1977 Febr. 22 [TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU, JIJ — N1COLAOS MARCOULLIS, N I C O L A O S MARCOULLIS C. D. HAY & SONS LTO. Appellant, y F V · C. D. HAY & SONS LTD., Respondents. (Case Stated No. 163). Master and servant—Employee on regular leave abroad—-Failed to return on expiration of his leave—Termination of his employ ment—Whether employee left his employment voluntarily— And whether his employment had come to an end voluntarily —Positive action by employee showing thai master and servant relationship was terminated by him. 5 Court of Appeal—Case Stated—Decision of Industrial Disputes Court—Court of Appeal not prevented from deciding any issue of law not decided by trial Court once all the relevant facts are before it. 10 The appellant, who had been in the employment of the re spondents since May 1, 1971, went to England on.August 10, 1974, after obtaining leave of absence abroad for three weeks for health reasons. He did not return to his duties on the ex piration of his leave but on September 16, 1974 he wrote* to 15 the respondents enquiring about his position in the company as he had heard rumours about redundancies in their company. The respondents wrote** back on October 17, 1974 and in formed him that as they did not hear from him upon the expiry of his leave they considered him as having resigned from the 2 0 mmpan\ The appellant alleged that he wrote two other letters. one dated August
- 1974 and one dated September 30,
- bm thc*e letters*** were never received by the respon dents. When the appellant joplted to ihc Committee of the Provident Fund of the personnel of the respondent to be paid his bencfus under the Fund the Committee took the view that the •Sec the letter .it ρ 137 pnu ** Sec the letter at η 13K po\t ***Scc these letters at p. 137 and p. 13K ic^pectively. 134 25 5 appellant had left the respondents' employment voluntarily and, therefore, in accordance with the Regulations of the Fund, he was not entitled to be paid the amount in "B ac count" that is to say the amount representing thecontribution of therespondents. 10 By an application to the Industrial Disputes Court the ap pellant sought a declaration that the relationship of master and servant between him and the respondents was still con tinuing, having never been lawfully terminated, and, therefore, he was entitled to be paid his salary and all other benefits. 15 The Industrial Disputes Court, being of the view that it was called upon to decide only if the appellant had been dismissed from the service of the respondents or whether he had left it voluntarily, held that the appellant had left voluntarily theemployment of the respondents;and in reaching such view it eva luated the facts from an objective angle irrespective of what the parties concerned thought that it had happened (see Nestoridouv. D. J. Demades& Sons Ltd.,
(1971)A.T.R. 86). The appellant appealed by way of a Case Stated. 20 25 30 35 40 Counsel for the appellant contended (
- a)that the Court be low failed to decide on the basic issue in this case, namely whether the employment of the appellant with the respondents had lawfully come to an end; (
- b)that some positive action on the part of either the respondents or of the appellant was necessary in order to find that themaster and servant relationship between themhad come to anend. Held,
(1)that this Court is in full agreement with the con clusion reached by the Industrial Disputes Court to the effect that the appellant left the employment of the respondents voluntarily; and that this is a correct application of the law tothe facts of this particular case.
(2)That, in effect, the Industrial Disputes Court did find that the appellant's employment with the respondents had come to an end lawfully; and that this is ίο be derived by inevitablc and inescapable implication from the fact that the Industrial Disputes Court found that the appellant left volun tarily the serviceof therespondents.
(3)That, moreover, there being nothing to prevent this Court from deciding any issue of law which, allegedly, theIndustrial Disputes Court did not decide, once all the relevant 135 1977 Febr. 22 NICOLAOS MARCOULLIS v. C. D. HAY & SONS LTD. 1977 Febr. 22 NICOLAOS MARCOULLIS v. C. D. HAY & SONS LTD. facts are before it, there is no difficulty in reaching the conclusion that the employment of the appellant with the respondents came lawfully to an end due tohishaving left voluntarily such employment.
(4)That the whole conduct of the appellant does amply 5 constitute positive action on his part showing Chat the master and servant relationship between him and the respondents was terminated by him (see the Nestoridoucase supra):and that, accordingly, hisappeal willbe dismissed. Appeal dismissed. 10 Cases referred to: Nestoridou v. D.J. Demades&Sons Ltd.,
(1971)A.T.R. 86; SopromaS.p.A. v.Marine&Animal By-Products Corporation [1966] 1 Lloyd's Rep.367 atp.387; Theodorou v. Americanos& Others
(1969)A.T.R. 160; 15 Charalambidesv. Frozopak Ltd.,
(1970)A.T.R. 130; Katikki v.Stavrakis
(1970)A.T.R.
- Case Stated. Case Stated by the Chairman of the Industrial Disputes 20 Court relative to his decision of the 31st December, 1976, in proceedings under sections 3 and 9 of the Termination of Employment Law, 1967 (Law 24 of 1967) instituted by Nicolaos Marcoullis against C. D. Hay & Sons Ltd. whereby it was found that his employment with the re- 25 spondents had been terminated due to his having voluntarily abandoned such employment. A. S. Angelides, for the appellant. K. Chrysostomides, for the respondent. Cur. adv. vult. 30 T h e judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: I n this appeal by way of a Case Stated, the appellant complains against a decision of the Industrial Disputes Court (in application No. 180/75) by virtue of which it was found that his employment with the respondents had been terminated due to his having voluntarily abandoned such employment. 136 35 The facts of the case, as they appear from the Case Stated, are as follows:The appellant, who had been in the employment of the respondents since May 1, 1971,was, in July 1974, called 5 up for service in the National Guard, as a result of the Turkish invasion of Cyprus; on August 1, 1974, he was discharged from theNational Guard, after the respondents had taken steps to that effect, in view of the fact that his services were needed at their garage, where he was in 10 charge of a section. On August 10, 1974, the appellant, who had obtained before July 1974 leaveof absence abroad for three weeks for health reasons, went to England with his wife and one of his two minor children, having obtained, through the 15 respondents, return tickets. Prior to his departure he took part at a meeting of thesenior staff of the respondents at which there was discussed the question of the termination of the employment of respondents' personnel due to redundancies.Hereturned toCyprusonDecember24,
- 20 25 30 40 After his return he handed to the respondents a copy of a letter dated August 25, 1974, and addressed to them by himfrom London, which, however, was never received by them in Cyprus, arid which reads as follows:"I am writing to you to inform you that I have arrivedinLondon and I will try to meet Mr. Ridgway. No doubt the situation had worsened since I left and I do not know the exact situation in C. D. Hay. Please let me know as soon as possible my position in the Company as I do not want to return and find myself redundant. As soon as I have your reply confirming my position I will immediately return". On September 16, 1974, he wrote to the respondents the following letter, which was received by them, and reads asfollows:"I amwriting toyou in thehope.that you willbeable to advise asto my present position in the.Company. Rumours of wide C. D. Hay redundancies havebeen spreading around, even inLondon. Please let me know officially as soon as possible, asI havetothink about myfuture". 137 1977 Febr. 22 N1COLAOS MARCOULLIS v. C. D. HAY & SONS LTD. 1977 Febr. 22 NICOLAOS MARCOULUS v. C. D. HAY & SONS LTD. The appellant alleges that he wrote a further letter to therespondents on September 30, 1974 (copyof whichhe gave to themonhisreturn from England) which, however, was never received by them in Cyprus, and which reads as follows:"This is to confirm my two previous letters to you dated 25th August and 16th September, 1974, requesting confirmation of my position at C. D. Hay. So far I have had no reply from you and this I find extraordinary. 10 I did manage to see Mr. Ridgway some time ago and asked him about C. D. Hay, but there was little he could tell me apart from the fact that the motor tradewasruined inCyprus. Looking forward to having a reply soon". 15 On October 17, 1974, the respondents replied to the appellant's letter of September 16, 1974, as follows:"Thank you for your letter dated the 16th September enquiring about your position at C. D. Hay and Sons Ltd. Asyou mayrecall you requested leavewithoutpay for three weeks from the 10th August to take your wife to London for medical treatment. This was granted toyou asaspecialfavour. 20 As we did not hear from you upon the expiry of 25 yourleave weconsideredyou ashavingresigned from the Company and employed someone else in your position. Wc do hope you will be able to obtain a good job inLondon andwishyoueverysuccessinit", 30 In the meantime, onOctober
- 1974,the appellant had secured an employment permit in England and on October
- 1974, he found employment as Service Manager with Kenning Car Mart Ltd.. and he worked in the employment of that concern until his return to Cyprus in De- 35 cember
- On October 25, 1974, he addressed to the respondents the following letter:138 "Thank you for your letter dated 17th October re garding my position at C. D. Hay & Sons Limited. It is true that I was granted threeweeks leave as from 10th August, but as you know, the situation has wor sened since and I could not communicate with you, although I had written to you four times prior to this letter. 10 15 As you may probably know, I kept in constant touch with Mr. Ridgway since I arrived here, reas suring him about my intentions to return to C. D. Hay as soon as I received your reply. In the circum stances, you do realise that it was vitally important for me to know my position before returning to Cy prus, as I do not want to return and find myself out of work. I am, therefore, rather surprised to read that you have considered me as having resigned from the Company. 25 However, I do not want to dispute the fact that I am no longer a C. D. Hay employee. The only prob lem, as you know, being the Provident Fund. I shall be reasonably happy to be declared redundantor, my 'service no longer required', and I am prepared to sign a declaration that C. D. Hay & Sons have no le gal or other obligations towards me. I do hope that you will be kind enough to agree tothis. 30 I look forward to receiving your reply together with a statement of money I am to receive from the Company in final settlement, i.e. Provident, Fund (A +B), August salary. I also think I owe theCompa ny about £ 2 0 . - which will naturally be deducted. 20 35 I am currently the Service Manager of Kenning Car Mart at Acton, and shortly I am going on a Ma nagement Course. I took this job after I consulted Mr. Ridgway who strongly urged me to accept it. Τ am happy that t found agood job but feel sorry foi parting with C. D. Hay. Τdo hope that things will sort themselves out and we shall meet some day. Please let me know next time you are in London,we can always have a drink. 139 1977 Febr. 22 NICOLAOS MARCOULLIS v. C. D. HAY & SONS LTD. 1977 Febr. 22 NICOLAOS MARCOULUS V. C. D. HAY & SONS LTD. Looking forward toyour reply". The respondentsreplied to himby a letter of November 12, 1974, which reads asfollows:"Thank you for your letter of the 25th October. As our Company records show that you left Cyprus on leave and never returnit will notbepossible for the Board to accept your request for considering you asredundant. 5 However, I have passed on your request to the Provident Fund Committeewho will decidewhether 10 or notyou willbe entitled to withdraw both A andΒ accounts. The Committeewill meet within the next few days and I am sure you will be notified of their decision soon. Wishing you success in your new career". 15 The Committeeof the Provident Fundof thepersonnel of the respondents took the view that the appellant had left the respondents' employment voluntarily and, there fore, in accordance with the Regulations of the Fund,he was not entitled to be paid the amount in "B account", 20 that is tosay the amountrepresenting thecontributionsof the respondents. It is a fact that, on August 26, 1974, therespondents, by a noticein thepress,had called all their mechanicsand other personnel, except those serving in the National 25 Guard, to report for duty and itwas stated in such notice that if they failed to do so they would be replaced by others. But, as correctly pointed out by counsel for therespon dents, this notice could not reasonably be taken as refer- 30 ring to the appellant, because he was abroad at thetime, on leavewhich hadnotyet expired. By his application to theIndustrial Disputes Courtthe appellant had sought a declaration that the relationship of master and servant between him and the respondents 35 was still continuing,having never been lawfully terminat ed, and, therefore, that he was entitled to be paid his sa lary and all other relevant benefits. 140 It is correct that the Industrial Disputes Court did not pronounce expressly on this issue, as it took the view that it was called upon todecide only if the appellant had been dismissed from the service of the respondents or whether 5 he had left it voluntarily; and, in the light of the facts already set out above in this judgment, as well as of other material, which,in our opinion, need not be referred to by us specifically, it held that the appellant had left voluntarily theemployment of therespondents. 10 In reaching such a view the Industrial Disputes Court made it clear that it had evaluated the facts from an objective angle irrespective of what the parties concerned thought that it had happened; it appears that, in this connection, the Industrial Disputes Court adopted the ap15 proach which it had expounded as thecorrect one, in such circumstances, on previous occasions (see, for example, Nestoridou v. D. / . Demades and Sons Ltd.,
(1971)A.T.R. 86). We are fully in agreement with the conclusion reached 20 by the Industrial Disputes Court to the effect that the appellant left the employment of therespondents voluntarily. We regard this as a correct application of the law to the facts of this particular case and we really fail to see how any other conclusion could have been reasonably reached 25 in the circumstances. Counsel for the appellant, who, obviously, was very eager to upset the above finding of the Industrial Disputes Court, because it results in his client receiving a smaller amount from the Provident Fund than he would have re30 ceived had he been dismissed from the respondents' employment, has relied on theNestoridou case, supra, in submitting that some positive action on the part of either the . respondents, as the employers, or of the appellant, as their employee, was necessary in order to find that the master 35 and servant relationship between them had come to an end; and, counsel for the appellant, has complained, further, that the Industrial Disputes Court has failed to decide on the basic issue in this case, namely whether the employment of the appellant with the respondents had 40 lawfully come to an end at all. We aireof theopinion that, in effect, the Industrial Dis141 1977 Febr. 22 N1COLAOS MARCOULLIS v. C. D. HAY & SONS LTD. 1977 Febr. 22 ' NICOLAOS MARCOULUS v. C. D. HAY & SONS LTD. putes Court did find that the appellant's employment with the respondents had come to an end lawfully; in our view this is to be derived by inevitable and inescapable implication from thefact that theIndustrial Disputes Court found that the appellant left voluntarily the service of the respondents. 5 Moreover, we think: that, in any event, there is nothing to prevent us from deciding ourselves any issue of law which, allegedly, theIndustrial Disputes Court did not decide, once all therelevant facts arebefore us (aswasdone, 10 for example, in Soproma S.p.A. v. Marine & Animal Byproducts Corporation, [1966] 1 Lloyd's Rep. 367, 387); and, we have no difficulty in reaching the conclusion that the employment of the appellant with the respondents came lawfully to an end due to his having left voluntarily 15 such employment (as was found to be the position in a number of similar cases such as Theodorou v. Americanos and Others,
(1969)A.T.R. 160, Charalambides v. FrozopakLtd.,
(1970)A.T.R. 130, Katikki v.Stavrakis,
(1970)A.T.R. 185). 20 Also, we are of the opinion that the whole conduct of the appellant as recounted in this judgment does amply constitute positive action on his part showing that the master and servant relationship between him and the respondents was terminated by him; thus, the element envi- 25 saged in the Nestoridou case, supra, does clearly exist. For all the above reasons we find no merit in this appeal and it is dismissed accordingly; but, taking into account the fact that the appellant went initially away to England on regular leave granted to him by the respon- 30 dents and had to leave their employment due to the tragic situation which supervened in Cyprus after the Turkish invasion in the summer of 1974, we are not prepared to make any order as tocosts against him. Appeal dismissed. No order as to costs. 142 35