went to the Bank and saw Mr. Ungar, the sub-manager in the Direction G?n?rale. I gave the confidential letter Mr. Simmons had given me to Mr. Ungar, I also told him what Mr. Simmons had told me confidentially. I explained to him the state of affairs in Smyrna. At this interview I asked him to allow me to leave Constantinople, because it was unsafe for me to remain. I told him I bad been condemned to death at Aidin and that, therefore, I could not remain. Mr. Ungar referred me to Mr. Skanzianni, le chef du Personnel. I saw him. At the office of Mr. Skanzianni, Mr. Bouzourou happened to be present, and Mr. Skanzianni called in the Chef du Bureau, Mr. Goyar. I explained everything to Mr. Skanzianni and asked permission to leave. He laughed at me. Mr. Bouzourou was then Chef du Bureau du Personnel. I was not given leave. I stayed in Constantinople for 20 days, asking him every day to transfer me to any branch outside Turkey. They would not do so. Instead of giving me leave they gave me temporary work. On Thursday evening, on coming out of the office, I came across Tewfik Bey who had been Chief of Police at Aidin at that crucial time. He was in mufti. I could not recognise him. He questioned me. 1 was much perturbed and immediately changed my hotel for fear that he should betray me at any time. On the Friday (28.9.22) the Bank was closed. On the Saturday I went to relate the incident of meeting Tewfik Bey, to my Chief. The Chiefs came late, 9.30 or 10 a.m., so I saw two SubChiefs, Mr. Berturucchi and Mr. Baache. I related to both of them the incident of meeting Tewfik Bey, explained to them the whole affair; and stated that as my life was in danger I wanted to leave at once. There was a ship leaving on the Saturday morning at 10.30 a.m. for Athens. I had told these two gentlemen that I was going to Athens; and I left by this boat." The respondent reached Athens on 1st October, 1922, and found there Mr. Simmons and most of the Smyrna staff. On 3rd October Mr. Simmons advanced to the respondent his salary for October, but took it back from him in view of a telegram he had received from the Head Office to the effect that the respondent was dismissed, though the ground of dismissal was not then stated, In a letter of 2nd October, addressed to Mr. Simmons, and letters of 18th October and 15th November addressed to the Head Office, the respondent recounted the circumstances of personal danger which moved him to leave Constantinople, and again requested transfer to a branch outside Turkey. To the Head Office he protested against the dismissal. On 29th November the appellants wrote to the respondent:- "We can hardly take into consideration the reasons put forward by you to explain your precipitate departure and your dereliction of the service. We would besides remind you that you have behaved in an analogous manner in 1920 when you were at Adana, and your relapse fully justified the measure of revocation (dismissal) that has been applied in your case. However, we are willing to attenuate that penalty and would ask you to tender your resignation-which would enable us, on receipt of your letter, to consider the possibility of granting you pecuniary assistance. It should nevertheless be
stood that this is a mere offer resulting out of extreme benevolence on our part, and that, should the same not be accepted by you, and should your acceptance of same not be notified to us within 25 days from to-day, it should be regarded as null and void." The respondent declined that offer, and ultimately his name was struck off the list of members of the Bank's staff on 27th January, 1923. Provision is made for dismissal n Article 5 of the "Caisse de Pensions et de Retraites" as follows:- "La Direction G?n?rale a le droit de revoquer les employees pour faute grave ou abus commis dans leur fonctions, ou pour violation du secret qu'ils doivent garder sur les affaires de la Banque. La Direction G?n?rale est seule juge d'appr?cier le caract?re de gravit? de Ia faute. Elle a le droit de revocation pour fautes l?g?res successives et repet?es malgr? l'avertissement des sup?rieurs."
neither an indemnity nor a pension of any other nature is granted to an employee who has been dismissed.
an employee who resigns has no right to any pension or indemnity, but the Direction Gen?rale have the faculty to grant him au amount not exceeding in capital the amount of the sums retained from his salary.
a discharged employee has right to three months' notice and an indemnity borne by the Pension and Superannuation Fund and to be fixed in terms of Article 21. It was not disputed by counsel for the appellants that the risk of personal danger which caused the respondent's flight from Constantinople, in disregard of the appellants' repeated refusals to allow him to leave, was real and justified from the point of view of his personal safety, and, in their Lordships opinion, this is established by the evidence, and, in particular, by that of Roy McLaughlan, an Officer in the Intelligence Department attached to the High Commissioner's Office in Constantinople. He stated that an Armenian who had been condemned by the Turkish authorities to death would be in "an uncomfortable position" there at the end of September, 1922, and that if he had been in the respondent's shoes he would have left Constantinople at the first possible opportunity. On the contrary, the appellants submitted three contentions, all of which were based on the view that the respondent incurred a permanent personal disability, which incapacitated him from further ability to perform adequately his part of the contract. These contentions were
Admittedly the respondent
took by his contract to serve the Bank in Turkey or any of its branches elsewhere, and the contentions of the appellants must all be tested as at the time of dismissal. In their Lordships opinion the appellants have failed to establish that at the time of dismissal they were entitled to regard the respondent's disability as a permanent one. In his letter of 2nd October the respondent requested a provisional transfer to one of the agencies outside Turkey "whilst awaiting the end of the present situation." The appellants have not suggested any impossibility of compliance with that request; indeed, they probably never considered it, in the view that they took of the situation. On the views expressed above that the order to remain in Constantinople was not a lawful order, and that at the time the disability could not be regarded as a permanent one, their Lordships are of opinion that the respondent's offer of service outside Turkey is sufficient to entitle him to pursue the present suit, and that the appellants are equally unable to found on that disability as justification for the dismissal. The failure of the appellants to establish that the disability had become permanent and that they could not employ him meantime at some place where the disability did not affect him, also disposes of the contention that the contract had become impossible of performance by the time of dismissal. Accordingly their Lordships are of opinion that the dismissal of the respondent by the appellants was wrongful and that the respondent is entitled to recover damages. On the question of damages, their Lordships agree with the majority of the learned Judges of the Supreme Court both as to the measure of the damages and the basis on which-for that purpose-the pension to which the respondent would have been entitled is to be calculated. Their Lordships are of opinion that the pension must be calculated, in terms of Article 14, on the basis of the salary which the respondent in fact received on 31st December, 1921, irrespective of how that salary was arrived at. On that basis parties are agreed that the respondent would have been entitled to a pension of £T.56.375, but their Lordships are of opinion that the rate of conversion for the purposes of a decree in sterling should be the rate current at the time of dismissal instead of that current at the date of the decree; parties are agreed that the former rate should be taken as 7.20. In the view that their Lordships take of the measure of damages, parties are agreed that the amount of damages should be arrived at by taking the appropriate proportion of the £2,000 awarded by the Trial Judge; on this basis, the amount of damages will be £1,378 10s. 6d., and the judgment of the Supreme Court will fall to be modified to that extent and the cross appeal to be allowed for that purpose. Their Lordships will, therefore, humbly advise His Majesty that the leading appeal should be dismissed with costs and that the cross appeal should be allowed without any order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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