[1955] EACA 274

## APPELLATE CRIMINAL

Before Sir Kenneth O'Connor. C. J. and Rudd. J.

## THE ATTORNEY-GENERAL, Appellant

## DHAYABHAI FAKIRBHAI PATEL, Respondent

Criminal Appeal No. 271 of 1955, Case Stated.

Criminal law—Wages Regulation and Conditions of Employment Ordinance. 1951, section 12 (2)—Alleged failure to provide employee with leave with full pay-Wages Regulation (Tailoring, Garment-making and Associated Trades) Order, 1955—Part III, 4 (1)—Piece-worker—Whether employee— Whether employed on continuous service—Meaning of "full pay".

An employer engaged in the tailoring trade engaged a tailor, by agreement, to do piece-work. In the course of a year's employment the employee, without reference to the employer, chose to be absent some two days in each month. At the end of the year the tailor asked for 12 days' leave on full pay in terms of the Wages Regulation (Tailoring, Garment-making and Associated Trades) Order, 1955, Part III, paragraph 4, which runs:-

(1) After 12 months' continuous service with an employer an employee shall be entitled to one day's leave with full pay for each completed month. of service."

The employer refused to pay and was charged with an offence contrary to section 12 (2) of the Wages Regulation and Conditions of Employment Ordinance, 1951. The acting resident magistrate at Mombasa, having acquitted the accused, was required by the Attorney-General to state a case. The Crown posed three questions upon the construction of the paragraph:-

"(1) Was the service continuous? (2) Was the piece-worker an employee? (3) If the answers to (1) and (2) are 'Yes', is there any reason why the. section should not apply to the facts in the case?" The Court considered that a fourth question also required an answer, viz: "What is 'full pay' under paragraph 4 $(1)$ ?"

Held (23-9-55).-(1) The tailor was under the direction of the employer as to the manner in which the piece-work was to be performed and was not therefore an independent<br>contractor, but an employee within the ordinary meaning of that word.

(2) "Continuous service" is not the same thing as a continuing offer to accept and pay for service. It is necessary to look at the service which was rendered and see whether or not it was uninterrupted and without a break. The employee considered himself<br>entitled to take and did take, when he chose, a day off without prior reference to his plainer language in the Order would be required before service of this sort could be held to be continuous.

(3) A minimum time rate of pay is not, when an employee is earning more than the minimum rate, in ordinary parlance."full pay"...

(4) Paragraph 4 (1) of Part III of the Order cannot reasonably be applied to a piece-worker whose terms of employment do not provide for continuous service and who, in fact, works intermittently and who earns more than the provisions could only be applied (if they could be applied at all) to such a case by a and "full pay". The provision was a penal one and when the legislature intends the infliction of suffering or an encroachment on natural liberty or rights it is unquestionably

a reasonable expectation that it will not leave its intention to be gathered by mere doubtful inference or, convey it in cloudy or dark words only, but will manifest it by<br>reasonable clearness. Even if paragraph 4 (1) could apply to the case of the piece-<br>worker the Court would feel constrained to hold tha a provision room for an honest opinion that the sub-paragraph did not apply and that the employer had shown no mens rea.

The Court held that no offence had been committed.

Authority cited: Maxwell on Statutes, 10th edn., p. 263.

Havers, Crown Counsel, for the Crown.

De Souza for respondent.

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JUDGMENT.—This is a case stated by the acting resident magistrate. Mombasa, under section 375 of the Criminal Procedure Code. It arises out of Mombasa Criminal Case No. 3664 of 1955 in which one Dhayabhai Fakirbhai Patel was prosecuted, at the instance of the labour officer, Mombasa, for an alleged breach of section 12 (2) of the Wages Regulation and Conditions of Employment Ordinance (Ordinance No. 1 of 1951) (hereinafter called "the Ordinance") in failing to provide an employee with his entitlement of one day's leave with full pay for each completed month of service in accordance with Government Notice No. 419/55, Part III, section 4 (1). The particulars of the charge were: —

"That he, D. F. Patel did on the 14th April, 1955 at Mombasa in the Coast Province refuse to pay on demand by Raab Saidi, employed by him as piece-worker, the said Raab Saidi one day's leave pay for each completed month of continuous service during the period from the 1st April, 1954 to 31st March, 1955. The sum total demanded in that respect being Sh. 120/02."

Section 12 (2) of the Ordinance reads as follows: -

"If an employer fails to pay to an employee to whom a wages regulation." order applies remuneration not less than the statutory minimum remuneration, or fails to provide any such employee with the conditions of employment prescribed in the order, he shall be guilty of an offence and liable to a fine not exceeding four hundred shillings for each offence, and where the employer or any other person charged as a person to whose act or default the offence was due has been found guilty of an offence under this section consisting of a failure to pay remuneration not less than the statutory minimum remuneration, the court may order the employer to pay such sum as is found by the court to represent the difference between the amount which ought to have been paid to the employee by way of remuneration, if the provisions of this part of this Ordinance had been complied with, and the amount actually so paid."

The accused is a tailor and general merchant. The facts as found by the acting resident magistrate were:-

"P. W.3 (i.e. Raab Saidi) worked for accused for a time as a machinist at Sh. 150 per month, Sh. 9 per month above the minimum wage fixed by Wages Council Notice T. G. M. T. (9) of 31-3-55. As he was frequently absent it was agreed that he should do piece-work as from 1-4-54.

When he had worked thus for a year, and by doing so had averaged Sh. 255 per month (Vide Ex. 1), he asked for 12 days' leave on full pay in the terms of Part III (4) of the above-quoted notice, arguing that, although $\frac{1}{2}$ paid in accordance with the amount of work done, his service was continuous. P. W.3 himself stated that he used to take a day off a month, and accused

shows in Ex. A that P. W.3 was absent on 80 days in the period, including Sundays and Bank Holidays, i.e. actually absent for some 20 days or perhaps two days a month.'

The acting resident magistrate acquitted the accused, holding that it was impossible, under G. N. 419/55, the Wages Regulation (Tailoring, Garment-making and Associated Trades) Order, 1955 (hereinafter called "the Order"), to say what was the "full pay" of a piece-worker. He also doubted whether Raab Saidi's service had been shown to be "continuous" with paragraph 4 (1) of Part III of the Order.

The Order was made under powers conferred by the Ordinance and came into effect on the 1st April, 1955. There is no provision purporting to give it retrospective effect and it would seem at least doubtful whether the leave entitlement which it purported to confer after 12 months' continuous service with an employer could be earned by service before the date of the coming into operation of the Order. However, the Wages Regulation (Bespoke Tailoring for Men and Boys) Order, 1953 (G. N. 996 of 1953) (which was revoked by the Order) had contained a provision relating to annual leave similar to paragraph 4 of Part III of the Order.

It was argued that the entitlement to leave accrued due under the revoked Order could be claimed under the Order, notwithstanding that there are no express words in the Order preserving such entitlements. This point is not one of those raised by the Case Stated for the opinion of the Court and we, accordingly, express no opinion upon it.

The relevant portions of the Order to which our attention has been drawn are as under:-

Section 2: "The remuneration to be paid and the conditions of employment to be provided to and for all employees engaged in the tailoring, garment-making and associated trades, as defined in the schedule to this Order, shall not be less favourable than the remuneration and conditions respectively specified in the said schedule".

There is a definition in the schedule of "Bespoke Tailoring (Men and Boys) Trade" which would include the accused's business. The minimum rates of basic wages for various classes of worker in the Bespoke Tailoring (Men and Boys) Trade, calculated in shillings per month, are set out in Part II of the Order. Paragraph viii of that part provides as follows: -

"(viii) Proportionate Rates of Pay. Remuneration otherwise than at monthly rates of wages shall not be less than proportionate to the basic minimum rates herein prescribed: provided that daily rates of wages shall be calculated at not less than one twenty-fourth of the basic monthly minimum rates herein prescribed."

Paragraph (ix) of Part II, reads as follows: $-$

"(ix) Piece- or Task-work. No person engaged at piece-work rates or on task-work shall receive less than would be earned if such person were employed at the appropriate time rate of pay."

This last, is, so far as we are aware, the only provision in the Order which expressly mentions piece-work.

Paragraph 4 (1) of Part III of the Order is the provision which the accused was alleged to have contravened. It is as under: -

"4. Annual Leave. (1) After 12 months' continuous service with an employer an employee shall be entitled to one day's leave with full pay for each completed month of service."

Mr. Havers, for the Crown, posed three questions on this paragraph: —

$(1)$ Was the service continuous?

(2) Was Raab Saidi an employee?

(3) If the answers to (1) and (2) are "Yes", is there any reason why the $(3)$ section should not apply to the facts of this case?

Mr. Havers argued that if the answers to $(1)$ and $(2)$ are in the affirmative, and the answer to $(3)$ in the negative, the accused was guilty and should have been convicted.

We think that there is a fourth question which also requires an answer—the question which mainly troubled the magistrate, viz.:-

(4) What is "full pay" under paragraph 4 $(1)$ ?

It will be convenient, first, to answer question (2) above.

Mr. Havers argued that the Labour Ordinance, Cap. 109, was in pari materia with the Ordinance, and that, therefore, the definitions of "employee" and "piece-work" contained in the Labour Ordinance should apply to the construction of the Order. We think that this is at least doubtful. If it had been intended that expressions used in an Order made under the Wages Regulations and Conditions of Employment Ordinance should bear the same special and restricted meanings as similar expressions used under the Labour Ordinance, we should have expected that to be stated in Part I of the Order which deals with the subject of definitions at length. Moreover, if, as suggested, we were to apply to the Order the definition of "employee" in the Labour Ordinance, we doubt whether Raab Saidi would come within it. We find it unnecessary to invoke the Labour Ordinance because we are satisfied that Raab Saidi was an employee of D. F. Patel within the ordinary meaning of that word. He was employed by D. F. Patel to do pièce-work. He was under the direction of D. F. Patel as to the manner in which the work was to be performed and was not, therefore, an independent contractor. We think he was an employee of D. F. Patel. Paragraph (ix) of Part II of the Order (supra) applies to persons engaged on piece-work and we have no doubt that that provision applies to Raab Saidi.

If on every other ground we thought that paragraph 4 (1) of Part III could apply to Raab Saidi, we should have no difficulty in holding that he was an employee or that D. F. Patel was his employer. There are, however, formidable obstacles to holding that paragraph 4 (1) has any application to Raab Saidi.

We now turn to the first of the questions posed by Mr. Havers: Was Raab Saidi's service continuous, within the meaning of "continuous service" under paragraph 4 (1) of Part III? Mr. Havers submitted that service is continuous so long as the employer continues ready to give the employee work and to pay him whenever he attends. We do not think that this is correct, "continuous service" is not the same thing as a continuing offer to accept service and pay for it. One must look at the service which was rendered and see whether or not it was uninterrupted and without a break. For instance, an employee on piece-work could not, we think, be said to render six months' continuous service if, say, he attended every working day in January and June, but only for half of February, one week in March and not at all in May. Yet the employer might have remained willing to employ him on every working day throughout the period had he presented himself for service. In the instant case, Raab Saidi used to take, and clearly considered himself entitled to take, a day off when he chose, remaining away sometimes for six or eight odd days in a month; in fact he failed to attend on twenty working days during the year, apparently without prior reference to D. F. Patel or any reason such as ill health. We are unable to hold that that constituted "continuous service" within paragraph 4 (1) of Part III. If we were so to hold where is the line to be drawn? Would it be right, for instance, to say that a piece-worker, the terms of whose employment permit him to attend or not, and work or not, at his option, and who attends and works for say three months regularly, and, thereafter, for only one day in a month for nine months, is entitled to twelve days' leave "with full pay" at the expense of an employer for whom he has worked only for three months and nine days in the year? We should require very much plainer language than we find in this Order before we imputed any such intention to the Minister.

And what is "full pay" in the case of a piece-worker in Raab Saidi's position. Mr. Havers first argued that "full pay" meant the average of the piece-worker's monthly earnings for the preceding twelve months. Later, he (very rightly) resiled from this position, for which we know of no authority, and which involves obvious difficulties, and argued that, inasmuch as para. (ix) of Part II of the Order provided that a piece-worker should not receive less than the appropriate timerate of pay, the appropriate time-rate must be his leave pay. It is only necessary to observe that a minimum rate of pay is not, when a man is earning more<br>than the minimum rate, in ordinary parlance "full pay", and that the sum mentioned in the charge as having been demanded is not arrived at by either of these methods of computation.

When one examines Part III of the Order to see the context in which paragraph 4 occurs, it is difficult to see how any of the provisions of that part apply to piece-workers whose terms of service allow them to attend and work or not as they wish and who work intermittently.

Paragraph 1 provides that a normal working week shall consist of 45 hours of work spread over six days. Clearly that would not apply to a piece-worker who can work when he likes and refrain when he likes, and does so.

Paragraph 2 deals with payment for overtime, which again would not ordinarily apply to piece-workers.

Paragraph 6 provides for payment of a house allowance in respect of each calendar month's service in addition to the basic wage prescribed by the Wages Regulations (General) Order for the area. It is hard to see how this could apply to a piece-worker who works intermittently and does not draw a basic wage.

Paragraph 5 provides an entitlement to sick-leave with full pay up to a maximum of 15 days in each period of 12 months' continuous service. The same difficulties arise in construing the expressions "continuous service" and "full pay" in relation to a piece-worker who works intermittently and earns more than the time-rate of pay, as arise in construing these expressions when they occur in paragraph $4$ .

We are of opinion that paragraph 4 (1) cannot be reasonably applied to a piece-worker whose terms of employment do not provide for continuous service, who, in fact, works intermittently and who earns more than the time-rate of pay. The provisions of the sub-paragraph are perfectly clear when construed in relation to employees on monthly, weekly or daily wages. Those provisions can only be applied (if they can be applied at all) to a piece-worker, who works intermittently and earns more than the time-rate) by a forced, artificial and highly doubtful construction of the expressions "continuous service" and "full pay". This is a penal provision and "it is unquestionably a reasonable expectation that when the legislature intends the infliction of suffering, or an encroachment on natural liberty or rights ... it will not leave its intention to be gathered by mere doubtful inference or convey it in 'cloudy and dark words' only, but will manifest

it with reasonable clearness". (4 Inst. 332 cited in *Maxwell on Statutes*, 10th edn. -at page 263.) Even if we thought that paragraph 4 (1) could apply to Raab Saidi's case, we should feel disposed to hold that there was in relation to so obscure a provision, room for an honest opinion that the sub-paragraph did not apply to him, and that no *mens rea* had been shown. But we are of opinion that paragraph 4 (1) does not apply to the circumstances of the instant case. $\frac{1}{2}$

We, therefore, answer the question asked by the Case Stated in the affirmative. and hold that the magistrate was right in holding that no offence under section 12 (2) of the Ordinance was disclosed, for the reason that the conditions of employment relating to annual leave with full pay contained in the Order did not apply to this particular case.

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