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, paragiaph 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 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 entitled to take and did take, when he chose, a day off without prior reference to his employer and had failed to attend on 20 working days during the year. Very much 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 time-rate of pay. The provisions could only be applied (if they could be applied at all) to such a case by a forced, artificial and highly doubtful construction of the expressions "continuous service" 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 reasonable cleartiess. Even if paragraph 4 (1) could apply to the case of the pieceworker the Court would feel constrained to hold that there was in relation to so obscure 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.
Dc Souza for respondent.
