Scottish Court of Session Decisions

Alexander Grant junior, apprentice shipwright, Leith, with consent of his father as his curator-at-law, raised an action in the Sheriff Court at Leith against Messrs Ramage & Ferguson, Limited, engineers and shipbuilders, Leith, in which he prayed the Court “to ordain the defenders to grant and deliver to the pursuer a certificate of service in usual and customary form, stating the time during which the pursuer was in their employment as an apprentice shipwright.”

The pursuer averred—“(Cond. 1) The defenders are engineers and shipbuilders in Leith, and the pursuer entered their employment as an apprentice shipwright on or about 3rd July 1894. No indenture or written agreement was entered into between the parties, such not being usual or customary in the trade in the case of shipwrights' apprentices. (Cond. 2) The pursuer continued in the defenders' employment as an apprentice shipwright from 3rd July 1894 down to 6th August 1897, when, as after condescended on, he was dismissed from their service. … (Cond. 3) On 29th July 1897 work in the defenders' yard was stopped at twelve o'clock noon for the trades holidays, which ended at 9 a.m. on the following Wednesday (4th August), the pursuer, along with a number of other apprentice shipwrights, resuming work at 6 a.m. on the morning of Friday 6th August. About 11:30 a.m. in the forenoon of that day the pursuer, who was then engaged working at his own trade in defenders' yard, was, along with certain other apprentice shipwrights, ordered by his foreman to go and do ordinary labourers' work under the labourers' foreman. The pursuer and other apprentices foresaid refused to do this, such work being outwith the scope of their employment with the defenders, there being, moreover, plenty of work to be done in their own trade. Thereafter a deputation of apprentices, including the pursuer, waited upon Mr Alexander Ramage, the manager of the yard, who ordered them outside the gates unless they consented to be employed at the labourers' work aforesaid. Accordingly the pursuer and the other apprentices left the yard. Upon the following Monday (9th August) the pursuer and several of the other apprentices again waited on Mr Alexander Ramage, when they were told that those who had refused to obey his orders on the preceding Friday were to hold themselves dismissed. Upon the next day, accordingly, the pursuer and the other apprentices referred to lifted their tools, and subsequently received the wages due to them. The defenders, however, refused to grant them certificates of service. (Cond. 4) According to the custom and practice of the trade, the term of service for an apprentice shipwright is five years, the wages given varying from 8s. to 13s. per week, according to the number of years of service. Any off-time, or time during which work is ‘suspended,’ is made up by the apprentice before the apprenticeship is completed. As a general rule, also, no notice to terminate the apprenticeship during its currency is given or required on either side. According to said custom and practice, the apprentice is, upon fulfilment of his terms of service, entitled to obtain from his employer, and the employer is bound to grant to the apprentice, a certificate of completed service which enables him to apply to the Shipwrights' Society or to employers of labour for an engagement as a journeyman. Similarly, in the event of the apprenticeship being interrupted during its currency by the apprentice being paid off, by his dismissal, or by any cause due to the action of the employer, the apprentice is entitled to obtain, and the employer is bound to grant, a certificate of service stating the period of apprenticeship which he has served with that employer. Such a certificate is necessary in order to enable an apprentice with an uncompleted term of service to obtain another situation in the trade, and to complete his

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apprenticeship with another employer. Without such a certificate an apprentice would be compelled to run the entire period of apprenticeship de novo. (Cond. 5) The defenders have been requested, but have refused, to grant and deliver to the pursuer the usual and customary certificate of service, and the present action to have them ordained to do so has thus been rendered necessary. In the event of the defenders' continued refusal to grant such a certificate, the pursuer, as above explained, will be unable to obtain another situation in the trade, or to complete his term of apprenticeship, and will be compelled to serve a new term of apprenticeship. This will entail upon the pursuer a loss of time of over three years.” …

The pursuer pleaded, inter alia—“(1) The defenders being bound, in accordance with the custom and practice of the trade, to grant and deliver to the pursuer a certificate of service as condescended on, the pursuer is entitled to decree in terms of the first conclusion of the petition.”

The defenders pleaded, inter alia— “(1) The action is irrelevant.”

On 18th October 1897 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor:—“Sustains the first plea-in-law for the defenders, dismisses the action, and decerns.”

Note.—“The Sheriff-Substitute is unable to sustain the relevancy of this action. By the law of Scotland a contract of apprenticeship, which is the contract here alleged and founded on, can only be constituted by writing. It is admitted, however, on the part of the pursuer that ‘no indenture or written agreement was entered into between the parties.’ Further, the contract set forth in the fourth article of the condescendence is wanting in the characteristics essential to a contract of apprenticeship, and must be regarded as one of service merely. Under such a contract a master is not bound to give his servant a character. Consequently he cannot he compelled to grant a certificate in the terms demanded by the pursuer.”

The pursuer appealed, and argued—The action was relevant. The Sheriff-Substitute had dismissed the action on the ground that the pursuer was an apprentice, and that an apprentice must have a written indenture. But it was an unfair reading of the record, and contrary to the express averments in condescendence 1, to hold that he had averred that he was an apprentice requiring an indenture. What he had averred on record amounted to this, that he was a workman called an “apprentice shipwright” by the usage of trade. His contract was not a contract of indenture but a contract of service, with certain conditions imported into it founded on the usage and understanding of the trade. Such a contract was perfectly legal, and had been recognised in Hamilton v. Outram, June 5, 1855, 17 D. 798, opinion of Lord Deas, p. 800. It was a contract made in the ordinary course of trade, and incorporated the usage and custom of the trade to which it related.—Bell's Comm. 7th ed., i. 457, 465. One of these conditions was that the master was bound to grant a certificate of service to the apprentice shipwright on dismissing him. The master had unjustifiably dismissed the pursuer in the present case because he had refused to do work without the scope of his employment. The pursuer was therefore entitled to a proof.

Argued for defenders—The action was irrelevant, and the interlocutor of the Sheriff should be affirmed, because (1) the contract set forth on record was one of apprenticeship, and a contract of apprenticeship must be based on writing; and (2) even if there were such a custom, it was not enforceable at law, but an imperfect obligation like the obligation to grant a character to a servant— Fell v. Lord Ashburton, December 12, 1809, F.C. Further, it was not averred on record that the custom was known to both parties or that the custom formed any part of the contract.