by a notice given at or before the expiration of the first fortnight is not such a well-established custom that the Courts will take judicial notice of it. Its existence must therefore be proved in each particular case in which the custom is relied on.
2. Without notice.—Even if the reason originally given for the servant's dismissal subsequently proves to have been insufficient, the master may nevertheless justify the dismissal if a good and valid reason, in fact, existed, though he was not at the time aware of it. If the servant is dismissed for good cause, or leaves without notice in the middle of a month, he is not entitled to any wages for the broken period subsequent to the last monthly pay day; but he is, of course, entitled to his wages for any completed month of service if such have not been paid. Where a servant receives as his wages so much a year in money and a suit of clothes, he is not entitled to keep the clothes if dismissed before the end of the current year. But if he has been wrongfully dismissed, the loss of the clothes will be taken into consideration in assessing the damages due to him.
By mutual agreement.—Where the service is thus terminated, the law will not imply any agreement to pay wages in respect to services rendered between the last day on which wages became due and the day on which the engagement was put an end to. It would, however, require very little evidence to show that the wages for the broken period were in fact payable either by implied agreement or by custom.
By death.—The contract of service is determined at once by the death of the master. If the legal representative or the head of the household allows the servant to stay on, and either expressly or impliedly accepts his services, a new engagement will be presumed. The servant is only entitled to any wages actually due, but a month's wages, as from the date of death, is usually given. Where the servant dies, his representatives, it appears, are entitled by custom, to wages for the broken period between the last pay day and the date of death.
Reasons for Dismissal without Notice.
I. Where the Cause Arises During the Course of Service.
Wilful disobedience of a lawful order.—It is not every trifling act of disobedience that will justify a dismissal without notice; and in one case it was held that a refusal to obey a lawful order to fetch some books did not justify such a course when the master, by his language and conduct, had provoked a quarrel, and the servant had, in fact, obeyed shortly after it was over.
Misconduct.—Theft or embezzlement of the master's property.—Where a servant is suspected of such offence there is no right to search his boxes without a warrant from a magistrate; Drunkenness, either habitual, or on one occasion only, if such as to render the servant incapable of performing his duties; Insolence, either habitual, or on one occasion only, if sufficiently gross,—an isolated instance of want of respect or ill-temper would not be sufficient; Violent conduct, tending to disturb the family,—removal by force, if necessary, may be resorted to;[1] Immorality; Sleeping out at night. The misconduct need not necessarily occur in the actual performance of his service: for a servant is not entitled to flagrantly misconduct himself on holidays or Sundays or at other spare times.
Negligence.—If habitual or of a gross character.
Illness.—The mere temporary illness of a servant will not justify the master in putting an end to the engagement at once. It is otherwise where the illness is a permanent one, or one which from its nature is likely to (or, as a matter of fact does) last for a considerable time. In such cases the servant must be dismissed in distinct terms, and his wages paid up to date of dismissal. If nothing be said, and the servant be allowed to go into hospital,
- ↑ See note 3 on previous page.
