IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0402 OF 2001L

BETWEEN:

KANTH SAMI GOUNDAR
aka KANDA SAMI
Plaintiff

AND:

FIJI ELECTRICITY AUTHORITY
Defendant

Counsel: Mr. R. Prakash for the plaintiff
Mr. T. Tuitoga for the defendant

Date of Hearing: 4 July 2005
Date of Judgment: 5 August 2005

JUDGMENT

The plaintiff claims damages for wrongful dismissal from the defendant. The plaintiff seeks general damages and costs, no other relief is sought.

Background

The plaintiff commenced employment with the defendant on the 26th March 1990 as an installation and maintenance electrician “A”. His appointment was confirmed by letter dated 6th July 1990.

In 1992 the plaintiff applied for appointment to the position of meter technician whilst he was working in the transformer workshop. His application was unsuccessful.

In 1994, he applied for appointment to the position of installation inspector, Lautoka and his application for this position was also unsuccessful.

In 1995 the plaintiff applied for the position of installation inspector - Navutu which application was unsuccessful.

In 1999 whilst employed in the Retail Department of the Fiji Electricity Authority at Lautoka, an incident occurred where the plaintiff was assaulted by his supervisor, Ganesh Chand. This resulted in the Fiji Electricity Authority terminating Ganesh Chand. Ganesh Chand via the Fiji Electricity Workers Association brought an application before the Arbitration Tribunal, which issued an award on the 30th July 2001. In the award the Permanent Arbitrator said:

“Accordingly, I direct the Authority to re-engage the grievor within 21 days from the date of this Award in a position to be decided solely by the Authority. Needless to say, that such a position ought not to be in close proximity to that of Kanda Sami.”

The position held by Ganesh Chand at the time of his services being terminated as a installation inspector was not filled during the period of his absence. The Authority was short of installation inspectors and had a lot of work in that section. The position was advertised and it was determined that the best applicant was Ganesh Chand. To enable Ganesh Chand to be re-engaged and 

appointed as an installation inspector required the plaintiff to be transferred from the inspection section to comply with the terms of the order of the Arbitrator and also for commonsense.

The plaintiff as a Grade “A” electrician was suitable for employment in other sections of the Authority and a decision was made to transfer the plaintiff from the inspection section to the metering section, both sections being under the Retail Department and both sections being based in Lautoka. The plaintiff was at the time based in Namoli House as a member of the inspection section and the metering section was based at the Navutu Depot.

On the 16th October 2001, the personal officer, Nalini Khan and Sala Nadakuitavuki met with the plaintiff and explained the situation to him of the return of Ganesh Chand and his proposed transfer to the metering section within the same department.

Document 12 to Exhibit P-A, details the urgent need for Ganesh Chand to be engaged in the inspection section and sets forth the details of the meeting of the 16th October 2001.

The plaintiff objected to his transfer. The plaintiff sets forth his refusal and the reasons for it in Exhibit P-A11. The only reason put forward for rejecting the transfer was that it was unfair as the plaintiff in his opinion had done nothing wrong.

A further meeting took place with the plaintiff on the 25th October 2001 and a decision was made that the plaintiff be transferred as “Electrician A, Metering [Western]” with immediate effect.

The plaintiff continued to resist the intended transfer or internal posting. The defendant by memorandum dated 26th November 2001 directed the plaintiff to report to the Acting Metering Co-ordinator at Navutu on Friday, 30th November 2001. The memorandum indicated that all terms and conditions of the plaintiff’s service would remain unchanged.

The plaintiff refused to take up his new appointment and continued to report to the Namoli House. By memorandum, Exhibit P-A18 dated 30th November 2001, the plaintiff was advised by the defendant that his consent was not required as it was an internal posting and that such a posting was a management prerogative and further that his act of willful disobedience of management instructions would leave the defendant with no option but to make submissions for termination of his services to the Authority. The plaintiff continued to defy the order issued to him and by memorandum dated 6th December 2001 (Exhibit P-A19), the plaintiff was suspended, pending dismissal, for one month effective from the 14th December 2001 for his “wilful disobedience to lawful orders given by the employer”. The dismissal was to take effect on the 13th January 2002 and by memorandum dated 11th January 2002, Exhibit P-A26, the dismissal, effective from the 13th January 2002, was confirmed.

The defendant copied all correspondence to the plaintiff’s trade union.

Following the plaintiff’s dismissal, he sought further employment with the Goldmine at Vatukoula, Fiji Sugar Corporation and the Public Works Department. He was unable to set himself up as a contractor as $5,000.00 deposit was required. His evidence is that he was assisted financially by his relatives and to facilitate meeting the expenses of the marriage of his daughter, he borrowed money. In 2003, the plaintiff migrated to Canada and has been employed full time since July 2003 as a process worker.

The plaintiff acknowledged that he refused to move in accordance with the direction given by the defendant and said he did so as “I was victimized by a fellow employee and he was terminated and later on he was re-engaged and the company gave him promotion in the proximity of me when I was employed for a long time”.

The plaintiff has not given any evidence of suffering any distress, anxiety or stigma as a result of his dismissal.

The Collective Agreement

The defendant in 1994 entered into a collective agreement with the Fiji Electricity and Allied Workers Union. The agreement is said, in paragraph 3(b), to apply only to the members of the Fiji Electricity and Allied Workers Union. The plaintiff was a member of that union.

The plaintiff contends that paragraph 6 (h) of the agreement relates to his posting or transfer from the inspection section of the Retail Division to the metering section of the Retail Division at Lautoka.

This clause provides:

“Permanent Transfer

Notice of transfers of members should be served at not less than a month. Members who are permanently transferred by the Authority are those that have been advised in writing by the Authority and who in turn have given their consent in writing for such transfers. It also means that he does not have to maintain two homes except by choice.”

The plaintiff submits that the clause requires him to consent in writing and that if he doesn’t then the defendant cannot transfer him from Namoli House, Lautoka (Inspection Division) to Navutu, Lautoka (Metering Division) both divisions being within the Retail Department of the defendant.

Evidence on behalf of the defendant is that the clause does not apply to postings of this nature and that it is intended only to apply to postings from one district to another. The reference to not having to maintain two homes except by choice clearly supports such an interpretation.

The plaintiff in his pleadings pleads only that “the defendant company has failed to adhere to this agreement”. The reference to “this agreement” is a reference to the collective agreement referred to above. The pleading does not indicate in what manner the defendant has failed to comply with the agreement.

Clause 7 (c) (3) of the Agreement provides for the defendant to dismiss an employee for a series of offences or for one single offence provided that the employee shall initially be suspended for a period of up to 1 month. The Clause is complementary to Clause 7 (e), which deals with dismissal and provides that any dismissal should be preceded by an initial period of suspension as detailed in Clause 7 (c) (3) to “allow the union time to make appropriate representations”.

The evidence before the court is that no representations were made by the union within the specified one month period. Representations were made by the plaintiff’s barristers and solicitors by letter dated 29th November 2001 (Exhibit P-A17 and subsequent court proceedings resulted in an injunction being granted restraining the defendant from terminating the plaintiff however the injunction was dissolved on the 10th January 2002. There is no evidence before the court of any submissions or applications being made by the plaintiff to the defendant with respect to the intended dismissal.

The Law

The Supreme Court of Fiji in Central Manufacturing Company Limited v Yashni Kant – Civil Appeal No. CBV0010 of 2002 considered the obligation on any employer and the right to general damages of an employee.

At page 21 Their Lordships said:

“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 fairly deal 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. Each case must, of course, depend upon its own particulars facts.”

The court considered the long-standing authority of Addis v Gramophone Company Limited [1909] A.C. 488. The court ultimately concluded that Addis had no place in a modern system of employment law. The effect of this decision is therefore that where an employee is wrongfully dismissed, the damages for the dismissal may include compensation for the manner in which the dismissal occurred, or for injured feelings, or for the loss, the employee may sustain from the fact that the dismissal itself makes it more difficult for him to obtain further employment.

Conclusion

When read in its totality, Clause 6 (h) can only have the interpretation given to it by the Human Resource Manager for the defendant, that is, that it applies to transfers from one district to another but that it does not apply to postings to different sections within the one department or even different departments within the one centre. To give it any other interpretation would deny the defendant of any right to manage its business. It would not have the right to allocate staff to appropriate sections or departments to meet the work demands from time to time.

The plaintiff in his evidence stated that his objection was that

“they were trying to move me out from there and get somebody who had assaulted me and the Arbitrator ruled that he was not supposed to be there” and “I was victimized by a fellow employee and he was terminated and later on he was re-engaged and the company gave him promotion in the proximity of me when I was employed for a long time”.

The Arbitrator’s ruling was that the plaintiff and Ganesh Chand should not work in close proximity and no more than that.

The defendant on the evidence before the court complied with the terms of the Collective Agreement in effecting the dismissal of the plaintiff. The plaintiff was suspended for one month to give his union or other persons the opportunity to be heard. The union did not intervene.

There has, on the part of the defendant, been no failure to comply with the terms of the Collective Agreement and accordingly, I find that the plaintiff’s dismissal was not “unjustified, wrong and without any proper procedure…”.

Should it be that I am wrong then one needs to consider whether the plaintiff is entitled to damages in any event. In the course of the hearing, Counsel for the Plaintiff confirmed that the plaintiff’s claim was only for general damages. There is no evidence before the court of the plaintiff having suffered any mental distress, damage to reputation or any other form of humiliation or damage flowing from the manner of his dismissal.

He sought alternate employment and was unable to obtain such employment but there is no evidence before the court that his inability to find employment was in anyway related to the manner of his dismissal. I find therefore that even if the plaintiff was successful as to liability, he would fail in his claim in damages as it is pleaded.

Orders of the Court

1.	Verdict for the defendant.

2.	Plaintiff has to pay the defendant’s costs as agreed or assessed.

JOHN CONNORS
JUDGE

At Lautoka
5 August 2005