Kelly v Irish Sugar Company (No. 1) [Supreme Court.]
| Jurisdiction | Ireland |
| Judgment Date | 26 May 1941 |
| Date | 26 May 1941 |
| Court | Supreme Court |
Supreme Court.
Workmen's Compensation - Compensation - Basis of assessment - "Average weekly earnings" - Computation of - "Rate per week at which the workman was being remunerated" - Shortness of time during which workman employed - Whether practicable at date of accident to compute rate of remuneration - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 21,and Third Schedule.
Appeal by the respondents, the Irish Sugar Co. Ltd., from an order of the Circuit Court Judge (Judge Sealy), dated the 24th November, 1940, awarding compensation under the Workmen's Compensation Act, 1934, at the rate of £1 10s. per week, to the applicant, Thomas Kelly.
The following statement of facts is taken from the judgment of the Chief Justice:—
"On the 22nd April, 1940, the respondent, while in the employment of the appellants, sustained personal injury as the result of an accident arising out of and in the course of his employment. On the 19th July, 1940, he obtained in the Circuit Court an award of £1 6s. 7d. per week as compensation for total incapacity resulting from that injury.
On appeal to this Court the finding of total incapacity on which the award was based was affirmed, but the award of compensation was discharged on the ground that the compensation had not been determined in accordance with the Workmen's Compensation Act, 1934, and the proceedings were remitted to the Circuit Court to have the compensation determined.
On the 11th December, 1940, the learned Circuit Court Judge re-heard the case and awarded compensation of £1 10s. 0d. per week. From that award the appellants have brought this appeal, the ground of the appeal being that the learned Judge misdirected himself in matters of law in determining the compensation awarded.
The evidence established that the appellants have a permanent staff of about 120 men who are employed throughout the entire year. In addition to their permanent staff the appellants in the month of October in each year find it necessary to take into their employment about 600 men, unskilled labourers, whose services are required for a period of approximately three months. At the end of that period, referred to by the witnesses as the 'Winter Campaign' most of these men are discharged. They might be re-employed in the following October when the next 'Winter Campaign' started, but the appellants were not bound to re-employ any of them. While in the employment they were paid at the rate of one shilling per hour for a 56-hour week and they were liable to be dismissed on one week's notice. During the 'Winter Campaigns' the appellants' factory is engaged in the manufacture of sugar from beet.
In the month of April, 1940, owing to national emergency, it undertook the work of refining cane sugar, and this necessitated the employment of about 280 men in addition to the permanent staff. These men were employed for a period of about 6 weeks (15th April to 1st June), referred to in the evidence as the 'Supplemental Campaign,' at the end of which time most of them were discharged. The terms' of the employment were the same as in the 'Winter Campaign.'
The respondent, an unskilled labourer, had been employed by the appellants during several 'Winter Campaigns.' In the interval between the end of one 'Campaign' and the beginning of the next some nine months later he did odd jobs of carting or farm work or of work on the roads for the County Council. He had worked on the 'Winter Campaign' from the 1st November, 1939, to the 10th January, 1940, when that 'Campaign' ended and he was discharged.
Between the date of his discharge and the 21st April, 1940, he did odd jobs of work of the nature that I have described. On that day he was re-employed by the appellants for the work of the 'Supplemental Campaign' on the terms I have previously stated. He worked that day and part of the following day—a shift and a half— day until he met with the accident which has resulted in his total incapacity. His earnings for that work were twelve shillings, which were duly paid to him, and his employment with the appellants terminated.
The learned Circuit Court Judge held that during the period between the 10th January, 1940, when the 'Winter Campaign' ended, and the 21st April, 1940, when the respondent was employed for the Supplemental Campaign, the respondent was not in the employment of the appellants; and, accordingly, that in determining the average weekly earnings of the respondent while in the employment of the appellants his earnings during the 'Winter Campaign' could not be taken into account.
He further held that as the respondent was engaged for the 'Supplemental Campaign' at a wage of 56 shillings per week and was entitled to one week's notice of dismissal, there was no difficulty in ascertaining the rate per week at which the respondent was being remunerated, and that the rate per week of remuneration should be regarded as his average weekly earnings. He found that the average weekly earnings of the respondent were £2 16s. 0d., and on that basis he awarded as compensation a weekly sum of £1 10s. 0d.."
At the first hearing of the application for compensation, the Circuit Court Judge had computed the average weekly earnings of the applicant by taking the actual earnings for the weeks he had worked and adding the potential earnings for the rest of the year: when so calculated, the applicant's average weekly earnings were 35s. per week.
At the second hearing the Circuit Court Judge held that the average weekly earnings of the applicant were 56s. a week and awarded compensation at the rate of 30s. per week, as stated in the judgment of the Chief Justice.
The material portion of the judgment of the Circuit Court Judge were as follows:—
"I think the terms of the applicant's employment were that he was getting a shilling an hour for a fifty-six hour week and that he would be entitled to a week's notice. His ordinary employment with the company, which would be what is known here as the 'Campaign' was seasonal: it started every year about the end of October or the beginning of November and lasted for an indefinite period —but about three months was the usual time. The terms of that employment were the same as the terms of the 'Supplemental Campaign,' one shilling per hour for a fifty-six hour week, and, in addition to that, there were extras in the shape of a bonus and double pay for Christmas Day and St. Stephen's Day. That sort of work would, in my opinion come under the description 'seasonal.'
I would infer that the nature of his employment was temporary to some extent. In point of fact, according to the evidence, one man in similar employment worked for a period of six and a half weeks. At the time the 'Campaign' started, these men were employed, subject to the ordinary week's notice, at a wage of 56s. per week; on the second day the applicant sustained an injury for which he now seeks compensation.
I am now asked to hold that it was impracticable owing to the shortness of time to fix the average weekly earnings and that I should have regard to s. 21, clause b, of the Act: that is where the crux of the case comes in. This section and the Schedule have always been a great difficulty to me: I confess I could not get a clear view of what they meant and I never could apply them to the Sugar Factory here in Carlow. I also have to confess that I think I was trying to make law myself or trying to clarify what was stated in the Act by working out a scheme. I divided the amount of money they earned, together with anything they might earn for the previous twelve months outside the Beet Factory by 52. Now I am pushed to decide according to the Act. The dominant note seems to be to try to ascertain the rate per week at which the workman was being remunerated. That is a thing of extraordinary simplicity if he was engaged at 56s. per week. A number of the cases referred to, however, seem to draw me back to the twelve months preceding the accident.
This man had a fixed contract. He was to get fifty-six shillings per week from the time he was employed. The dominant note of the section being to find out the rate per week at which the workman was being remunerated, why should I go beyond the fixed contract of fifty-six shillings per week? I have sufficient there to ascertain what remuneration he had per week. There is nothing in the Act about temporary employment like the case of the Sugar factory, where the period of employment is admittedly about three months. Must you then go to the twelve months previous in a case like that? All the cases that Mr. McCarthy referred to seem to deal, as Mr. O'Hanrahan says, with a class of case where the workman is in the employment of the respondents all the time, where there are breaks according to custom in England and an arrangement was made of a spread-over. In none of these cases is the workman let go. It is not a case of being dismissed and being re-engaged: the men are all permanent employees of the respondents."
The respondents appealed to the Supreme Court on the grounds: 1. That the learned Judge misdirected himself in law in holding that the pre-accident average weekly earnings of the applicant were 56s. 2. That the manner in which the learned Judge computed the average weekly earnings of the applicant was not the manner best calculated to give the rate per week at which the said applicant was being remunerated. 3. That the learned Judge misdirected himself in law in holding that it was practicable at the date of the accident to compute the remuneration of the said applicant. 4. That the learned Judge misdirected himself in law in computing the rate of remuneration of the applicant in not having regard to the average weekly amount which during the twelve...
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