CLAIM FAILS

Evening Post, Volume CXVII, Issue 55, 6 March 1934, Page 9

CLAIM FAILS

,'" SELLING OF1 SHARES

EMPLOYEE'S DOUBTS

NO WRONGFUL DISMISSAL

Stating that it was clear that the plaintiff had refused to go on with his work, although in so doing he was actuated by the highest motives, Mr. E.Page, S.M., in a reserved decision given in the Magistrate's Court today gave judgment for. the defendants in the claim by Cyril Sydney Brice, a merchant, against V. B. Mclnnes and Co., Lta., sharebrokers, for £300 for alleged wrongful dismissal. The- sum of £2-1, paid into Court by the defendants, was returned to them. Mr. C. A. L. Treadwell appeared for the plaintiff, and Mr. \V. E. Leicester for the defendant company. In his judgment Mr. Pago said that the two main witnesses, the plaintiff on tho one hand and the "Wellington manager for the defendants on the other, both gave their evidence with tho utmost frankness, and there was substantially no dispute about the facts. The defendants were sharebrokers having their head office in Auckland, and a branch office in "Wellington. "The evidence shows," said the Magistrate, "that in tho month of August, 1933, the plaintiff, who was a merchant and had had considerable experience in the commercial world, was engaged in "Wellington by the AVellington manager of the defendants to act as salesman in respect of certain debentures which were being put on the market by a company known as the Investment Executive Trust of New Zealand, .Ltd. The defendants were the sole brokers for this company, and although they did some other sharebroking it was understood at the time that the plaintiff was engagefl, that his time would be devoted exclusively to the selling of these debentures. His salary was to be £6"per week plus a bonus of £20 for every £1000 worth of debenture stock sold by him during each period of four weeks. If his sales of debentures during.such period did not reach £1000 he received no commission. He was told that a salesman with good qualifications and with city connections should bo ablofcto make £1000 a year and he was told that if he made good no might later be promoted to an executive position in the defendant firm. Mr. Page dealt with other conditions of the employment of the plaintiff by the defendant' company. . TWO RESIGNATIONS. -r O ' a '-.A^° Ut -the middle of October, ±i>6o, continued the Magistrate "he learned that the auditor of the Investment Executive- Trust had resigned, and he inquired from the Wellington manager of the defendants tho reason for the resignation and was told that the auditor was too busy to continue doing the auditing. Some time later the plaintiff learned that one of the directors of the Investment Executive Trust had also resigned, and becoming uneasy over these two resignations ho decided to write direct to the managing director of the Investment Executive Trust in Auckland, inquiring the reason. He sent a, long letter off and then, learning that the managing director was out of New Zealand, the plaintiff told the Wellington manager of defendants what he had done and showed him a copy of the letter he had sent. This officer communicated with his head office in Auckland and it was arranged that the plaintiff should proceed to Auckland at the expense of the defendants in order to be put in touch with the chairman of directors of the Investment Executive Trust with a view to his ascertaining the reason for these resignations. The plaintiff went to Auckland, was met by his general manager and by him was introduced to the chairman of directors of the Investment Executive Trust. NO SATISFACTION. '"The plaintiff had two interviews with the latter, and eventually returned to Wellington without having obtained a satisfactory explanation of the two resignations. In Wellington ne had an interview with the Wellington manager of the defendants, together with the managing director (who had also come to Wellington), and he told them that he would not continue selling the debentures until his queries! were satisfactorily answered. He was asked to put his objections into writing, and in a letter addressed to tho manager of the defendants he sets these out. In this letter he state's: 'My present attitude is that an employer has no nght whatever to expect an employee to sell stock when any suspicion attaches to the bona fides of Jne company affected.' "From the time that he first brought ? e,Dl?'" e/"P Prior to going to Auckland (October 12) down to the date °L *t f* 1 -«bOVe quoted (October o0) the plaintiff took up the attitude that he was not prepared to go on with tne sale of these debentures until the matters that he had-raised were explained to his satisfaction. "The defendant company thereupon handed him a letter informing him that his services with them were terminated as from that date. They paid him his salary up to date and offered a hirther week's salary in lieu of notice. The plaintiff then brought the present action, claiming the sum of £300 by way of damages. Since the issue of the -writ the defendants have paid into court a further sum of £24. MAGISTRATE'S VIEW. "In my view the case is'disposed of th J ♦ "A* 8'" Said Mr- Pa 6e. "I flnd that at the time of his engagement the plaintiff was told that he was engaged on a weekly basis and I think xnat the proper interpretation of this is that he was liable to be discharged on a week's notice. "There is, however, a further ground which jn my view is fatal to his claim ■it is clear that he refused to go on "with his work. ■ I entertain no doubt that the plaintiff in so doing was actuated by the highest motives. Apart from the difficulties that he would encounter in trying to effect sales by reason of these two unexplained resignations, he considered that his good name and that of his firm might be imperilled if he continued to endeavour to sell debentures in a concern as to which any doubts attached. Whether the defendants, who were brokers for the concern, were in a position to dispel these doubts I am unablo to say. I think, however, that as a matter of law the plaintiff was not entitled to refuse to go on with the sale of tho debentures that he had been engaged to sell, and, when his services were for that reason dispensed with, to succeed in an action for damages for wrongful dismissal. "If a servant does not approve of the wares that his master vends, it is open to him to leave the employ. He cannot, I think, refuse to go oil with him work and at the same time recover damages for his dismissal consequent on such refusal. "The plaintiff's refusal amounted in my opinion to a repudiation of tho contract of services and justified (lie defendants in putting an ond to it. "For these reasons I think that judgment must go for tho defendants.*'

B. Johnston and Co., auctioneers, will sell household furnishings at their mart §-S[illeEton Street, tomorrow, at 1.30 p.m!