WRONGFUL DISMISSAL.

Waikato Times, Volume 97, Issue 15980, 7 May 1924, Page 6

WRONGFUL DISMISSAL.

ALLEGATION BY A FOREMAN. ELECTRICAL FIRM SUED. IMPORTANT MATTEFi RAISED. Same very interesting points arose in a civil action which was introduced at the Magistrate's Court at Hamilton yesterday, before Mr H. A. Young, S.M." ' • Rcrtrand Harding Andrews, of Hamilton, electrical and mechanical engineer, was plaintiff, and Turnbull and Jones, Ltd., of Auckland, electrical engineers, the defendants. It was set out that in July last plaintiff was appointed as foreman in defendant's Hamilton branch for a year at a rate of £3OO a year and that In January, 1924, defendants wrongfully dismissed plaintiff. It was further .alleged in the statement of claim that during the lime the plaintiff was engaged by the defendants he used his own car to assist in the business and defendants agreed to provide the cost of maintaining and keeping 'the car in repair, but no allowance was made in this respect. The plaintiff claimed (a) £l5O as damages for wrongful dismissal and (b) £3O as damages for breach of contract to pay cost of maintenance of. the car.

Mr P. H. Watts represented plaintiff and Mr J. B. Johnson, of Auckland, the defendants. After outlining his case, Mr Watts, called the plaintiff, who stated that in July last he was engaged as foreman by Turnbull and Jones. He had been superintendent under the Hamilton Borough Council at the Frankton power house. He was afterwards in partnership and following that, just prior to this appointment plaintiff had an 'electrician's business of his own at Frankton. This business was paying handsomely. Plaintiff detailed a conversation with the former Hamilton manager of the defendant firm and the matters leading up to plaintiff's appointment to the position, after an interview with Mr Stephens, the Auckland manacer. Stephens stressed the point that the position would be a permanent one for at least 12 months and if at the end of the! time- ho made good lie would be shifted to a bigger centre where he could make more money. , The Motor Stocks. Plaintiff entered nn bis duties at Hamilton on July 28. In August they were hard pressed for 1-1 h.p. motors and on looking over a slock rtewlv arrived he found they were all 2 h.p. lie remarked [o Mr Herri ok, of the local office that they were going lo be in bad with the power boards because they could not carry oil) the jobs with jl h.p. motors. Horrific remarked that this could be got over by putting H h.p. name plates en 2 h.p. motors. Plaintiff was upS"t by 'this as he realised it was bound to re-act on him as manager. J'mrick' said he had written to Stephens and expressed plaintiff's attitude. That night plaintiff wrote lo Stephens and expressed his strongest disapproval i.-f , the practice.. Stephens ignored .'plaintiff's letter but wrote to l'"i'ri''k' setting out, among other things, according to plaintiff's statement from the witness box, that it '-v:is the custom for all electrical firms throughout New Zealand. The Manager Arrives. Mr Stephens did not come clown until the annual balance period about the end. of November. He came into plaintiff's .office when the subject of motors was broached by plaintiff. Stephens asked that (hey go down the garden path' and there they discussed the position fully. Stephens on the return trip stated that the best thing plaintiff could do was to put in his notice. In answer to a question by plaintiff as to the grounds, Stephens replied that it was a case of clear incompatibility, and he would be very pleased to give plaintiff good credentials. Stephens expressed his sorrow that the position had ever arisen. When plaintiff asked Stephens over the 'phone he refused to give .the credential on the ground that it might be used against him. Stephens said that if plaintiff would recede from the position their firm would lix up the car. give plaintiff a good credential and another month's salary. PlaintitT said be. would not do anything until he consulted his solicitors who advised him not' to resign. Plaintiff had-hot seen Stephens from that d,ay till the case came on. The only intimation he ever had that he was discharged was in a letter Herrick had from Stephens in which it vfas stated that Herrick would know by this that he (plaintiff) had been given a month's notice. Mr Johnston said that his clients had never received the letter of August. Mr Watts maintained that he was entitled to put it in. He pointed out that it was not said that Stephens received the letter, but what was material was that it would show plain...tiff's attitude over the position. Mr Johnston asked also that a letter to the local office be put in in which it was clearly stated that the head office were against the alteration. His Worship said that it could be put in in cross-examination. Mr Watts said that he had given notice to produce a number of letters dealing with the changing of the number plates. [lis friend apparently was not going to produce them and if the Court allowed lie would put in the copies. | Mr Johnston said he would first like to see them. Plaintiff, continuing, said that judging by the number plates in Hcrrlck's drawer, nearly 10fj motors must have been concerned. The harm principally ;was the loss of revenue to the power boards; £5 per h.p. on every motor. The other loss was the damaged power factor. The Central Board paid on a maximum demand indicator at Ruakura, which would mean that" the farmer would only pay for what he used as only the current used by the motor was registered on the farm meter. The wattless current, due to the motor being too large, was a dead loss to the board, plaintiff contended, as it did not register on the meter they sold on. After Mr Johnston had perused the copies of the letters dealing with the mqtors which had passed between Auckland and Hamilton, Mr Watts read them to the Court and put them in with other correspondence. Plaintiff Cross-Examined. Under cross-examination by M,r Johnston, plaintiff said that a 2 h.p. motor was not inferior in intrinsic value to a M h.p. motor, He doubled whether the Swedish machine would give the output asserted, but he had never tested it. Plaintiff asserted that he had a job for a year. He took it that he was to be the same as his predecessor, in charge of Hamilton and Te Awamutu branches. The letter of 'appointment, stated ■•foreman." It was correct that he had asked for the status of manager and it was declined until he had made good. Mr Johnston read the letters from plaintiff and the reply from the firm on this point. They were put in.

In answer to questions regarding his business prior to taking up this

appointment, plaintiff said he was on his own in business at Frankton for about four months. Prior to that he was in partnership with Messrs Copeland and Steele in contracts. It was not a fact that it was plaintiff's incompetence that caused the dissolution of the partnership. Plaintiff asserted that he bad not access to the file at Turnbull and Jones until the last month. Anything personal was put on bis desk. In dealing with a letter put in which complained of lack of business plaintiff said that it was due to plaintiff being laid up with sciatica and the further fact that tre requirements in the work had fallen off at the particular period. Plaintiff said that he was now employed with the Electric Construction Company as foreman at £230 per year. They had not enengaged him for a year and he would not expect a year's notice in those circumstances. It was not right to state that he took no part in the stock-taking but admitted that Herrick did the bulk of it. He was not present, when the stock-taking was on but he saw the stock sheets. The bulk of the stock-taking, plaintiff said, was done in the day time. He would be there for about a couple of hours during the period of stocktaking in five rights. Henry Francis Brown, manager of the Hamilton branch of the Electric Construction Company, who engaged Andrews as foreman in February or early March, said that he found him well able to conduct his duties. Business had shown an increase since Andrews joined and the latter had more responsibility than any previous foreman with the branch. He got out tenders for large contracts for the reason that he could see he was capable of handling it. No complaints bad been received and his work was in every way satisfactory. He did not consider the requirements of Turnbull and Jones' job would be any more exacting than the job with his firm. To Mr Johnston: Andrews booked orders as well as witness. Wiremen were paid Union wage. Andrews was being paid £5 40s per w 7 eck at present. When three months were up it was his intention to put Andrews on an improved salary. Alexander M. Bellamy, electrical inspector for the Borough, testified to the. efficiency of plaintiff's work. To Mr Johnston: He knew nothing about his capacity for getting new work. The Defence. Mr Johnston said that nis main defence was that the engagement was not for any lTxed term and that it was the custom for a foreman to be subject to dismissal at a week's notice and without cause requiring to be shown or in the case of a branch manager with a month's notice. It would also be endeavoured to be shown that plaintiff was not a suited man and that there had been a lot of loss in the business during his term.

Benjamin George Stephens, manager at Auckland for the defendant firm, detailed the conversation before the engagement of plaintiff. Defendant asked Andrews in a general way in regard to his experience and told him (hat the firm required a man with full knowledge of alternating current apparatus, including transformers, meters, etc. Andrews said he was f"Uy capable of dealing with those enquiries and that he had a larse amount, of electrical experience. He did not ask nor see references as he did not place much reliance on them. Witness mentioned the salary at £6 per week. Plaintiff demurred but offered no objection, witness's impression being that he would have taken £5 if it were offered. Witness wished him success and pointed out the future possibilities but purposely and carefully told, plaintiff that if he was not suitable he /would have no hesitation in asking for his resignation. Subsequently he had occasion to ask for his resignation for the main reason that business was falling off very seriously;, the turnover during plaintiff's appointment being slightly more than half compared with the returns for the corresponding period of the previoi, B year. There were question which plaintiff addressed to the staff which showed he had no intimate, knowledge of alternating current. There was a large amount of work going on in the district. Witness also had occasion to find fault with th c methods of office routine and plaintiff's neglect to take part in thc actual stock-taking. It was an accumulation of these matters which let to the step taken. Witness came to Hamilton to see plaintiff with regard to his dismissal, asking plaintiff point blank for his resignation. Plaintiff asked for the reason and was told that it was his absolute incompetence for the job which was the cause. Witness had no other -motive. It was costly matter changing a foreman because the firm got out of touch with its clients, thc thread of thc jobs was lost, and it was expensive for a new man to pick up negotiations again. Plaintiff continued with the firm for about six weeks after this. Motors and Temperature Rating.

The witness, continuing, said there was no objection, so far as he remembered, from Andrews in regard to the changing of the plalcs on thc motors. He had never seen the letter (undated) referred to by Mr Watts and there was no conversation in regard to the subject.

The firm's position was a perfectly open one, the ■•witness added. Motors were manufactured to different standard, viz.. a 50 degree and 40 degree ccnti-gradc. A 40 dog. motor was very often in demand because of its greater factor of safety and most Continental and American makes of motor were sold under the two temperature ratings with two different horse power ratings. The motor they sold in the Waikato and would continue to sell, at 50 deg. centirating developed 2 h.p, with a temperature of 50 degrees. At a 40 deg. centi-grade rating the motor was rated at 1,6 h.p. Their principals did not manufacture a 50 dog. motor of 12 h.p. but they suggested to defendants and gave them full authority to use the same frame for I.G h.p. at 40 deg. centi-grade. They intended to carry on the process in which there was nothing fraudulent. If such was the case the firm would not undertake it. A Parkinson motor could not be similarly treated because it was already rated at 40 degrees centigrade. The witness added that there had never been any complaint from anyone where these motors were installed. These motors were on exactly the same rating as the Parkinson's l\ h.p. The Swedish and American motors were manufactured on a system of standardisation with a view to that adjustment. There was, no mention of the motors at the interview leading up to plaintiff's dismissal, plaintiff had with witness there was ever made any protest in regard to the motors. At the first interview plaintiff had with witness there was nothing said about an engagement for a, year. Some Further Points. In cross-examination by Mr Walts, the witness maintained that plaintiff was responsible for the loss- Of turnover to the linn. lie assumed that on the volume of work available in the Waikato and the returns from the branch. When pressed, the witness answered that all he knew was that the work fell off and there was no justified reason for it. He did not

think plaintiff's tendering was far wrong. In two instances out of about fifty there wis a loss on contracts during plaintiff's term, but the loss on those was not sufficient to make the average bad. There was always a lot of competition for contracts. The loss on contracts was one of the complaints, but was not the. basis of dismissal at all. When questioned in regard to alternating current, apparatus witness maintained that plaintiff knew little about it. Witness added thai Mr Brown had not had lime to become aware of plaintiff's capabilities or otherwise. The first complaint he made to plaintiff was in November in a letter which drew plaintiff's attention to the fact that the work of two or the prominent concerns in the Waikato was not going lo the firm. Work was obtained from 1 these concerns after plaintiff's dismissal. Witness was quite convinced that plaintiff had given of bis best while on the job. He certainly thought, that the stand taken by plaintiff in regard to the motor showed his ignorance of electrical matters. The Parkinson was a 40 degree motor thc same as thc A.S.E.A. The Government's Charge. He was aware that the Government made a charge per h.p. arrived at from thc name plate of the motor. The Government accepted the 40 degree rating. The firm had no arrangement with thc Power Board about the alteration, nor had the flrrm told them. They did not require to. if the facts were put before thc Power Board they, would have no cause iov comnlaint. WiOness pointed out that he had endeavoured to call the Power Board and Public Works engineers but they were out of town. He maintained that there had been no mention of this matter between plaintiff and himself and he did not see what it had to do with the case. The witness added in answer to his counsel that the universal custom with a foreman was one week and with a branch manager one month when notice of dismissal was being ffiven. To the Court: The witness said that thc next shipment of Swedish motors was coming stamped 1* h.p. It was this identical motor. They had acted with the absolute authority of the manufacturers in regard to the name plate. The difficulty was that the power boards in the beginning did not know definitely what power a milking machine would take to drive. They first of all insisted upon a 3 h.p. motor. Later they found that a 2 h.p. motor was suitable and, later again, that in some instances a li h.p. would meet the requirements. Thomas Steele, electrician of 25 years' experience, who was in partnership with plaintiff and one Copeland at one stage, expressed the opinion that plaintiff was not a competent man and this had a fair amount to do with the dissolution which came about in the partnership. The witness agreed with Stephens' evidence in regard to the effect of the change of motors. To Mr Watts: The partnership with Andrews and Copeland covered only one contract. Every man was entitled to his own opinion and he maintained that plaintiff was incompetent. What Custom ShowsMr Johnston then put in evidence which was taken in Auckland • from J. A. Allen, T. S. Proctor and A. Burt, representatives of electrical firms, as to the custom in regard to notice in the electrical line between employer and employee. A competent foreman could earn between £6 and £7 per week during the past twelve months, it was stated in this evidence. Counsel agreed that it would be better to have the point cleared up in regard to the motors by having the opinion of an authority. Mr Watts held that it should be the Central Board's engineer which board's territory was concerned. Mr Johnston pointed out that he was not aware this matter was coming up in the action. Mr Watts replied that he gave his friend notice to produce all thc letters and he thought by that he would know the position. Mr Johnston said that he did not infer that Mr Watts had kept the position back. Mr Stephens (recalled by the Magistrate) said the firm changed the plates on the motors because it was impossible to get a ih. h.p. motor on a 50 dog. rating from their principals. The power board's specifications called for a certain number of 2 h.p. motors and a certain number of I>V h.p. motors. The firm supplied the some motor. Manufacturers' data lists (which had been put into the court) the witness maintained made the position perfectly clear. The only difference in the motors was the plate. The firm paid the same price for each motor. The witness said he .wished it made perfectly clear that the firm made no gain; they, in fact, were losers by the transaction. After counsel's addresses the Court adjourned until the morning, to enable further evidence to be taken in regard to the motors.