Lasike v Fiji Permanent Representative to the United Nations [2005] FJHC 406; HBC0501J.2000S (4 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 501 OF 2000

Between:

SEMISI LASIKE
Plaintiff

and

FIJI PERMANENT REPRESENTATIVE TO THE
UNITED NATIONS

THE SECRETARY FOR FOREIGN AFFAIRS

THE SECRETARY PUBLIC SERVICE COMMISSION

THE ATTORNEY GENERAL
Defendants

Mr. V. Tuberi for the Plaintiff
Ms. A. Rokomokoti & Ms. Rakuita for the defendants

Date of Judgment: 4 November 2005

JUDGMENT

By writ of summons dated 7 November 2000 Semisi Lasike (the ‘plaintiff’) commenced this action against the defendants for damages arising out of alleged breach of terms and conditions of employment and allegedly unlawfully, wrongfully and unfairly dismissing him from employment in the ‘Fiji Mission’ on or about the end of October 1998.

(A) Background

In this case evidence was given by the plaintiff himself in support of his claim and by Mr. Sakiusa Rabuka. For the defendants, Mr. Poseci Bune a former Ambassador for Fiji to the United Nations in New York, was called to testify in their defence.

The plaintiff and Mr. Bune were close friends when Mr. Bune was the Permanent Secretary for Health in Fiji. He was employed as Mr. Bune’s driver.

By an agreement dated the 14 August 1997 and signed on 15 August 1997 the Plaintiff agreed and accepted to work as a chauffeur/handyman in the Fiji Mission to the United Nations in New York.

The employment contract provided that the Plaintiff would be confirmed in the position only after a review of his work which was to be at the end of a probationary period of 6 months from the date of his appointment. He was appointed on 1 September 1997 after arriving in New York on the 27 August 1997. His position as Chauffeur/Handyman was later confirmed on 5 February 1998.

To go to New York, the Plaintiff was required by word of mouth from Mr. Bune to pay his own air fares from Fiji to New York. The plaintiff lived in the premises of the Permanent Representative to the United Nations (hereinafter referred to as “PRUN”).

The relationship between PRUN and the plaintiff became strained and it also deteriorated when on 15 October 1998 he was dismissed from employment.

The contract contained a termination clause which stated:

“(e) Termination of service by the Mission or by you shall be by notice in writing given thirty days prior to the effective date of termination, or upon payment of one months' salary in lieu of notice. You will however be liable for instant dismissal in case if incompetence, misconduct, insubordination or gross negligence.”

The Plaintiff’s case

The Plaintiff’s Case is that he was unlawfully dismissed on 15^th October 1998. He alleges that the terms of his contract in relation to dismissal was not followed and as such, the employer should be paying him damages.

The damages claimed include salary for a term of three years. In this regard, the Plaintiff alleges that his contract was for a fixed term of three years like the diplomats covered under the Fiji Overseas Service Regulations (Document 2 in Plaintiff’s bundle).

The Defendants’ case

The defendants’ case is as follows:

(i) the Plaintiff was summarily dismissed in accordance with his terms of employment;

(ii) In the alternative, the Employer (Defendant) had the power under the contract of employment to dismiss the Plaintiff without cause but with notice or payment in lieu of notice.

(B) Issues

The issues for Court’s determination are:

1. Whether the Fiji Overseas Service Regulations (the ‘FOSR’) are applicable to the Plaintiff’s employment?
   
2. Whether the Plaintiff was lawfully and fairly dismissed in any event (be it under the contract of employment or by virtue of the application of the Fiji Overseas Regulations).
   
3. Whether the Plaintiff is entitled to compensation for overtime not used as time off and at what rate?
   
4. Whether the State is liable to pay damages to the plaintiff.
   

Consideration of the issues

During the period between 28/07/1998 to 10/10/1998 there had been a series of allegations of irresponsibility, incompetence, improper conduct, insubordination and unsatisfactory work performance levelled against the Plaintiff. Details of these allegations are documented in both the Plaintiff’s and the Defendants’ bundle of documents relied upon in evidence.

These allegations are set out below:

28/07/1998 A letter of warning from the Second Secretary Mr. Draunimasi to the Plaintiff after it was discovered that the keys to the official mission vehicle was locked in the vehicle. The vehicle was under the responsibility of the Plaintiff.

28/07/1998 The Police charged the Plaintiff with over-speeding on the 21^st of July 1998. This was brought to his attention by the second secretary by letter and was told to be careful. The Mission made a request to the Courts that Diplomatic Immunity be granted to the Plaintiff in respect of the traffic offence.

19/08/1998 Contained a number of issues that were raised by the Second Secretary by letter to the Plaintiff:

1. On 08-09/08/1998, which was a Saturday - Sunday, the Plaintiff was not at the Mission office nor was the mission vehicle.
   
2. On Monday 10/08/1998 the Plaintiff was absent without official leave.
   
3. There was a concern by the second secretary that the Plaintiff had now deliberately on several occasions during the absence of the Permanent Representative refused to seek official approval for absence and related matters.
   
4. Plaintiff demonstrates that he is not prepared to follow instructions.
   

21/09/1998 Lateness to work

23/09/1998 2 minutes were separately prepared for the Plaintiff:

1. Notifying the Plaintiff of a scratch mark on the Mission vehicle. He failed to report the matter to the Police and to file a report of the scratch to the Mission. He was asked to submit a report about the mark, and assess and pay for the repair costs.
   
2. Plaintiff was sleeping and snoring in the Conference room during official hours of work. He was asked to submit a report about this.
   

Parking violations – 32 violations at US $55.00 each - totalling US $1760.00

Documents tendered in evidence show three occasions on which the Plaintiff was required to provide explanations for the above allegations.

The first instance can be implied from the wording of a letter dated 28 July 1998, which shows that there was prior consultation between the Second Secretary and the Plaintiff regarding keys of the official Mission vehicle. The second and third instances are in the letters dated 22/09/1998 and 23/09/1998. Out of these there had been one that the Plaintiff responded to by a letter dated 22/09/1998, and 23/09/1998 with his reasons and apologising.

The Plaintiff gave in evidence the reason why on some of these occasions he was not constructively responsive to the allegations that were put against him. He stated that he felt in no position to even speak given the position that he held relative to the authority of those of a higher rank. He felt that all he could do was to remain silent.

A letter dated 15 October 1998 confirms to the Plaintiff that he had been terminated from his position. This confirmation letter of termination refers to a meeting on the previous day between PRUN, a Lui Vunibobo and the Plaintiff. The letter purports to convey that at this meeting PRUN had outlined to the Plaintiff that he was going to be terminated on certain grounds. These grounds are not expressly stated in this letter save only that PRUN refers to them only as “on the grounds which I enumerated to you...” being those of the discussion of Wednesday 14 October, 1998. The letter goes on to state his dismissal with effect from 10 October 1998.

In evidence the Plaintiff denied the occurrence of any meeting on 14 October referred to in the said letter. However, he stated that on the Monday immediately following the weekend of the Fiji Day Celebrations he was called by PRUN and informed in the presence of one Mr. Tikoca that he was terminated as of Saturday 10 October because he had not performed the duties that were required of him at the Fiji Day celebrations.

In addition to the termination letter, another letter was issued by PRUN on the 15 October addressing the staff at the Mission Office that:

1. The Plaintiff had been dismissed.
   
2. The Plaintiff was banned from using any Mission facility.
   
3. The Plaintiff was banned entry into any mission owned/leased premises.
   
4. The staff members were to advice the members of their families accordingly in respect of this dismissal.
   
5. Any staff breaching the instructions of the letter would be disciplined.
   

The plaintiff was paid the entitlements that were due to him less the costs of repairs to the official vehicle of the mission and the costs of his airfare back to Fiji.

(i) Applicability of Fiji Overseas Service Regulations to the facts of this case

(a) Constitution

First and foremost there are relevant Constitutional provisions that have been relied upon in this matter by the Plaintiff. However, in addition to these, one that was not raised is section 33(3) of the Constitution of Fiji, which states:

“Every person has the right to fair labour practices, including humane treatment and proper working conditions.”

Thus whichever way one is to assess the matters pertaining to the issues in question one should finally arrive at a decision that seeks to uphold this provision without having to contravene the limitations of this provision which states in s33(4):

“A law may limit, or authorise the limitation of the rights set out in this section:

(a) in the interests of...public order...

(b) for the purposes of protecting the rights and freedoms of others or

(c) ......

but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”

It will be seen below that common law has developed to accommodate these constitutional requirements for fair labour practices.

(b) Fiji Overseas Regulations

Mr. Rabuka said in evidence that Fiji Overseas Service Regulations (the ‘FOSR’) is applicable to the plaintiff but Mr. Bune (the ‘PRUN’) does not agree.

The question that arises is whether diplomatic immunity applies to the plaintiff and whether his term of contract was for three years.

Diplomatic immunity is provided for under 3 consecutive sections, these being sections C.15, C.16 and C.17. The most relevant applicable under this matter would be section C.16(d) which states:

“It is difficult to generalise about service staff (chauffeurs etc) and domestic servants in the service of the Mission itself (in the chancery or otherwise), and domestic servants employed privately by members of the mission.”

“The Vienna Convention countries are required to accord immunity in respect of official acts to servants employed in the chancery, but not to others. In non-Vienna countries the position of servants will depend on local law and practices; in most such countries some classes of servants will enjoy immunity.”

In this case it was argued by the Plaintiff that the Mission in putting forward an argument for Diplomatic Immunity showed that the Plaintiff was therefore in the eyes of the Mission protected under immunity meaning that the provisions of the Regulations applied to him. It cannot be that the fact of pleading diplomatic immunity in court is to be of any value. It does not prove that there is indeed diplomatic immunity for the Plaintiff. The Regulations themselves do not state specifically that the diplomatic immunity applies to the plaintiff in his capacity as a Chauffeur. The applicability of the Overseas Regulations generally is subject to the plaintiff’s contract of employment. Instead, the Regulations serve to regulate certain aspects of employment as and when they are applicable to a person depending on the provisions of the contract of employment that govern the particular terms and conditions of a certain position with the Mission.

As far as the duration of the employment of the Plaintiff is concerned, the section relied upon by the Defendants in the matter is section B.2 of FOSR under the caption ‘Length of Tour of Duty’ which states:

“The duration of an officer’s tour of duty at an Overseas Mission will be 3 years unless otherwise stated in his letter of appointment or contract of service.”

I find that in this case the contract of employment that was signed between the Plaintiff and the Government of Fiji governed the employment relationship. More so, if the regulations apply to the Plaintiff the above provision expressly gives the written contract of employment precedence should the provision state that the duration of the contract is to be otherwise than 3 years.

Under the contract signed by the Plaintiff there is no mention of the duration of contract, but one can determine this by either a reference to the remuneration clause in the contract or to the notice period stated in the contract of employment. The remuneration provision states that the Plaintiff would receive a commencing salary of $22,758 per annum. I would say that where there is no express provision in the contract of employment then the duration of the contract is taken from the way in which salary is stated to be paid. Here there is yearly apportionment of salary, therefore the period that this contract is to run is for at least a year. Following from the general rule that the rights and duties of the employee stem basically from the contract itself the duration in this case should then be that implied under the remuneration clause.

Therefore as far as the application of FOSR is concerned, the provisions do apply as modified as section B.2 says ‘unless otherwise stated in his letter of appointment or contract of service.’ Here the contract of service applies.

For the above reasons I accept the submissions of the defendants’ counsel on the applicability of the FOSR to the plaintiff and reject those of the plaintiff’s counsel as being without merit.

(ii)Termination - fairness and reasonableness

This brings me on to consider the most important issue, namely, whether the termination was in accordance with the law.

The requirement that an employer deals fairly with the employee in an employment relationship is a Constitutional requirement (above) and under the rules of common law in Fiji.

Although in Mallock v Aberdeen Corporation [1971] 1 WLR 1578 at 1581 Lord Reid has said that “employee who may be dismissed without cause is not entitled to demand reasons from his employer, nor in the ordinary course, is he entitled to a hearing or any of the normal incidents of natural justice”, the Supreme Court in the case of Central Manufacturing Company Limited v Yashni Kant (Civil Appeal No. CBV0010 of 2002) said:

“...that there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. Each case must depend upon its own particular facts.”

Along with this, one needs to be reasonable when exercising the functions of terminating a contract. Hence there would not only be questions of substance required to be determined but those of procedure as well. Chitty on Contracts. Volume II “Special Contracts” 2004 states that the issue of fairness depends upon whether the tribunal is satisfied that in the circumstances the employer acted reasonably in treating the reason shown to him as sufficient reason for dismissing the employee.

The court is able to take matters both of substance and procedure into account when deciding the issue of reasonableness.

Findings

On the evidence which I accept I find as fact that allegations of the Plaintiff’s incompetence, insubordination and unsatisfactory work performance have been proved on a civil standard.

In these circumstances dismissal was warranted. The court determines whether the allegations justify the action taken by the employer in this case.

There is evidence that the employee was given the opportunity to defend himself but he chose to be silent and did not wish to respond fully. More so, the evidence strongly suggests that the termination follows series of acts of incompetence, irresponsibility and insubordination that the Plaintiff did not adequately answer to.

The reasonableness criteria as applied to this case may be understood in the light of common law propositions that have been in place for centuries. It has been held that if the employer does know of the misconduct(s) in question and thereafter continues the employment he may be taken to have waived his right to dismiss the employee on that ground. (vide Boston Deep Sea Fishing Co. v. Ansell [1888] UKLawRpCh 123; (1888) 39 Ch D 339 at 358). But the employer does not lose his right of dismissal if he honestly accepts the employees denial of guilt [vide Federal Supply and Cold Storage Company of South Africa v. Angehrn & Piel (1910) 103 LT 150]. And if the alleged misconduct consists not in a single act but in a series of act, the whole course of the employee’s conduct must be taken into account.

The evidence which I accept point to the fact that there were indeed adequate grounds upon which the termination was based.

The question of procedure should tie up with the overall reasonableness of the termination. The facts of the case show that a letter was written to the Plaintiff informing him of the termination. Although it does not clearly enumerate to the Plaintiff the grounds upon which he was being terminated, but there is ample acceptable evidence that the employer had given to the Plaintiff its reasons indicating to him about his imminent termination in a conversation a day prior to the date of the letter. The plaintiff, however, denied this and has given a separate account of such a conversation. Whatever the account there is clear evidence that there was an indication to the Plaintiff on a day or two before the official termination letter stating the grounds of his termination. According to the Plaintiff he was told that he would be terminated, as he had not carried out his duties at the Fiji Day celebrations. On the other hand there is the word of the Defendants that owing to the consistent failures of the Plaintiff to carry out his duties, insubordination and owing to the string of traffic infringements under his name his termination would have been forthcoming anyway.

In the headnote to Federal Supply and Cold Storage Company of South Africa case (supra) it is stated as follows which is pertinent:

“When the actions of a servant have been such as to raise a strong prima facie case of misconduct, sufficient to justify his master in dismissing him, the burthen of proof is shifted to the servant to show that his conduct is susceptible of an innocent interpretation.”

The following statement in the headnote (supra) is also worthy of note in the circumstances of this case.

“A master will not be held to have condoned the misconduct of his servant because he believed the servant’s denial of the misconduct imputed to him, and continued him in his employment without making further inquiries which would have disclosed the truth, but is justified in dismissing him at a later date, when the true facts have come to his knowledge. Judgment of the court below reversed.”

(iii) Overtime pay

This is not payable in view of the following provision in clause 4(g) of the contract which states that the plaintiff:

“may be called upon to work outside normal office hours. Overtime will not normally be paid but you may be allowed time off in lieu when the additional work has been undertaken at the request of Head of Mission” (emphasis added).

In any case the plaintiff has not been able to substantiate his claim for overtime.

(iv) Other issues

Besides the issues argued in this case there appears to be one major reservation concerning the repatriation of the Plaintiff from his place of work. It is rather unusual that this was not covered by the employer as there is a general requirement that the employee be repatriated to his place of employment and such an instance as this there is an obvious expectation that the employee would be repatriated.

There was also mention in the Plaintiff’s submission about the issue of natural justice. The question of ‘natural justice’ does not arise in this case but the employee has to be dealt with fairly.

[D] Conclusion

In the outcome, in summary after considering all the evidence adduced in this case and the submissions made by both counsel and bearing in mind the authorities I have come to the findings as stated hereabove on the issues before the Court.

The Fiji Overseas Service Regulations provisions do not take precedence over the terms of the contract of employment. The plaintiff’s claim for damages arises out of his assertion or assumption that he was on a fixed contract for 3 years based on the provision in FOSR that “the duration of an Officer’s tour of duty at an overseas mission will be 3 years unless otherwise stated in his letter of appointment or contract of service.”

The defendants were justified in dismissing the plaintiff for the reasons already outlined hereabove.

In this regard he was properly dealt with in terms of his contract of employment.

In cases where employment is based on a contract, the requirement is that as established in Central Manufacturing Company Limited v Yashni Kant Civil Appeal No. CBV0010 of 2002. The Supreme Court held that an implied term exists in modern contracts of employment that requires an employer to deal fairly with an employee even in the context of dismissal. In this context the Supreme Court said as follows:

“In our view, the Court of Appeal correctly held that there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. The content of that duty plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause, and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal.” (emphasis mine).

The implied term of fairness does not extend to the giving of reasons, although reasons were given in this case to the plaintiff and he was made fully aware of the reasons for his dismissal. The giving of hearing is also not implied in the term of fairness. However, in this case he was given all the opportunity to respond to the allegations but he preferred to remain silent. In any case the employer had the right to dismiss in terms of the termination clause herein.

I agree with the defendants’ counsel’s submission that the contract of service dated 14 August 1997 is exhaustive in itself as far as the terms and conditions of employment relating to the plaintiff is concerned and there is no ground to look beyond it to FOSR for guidance on its interpretation.

I therefore hold that the FOSR does not apply to the plaintiff’s employment to the extent mentioned hereabove.

In view of my findings in this case the question of ‘damages’ does not arise to be considered.

Orders

For the above reasons the plaintiff’s claims are dismissed.

However, it is ordered that he be paid, if not already paid, one month’s salary in lieu of notice in terms of the termination clause in the contract of employment although he was terminated for the reasons given by the employer.

It is further ordered that the plaintiff is entitled to be repaid his fare for his return to Fiji if it has been deducted from his salary in all the circumstances of this case. I award costs against the plaintiff which are to be taxed unless agreed.

D. Pathik
Judge

At Suva
4 November 2005