Nawaikula v Tropik Wood Industries Ltd [1995] FJHC 154; HBC0100.1993 (13 October 1995)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)

CIVIL ACTION NO.: HBC0100/1993

BETWEEN:

INOSI NAWAIKALOU
PLAINTIFF

AND:

TROPIK WOOD INDUSTRIES LIMITED
DEFENDANT

Mr H. Shah for the Plaintiff
Mr P. Samusamuvodre for the Defendant

Date of Hearing: 2nd October 1995
Date of Judgment: 13th October 1995

JUDGMENT

This matter came before me on the 2^nd October. The counsel for the defendant first applied for an adjournment.

Counsel was unable to refer me to any reason why the adjournment should be granted other than that he was not prepared properly as he had not been formally instructed. I note that the court record shows that counsel appeared in directions hearing on the 24^th March 1995 before the Deputy Registrar when this matter was set for hearing on this day.

Counsel was unable to refer me to any basis for his application which he would show a good and strong reason for the adjournment. The principles to be applied are:-

(a) illness of a party

(b) Absence of the material witness or

(c) Surprise

None of these matters were advanced as a reason for these matters were advanced as a reason for the adjournment.

It appeared to me that the issues in this matter were relatively clear cut and that the defence should have records within its possession to unable the trial to proceed given that I allowed a short time for counsel for the defendant to gather his client and take the appropriate instructions.

I adjourned the matter for what turned out to be half an hour.

On resumption, counsel for the defendant advised me that he had contacted his client whose office is only a short drive from the Court House. He was advised that one witness was in the United States (that appeared to be a Managerial witness). Another Managerial witness was in a Conference. He also advised me a check of his office revealed that the full file is not in his office. Apparently Counsel had taken over the practice of the former Solicitor on the record for the defence but this take over related mostly to plant and equipment. Counsel advised me that he did not have formal instructions to proceed. He had attempted to obtain these whilst talking with the defendants on the morning of 2^nd October by telephone. He had been unsuccessful in getting this instructions to proceed. Counsel applied for and was granted leave to withdraw in those circumstances.

The defendant’s name was then called three times by the Court orderly. No response.

I dismissed the application for the adjournment on the basis that no proper reason was given other than the lack of the defendant providing proper instructions to sufficiently prepare its counsel for trial.

The matter proceeded.

FACTS

Bearing in mind that the evidence was not tasted by cross examination due to non-appearance of the defendant, the plaintiff was called to give evidence.

The plaintiff, now a resident of Naitasiri, said that he started with the defendant in 1986 and worked there until October 1992. He said that there was no problem with his employment up to that date.

His average wage he said was in the gross sum of $101.00 per week. Exhibit 1 includes several Pay Slips picked at random during him period of employment.

On the 1^st October 1992 the plaintiff reported for work at the defendant’s premises at 7.00am in the morning. He was confronted by his immediate Supervisor who handed him a letter dated the 1^st October 1992 (Exhibit 2). This letter purported to suspend the plaintiff pending the outcome of certain investigations into an allegation of the removal of company property without proper authorization. He said that the letter was handed to him by the Personal Manager who spoke briefly to the plaintiff about it. The plaintiff denied the charges but accepted the suspension pending further investigations.

The plaintiff then returned to his residence and sometime later he was served with a letter dated the 7^th October which is Exhibit 3 in this proceeding. He was served with this letter by a member of the Security Personnel of the defendant. He said in evidence that this letter arrived approximately one week after it was dated. I therefore presume that it was served on him around about the 13^th or 14^th October 1992. This letter details that a fully investigation has been carried out into alleged serious misconduct on the 25^th September 1992 and that the person to whom it was addressed was effectively fired. I am unable to ascertain what is the importance of this letter or in fact its relevance. It is addressed to one Mr SITIVENI RALULU and no evidence was given as to why it should be before me or why the plaintiff should have received it.

Be that as it may, the next development was that the plaintiff was served with a letter from the defendant to the plaintiff dated the 9^th October 1992. That letter was given to him by the same Security Officer. It arrived, he said, approximately one week after it was dated. I take it that it arrived sometime in the week of the 13^th, 14^th, 15^th of October 1992. He said in evidence the Security Guard indicated he had some difficulty in finding him because the plaintiff had changed his place of residence in that intervening week.

The letter addressed to the plaintiff advises that a full investigation has been carried out into the alleged misconduct for which he was suspended and he had be exonerated. As the letter says “we conclude that the allegation is unfounded.” The plaintiff was advised that the suspension was lifted and he was to return to work at 7.00am on Tuesday the 13^th October 1992. He was further advised that no loss of pay would result. An apology was given by the defendants to the plaintiff in respect of this matter.

The plaintiff said he then returned to work the next day (perhaps on or about the 14^th\15^th of October) and spoke to the Personnel Officer. This was the same Personnel Officer from whom he received the original suspension notice. I note that the letter of 9^th October 1992 being Exhibit 4, is signed by a MR LEWENIQILA. His description is given as Personnel Manager.

The plaintiff said (and this evidence is untested) before he started work on that morning, he was told by the Personnel Officer “Did he expect to start.” The same Personnel Officer told him he could not start work on that day as he used to steal. He said that the Personnel Officer told him “You are a thief”. The plaintiff consequently left the employment and did not return.

The next development was that the plaintiff did receive a letter being Exhibit 5 which terminated the employment of the plaintiff effective from the 13^th October. This letter is dated the 23^rd October (1992).

The letter details that the plaintiff was requested to report for work on the 13^th October but he did not do so. The letter terminates his employment pursuant to Part B Clause 3 (c) of the Master Agreement which states:-

“An employee who is absent without permission of the employer for more than five consecutive working days will deemed to have dismissed himself unless a reasonable and acceptable explanation is preferred within a reasonable time.”

The letter also advised that the plaintiff would receive one week’s pay in lieu of notice and that he should contact the Personnel Department to complete those arrangements.

The plaintiff then returned to his village where he has since been a farmer.

On the 5^th April 1993 he commenced action by way of Writ in this Court.

The prayer for relief claims:-

(a) Damages for Wrongful Dismissal.

(b) Any other relief which may seem just and equivalent (perhaps this should read equitable) to this Honourable Court.

I must decide matters before me in the context within which they are pleased. This action is pleaded as an action for Damages for Wrongful Dismissal.

The principle to be applied in respect of wrongful dismissal is that which could be described as the Addis principle resulting from the case ADDIS –v- GRAMOPHONE CO. LTD (1909) AC 488 in which it was held that the measure of damages recoverable for wrongful dismissal cannot be more than the amount of remuneration which should have been paid and that not additional sum can be claimed on the grounds of humiliation or injury to personal dignity caused by the sudden termination of employment. This qualification to the principle comes from COX –v- PHILIPS INDUSTRIES 1976 (3 All ER) 161. Both principles were approved in the Fiji Court of Appeal Decision No. 9 of 1993 in DIRECTOR AGRICULTURAL –v- NARESH CHAND.

I have before me no Agreement or Contract. There is reference in Exhibit 5 to the “Master Agreement”. This “Master Agreement” is also alluded to in the defence filed in this matter but it was not put before me.

Regrettably therefore, I must proceed on the basis that there was an oral Contract of Service and apply the provisions of the Employment Act (Cap 92).

Section 28 of the Employment Act sets out circumstances in which an employee can summarily dismissed. It is sufficient to say that on the evidence before me from the plaintiff, none of these reasons is applicable.

Section 24 of the Act then sets out the provisions as to notice.

Section 24(1)(b) says:-

“Where the contract period is one week or more but less than a fortnight or where wages are paid weekly or at intervals of more than a week but less than a fortnight, not less than seven days notice before the expiration of such period.”

Section 24(2) says that notice may be given orally or in writing.

Thus, the employer in this circumstances should have given either one week’s notice or one week’s pay in lieu. The letter of the 23^rd October 1992 clearly indicates that the one week’s pay in lieu of notice was granted.

On the untested evidence of the plaintiff before me, that the Personnel Manager on the plaintiff’s return to work after his suspension, wrongfully stopped the plaintiff from working. I do not view the advices of the Personnel Manager to be termination of the employment because there is no evidence before me that he had any authority to hire and fire on that day but I do consider that the actions of the Personnel Manager were such as to send the plaintiff away from his work.

This in turn, on the plaintiff’s untested evidence, lead to the Notice of Termination of Employment sent under cover of correspondences of the 23^rd October 1992. That Notice of Termination properly offered one week’s pay in lieu of notice but said that the termination would be effective from the close of work on the 13^th October.

As I see it, the termination should in this circumstances more properly be from the 23^rd October 1992 with the one week’s pay in lieu of notice applicable thereafter.

I am of the view that the plaintiff was ready and willing and able to work for the period 13^th October to the 23^rd October but did not do so because presumably unauthorized actions of an officer of the Defendant Company. Thus the amount of remuneration which should have been paid to the plaintiff was his pay from the 13^th October to the 23^rd October plus the one week’s pay in lieu of notice.

On the plaintiff’s evidence it was not his fault that he failed to work between the 13^th October and the 23^rd October. This was the fault of the Personnel Manager – at least on the plaintiff’s untested evidence and the only evidence before me.

The period 13^th – 23^rd October relates to seven working days.

By examining of Exhibit 1 (the Pay Slips) it appears that the plaintiff worked eight hours a day at $2.30 an hour the daily rate of $18.40 for the seven days therefore his damages would be $128.80.

I consider that an interest rate of 10% per annum should be applicable for what is two and half years. I calculate that interest at $32.20.

I give judgment for the plaintiff against the defendant in the sum of $161.00 damages for wrongful dismissal.

I order that the defendant pay the plaintiff’s cost for this action to be taxed if not agreed.

I consider that I should also note in this judgment that the plaintiff in submission to me on the question of damages appeared to be making those submissions based on the premise that damages should be greater than those I have assessed because the principles applicable to the breach of the Contract of Employment should be those which I apply.

I have already noted that the matter before me seeks damages for wrongful dismissal and I am not empowered to go beyond that.

The plaintiff also of course has an obligation to mitigate his or her losses.

In my view, had this matter being decided on a breach of Contract argument, “reasonable notice” as required (see Richardson –v- Koeford [1969] 3 All ER 1264) would most likely in these circumstances, that notice prescribed by the Employment Act.

Also, of course, the defendant would have a very strong argument in respect of mitigation. The plaintiff himself in evidence said that he had not sought other employment. He had also failed to mitigate his loss by going back to his employer after he received the letter of 23^rd October 1992.

That correspondence sets out part B Clause 3 © of the Master Agreement indicates that the employee has a right to give a reasonable and acceptable explanation within a reasonable time.

In my view, had the plaintiff gone back to his employer and explained the circumstances under which he did not continue to work between the 13^th October and the 23^rd October, that the employer would have seen that as a reasonable and acceptable explanation. By falling to do so, the plaintiff has clearly failed to mitigate his loss and this would weigh heavily against him had a breach of contract argument be presented to me.

In circumstances, although not asked to determine the question, I doubt whether a court would have awarded damages for breach of Contract in any greater sum than those awarded for the Wrongful Dismissal action.

JOHN D. LYONS
JUDGE