Dhar v Fiji Public Service Commission [2008] FJHC 213; HBC155.2004 (10 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 155 OF 2004

BETWEEN:

DR UZZAL KANTI DHAR
(f/n Nagendra Nath Dhar) of 245 Nicoll Place, Maunikau, Suva in Fiji,
Consultant Urologist
Plaintiff

AND:

FIJI PUBLIC SERVICE COMMISSION
a commission created under the provisions of the Public Service Act
First Defendant

CHIEF EXECUTIVE OFFICER, MINISTRY OF HEALTH,
Dinem House, 88 Amy Street, Toorak, Suva in Fiji
Second Defendant

ATTORNEY GENERAL OF FIJI
of Suvavou House, Victoria Parade, Suva in Fiji
Third Defendant

Mr. D. Sharma for Plaintiff
Ms S. Levaci with
Mr. N.N. Prasad for Defendants

Date of Hearing: 12th & 13th August 2008
Date of Judgment: 10th September 2008

JUDGMENT

Background:

[1] The plaintiff was a citizen of Bangladesh. By profession he was a doctor. He had completed his degree in medicine from the University of Dacca in 1978. For a short while he worked as surgical registrar. In 1983 he went to Bulgaria to study urology. He obtained a Doctorate in Philosophy in Urology in 1988.

[2] In 1993 he came to Fiji and was employed under the expatriate agreement of service for a period of three years. He was appointed as Consultant Urologist at the CWM Hospital, Suva. These expatriate contracts of service were extended from time to time. The final expatriate contract which he signed is dated 22nd February 2001 and which was to run till 21st February 2004.

Expatriate Contract of Service:

[3] This action concerns Clause 10 of the agreement which deals with a situation where a foreigner on contract like the plaintiff acquires Fiji citizenship during the course of contract. Clause 10 sets out the steps the parties must take and consequences of such acquisition of Fiji citizenship. These consequences are that he forfeits terms and conditions and particularly privileges enjoyed under an expatriate contract. These privileges are airfares for the employee and family at the end of a contract to his country of residence, baggage allowance and gratuity. Such expatriate officers do not come under the FNPF scheme. Once an officer becomes a Fiji citizen he is subject to Local Agreement of Service which is normally in the form of Letter of Appointment as contained in Document 29 of the agreed bundle. The officer upon acquisition of Fiji citizenship is required to inform his Head of Department of it within 24 hours of such acquisition.

[4] The Department or the Public Service Commission is then required to issue him a Local agreement within seven days of acquisition of citizenship. The officer has 30 days in which to sign and return the Local agreement to the relevant authority, that is, the Public Service Commission.

Acquisition of citizenship by the Plaintiff:

[5] Some time in 1999 the plaintiff decided to apply for a Fiji citizenship. Doctor Senilagakali who was a former Permanent Secretary for Health supported his application – PExhibit 3. On 16th August 2000 the Director of Immigration wrote a letter to the plaintiff informing him that his application for citizenship had been approved. It also says that before a certificate of naturalization was given to him he had to pay $110.00 fee and renounce Bangladesh citizenship within 12 months – Document 13 in the agreed bundle. Subsequently the Director of Immigration extended the time to renounce Bangladesh citizenship to end of March 2002 – document 17.

[6] The plaintiff was due to go for leave in February 2001. This leave had accrued to him under the 1999 contract. He deferred his leave for two reasons. The first was that due to the coup of 2000 there had been a setback caused to his work of operating patients which resulted in a backlog. He wanted to clear the backlog before taking leave. He sought approval from the Public Service Commission, the body responsible for government employees, to go on leave in December 2001. Approval was granted according to the plaintiff. He also stated that he did not renounce his foreign citizenship immediately as he needed to go to Bangladesh so he required his Bangladesh passport.

The beginning of dispute:

[7] The plaintiff went to Bangladesh in December 2001 and returned to Fiji on 15th March 2002. This is when the problems began. He told the court that as soon as he reached his residence, he was given a letter saying that he was not to go to CWM Hospital.

[8] He also told the court that prior to his going to Bangladesh, he had problems with Dr Tuqa the Medical Superintendent. The plaintiff says that he had given an appointment for surgery to a patient with kidney stones. Doctor Tuqa forced him to bring forward this person’s operation a practice to which the plaintiff objected.

[9] Having returned to Fiji, the plaintiff immediately set about tidying his outstanding citizenship matter. He told the court that on 19th March 2002 he went to the Immigration Department, surrendered his Bangladesh passport, signed a register and was given his certificate of citizenship – document 18. He says even though it is dated 18th September 2000, this was the first time he saw it. The same day on 19th March 2002 he wrote to the Ministry of Health about his acquisition of citizenship as required by Clause 10 of the contract – document 20.

[10] Following instructions from the Public Service Commission, the Ministry of Health on 2nd April 2002 asked the plaintiff to resume duties at CWM Hospital but at the same time withdrew privileges to provide private consultation services after hours to anyone. Again on 11th April 2002, the Public Service Commission had to write to the Permanent Secretary for Health to offer the plaintiff a Local agreement of Service.

Offer of a Different Post of Consultant Surgeon not Urologist:

[11] A Letter of Appointment was offered to the plaintiff on 1st May 2002 well after the seven day period prescribed under Clause 10 of the Expatriate contract. It is signed by Mr. A. Tamanitoakula for Permanent Secretary for Health. It is backdated to 19th March 2002. However the plaintiff was given the post of a Consultant surgeon. The plaintiff was dismayed by this appointment. He expressed his dismay by letter dated 6th May 2002 (Document 30). He expressed the view that as a Urologist it was not right that he be given the post of Consultant surgeon as it was risking human lives.

Did the Ministry of Health show good faith in changing the post?

[12] The question which arises is whether this change of post was done in good faith. An employer has an inherent power or ability to initiate change in the organization of its workforce. This includes power to transfer within the organization. This power is not absolute. This discretionary exercise of power is fettered by test of reasonableness and requirement to act in good faith. In Central Manufacturing Company Limited v. Yashni Kant – CBU 10 of 2002 the Supreme Court ruled 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".

[13] Therefore the Ministry’s decision to post the plaintiff as a Consultant Surgeon must be assessed for reasonableness by reference to whether they were made in good faith but also by reference to wider test of reasonableness in the sense of fairness.

[14] The plaintiff for nine years since he first came to Fiji was engaged as a Consultant Urologist. His specialist degrees are in Urology. The vast majority of his experience was in this specialist field. The plaintiff wrote to the Ministry saying it was professionally unethical to post a Urologist as a consultant surgeon as it would pose risk to human life. The quality of health services he reasoned would suffer if an ordinary surgeon were to do the work of the Urologist. He wrote to the Ministry of Health expressing his dismay and seeking explanation. There was no response to this letter. He told the court that Doctor Asaeli Matairavula had been posted to act in his position. He was not a Urologist. As a matter of fact Doctor Matairavula’s name had been removed from the Specialist Roll on 16th May 2002 by the Fiji Medical Council. He was not to perform any specialist surgical work.

[15] There was no response to plaintiff’s letter of 6th May 2002. However it is apparent that there were moves from within the Ministry of Health to have the plaintiff suspended: see document 31 where the Public Service Commission is seeking clarification on the public need for urologist if the plaintiff was suspended.

[16] In response to clarification sought by the Public Service Commission, Doctor Tuqa wrote on 10th May 2002. He stated that the service of a Urologist is not a priority for CWM Hospital. He stated that urology service will never be negatively affected if the plaintiff is suspended or totally removed from the service and lastly the plaintiff "will never ever be allowed from ethical points of view to practice here at the CWM Hospital".

[17] Mr. Sharma submits that Dr Tuqa had ulterior motive in giving such advice and his advice cannot go unchallenged.

[18] Document 26 is a letter dated 8th April 2002 written by Doctor Waqainabete which shows that he had to seek advice from the plaintiff to do urology work. It shows that the plaintiff’s advice was necessary. This letter shows that there was still a post of Urology Consultant to be given to someone else. Doctor Tuqa’s sentiments are not shared by doctor Senilagakali (Exhibit PE3) where he says Fiji is fortunate to have the plaintiff in the government service at CWM Hospital. This was recommendation by a former permanent secretary for health and Former President of Fiji Medical Association, a very prominent person with vast experience in health. In 1996 Mr. Tamanitoakula described the plaintiff as working with "zest and integrity and will be a great asset for any hospital" and then "he will leave a gap that will be difficult to fill should he decide to move elsewhere".

[19] Dr Tuqa’s stand that the CWM Hospital did not need a Urologist is effectively neutered by the fact that soon after a specialist urologist Doctor Rassal Dhaval was brought to CWM Hospital from India at a greater expense to the State as his airfares would need to be paid plus gratuity. This subsequent appointment makes Dr Tuqa’s assertion that "Urology service will never be negatively affected if Dr Uzzal is suspended or totally removed" indeed incredible and defies common sense.

[20] Doctor Tuqa did not come to court to testify and to justify his stand. Doctor Tuqa’s allegations therefore remain unverified and untested as to the truth and accuracy of their contents. The defendants called Director of Corporate Services with the Ministry of Health. He had been there only since February 2008. He candidly stated that he would expect some consultation if a different position was being offered to a person.

[21] This consultation had not occurred. Rather there were attempts to have the plaintiff suspended behind his back. Doctor Tuqa did not copy his letter to the plaintiff.

[22] Doctor Tuqa had kept the plaintiff out of his office. The Ministry of Health quite incorrectly suspended him. When the PSC brought the fact that the Ministry had no powers to suspend the plaintiff, then Doctor Tuqa persuaded the Public Service Commission to lay charges against the plaintiff and to suspend him. This kept him out of being able to practice his skill. Public Service Commission did not tell the plaintiff why he was suspended. He was not shown Doctor Tuqa’s letter. The plaintiff told the court that the PSC set up a Tribunal to make inquiries but it did not come out with any report. He further told the court that on Doctor Tuqa’s complaint, his registration as Urologist was suspended by the Fiji Medical Council and that was reinstated after he took out judicial review proceedings. The Ministry of Health also reported him to police who interviewed him but no charges were laid.

[23] These facts were not challenged either in cross examination or by contradictory evidence. I accept what the plaintiff told me. It all points in one direction and that is to Doctor Tuqa who more than likely did not take kindly to the plaintiff expressing reservations about Doctor Tuqa’s request to prefer one patient over others in conducting surgery.

[24] The plaintiff was registered as a Urologist and not a Consultant Surgeon with the Fiji Medical Council. Therefore he could not practice as consultant surgeon. I find that the attempt of the Ministry of Health to change the plaintiff’s post from Consultant Urologist to Consultant Surgeon as unreasonable and not done in good faith. It did not act fairly in doing this.

[25] All Clause 10 of the Agreement entailed was change from Expatriate Conditions to Local Terms and Conditions to which I alluded earlier in the judgment. On 22nd February 2001 he was appointed for a period of three years as consultant Urologist. He could not be removed to a different post unilaterally. I find it intriguing and inexplicable the rationale and acts of the Ministry of Health. On the one hand Doctor Tuqa says that the plaintiff will never ever be allowed from ethical points of view (whatever that may be) to practice at CWM Hospital while on the other hand they attempt to appoint him as a Consultant Surgeon. How does one reconcile the two stands? If ethically he was not fit to be a doctor at CWM Hospital, then how come he was fit to be a Consultant Surgeon at CWM?

[26] There was a breach of contract by the defendants in that first they failed to offer him a Local Agreement of service within seven days of the plaintiff acquiring Fiji citizenship. Secondly the defendants also breached the agreement by trying to change his post unilaterally from Consultant Urologist to that of Consultant Surgeon.

[27] I hold that the plaintiff was entitled to a Local Contract of Service for the remainder of his term of three years till 21st February 2004 to the post of Consultant Urologist and I so declare.

[28] I appreciate that this declaration is little solace to him because the term of contract has expired. Indeed he lost out on the opportunity, which he so much longed for, to serve the ordinary citizen of Fiji at CWM Hospital. The plaintiff is now gainfully employed elsewhere earning three times as much as the Ministry paid him.

How do I compute damages for breach of contract?

[29] Ms Levaci submitted that even if I concluded that there was breach, the plaintiff is not entitled to any damages because though suspended the defendants continued to pay him full salary. Therefore he suffered no loss. Mr. Sharma on the other hand submitted that the plaintiff was unable to practice his profession from May 2002 to February 2004 that is for 22 months. He submitted that in December 2004 the High Court in a judicial review proceeding HBJ 10 of 2004 declared that the applicant ceased to be a civil servant on 5th May 2002 – see Defence Exhibit 2. Therefore he submits his suspension from 30th May 2002 until February 2004 was illegal. He also submits if the defendants had been honest then they should have refused to give him a contract and the plaintiff would have been able to work elsewhere as he later did and earn market salary of $180,000.00. He is relying on his income tax notice of assessment to reach the market salary. His loss therefore is his market salary less what the State paid him.

[30] Attractive as Mr. Sharma’s argument may be, it is not supported by judicial authority. Damages for breach of contract are usually measured by reference to the rule that:

"where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same position with respect to damages as if the contract had been performed": Robinson v. Harman - [1848] EngR 135; 154 ER 363, 365; Livingston v. Rawyards Coal Co. - [1880] UKHL 3; (1880) 5 App. Cas. 25 at 39.

[31] The plaintiff cannot profit from common law damages; he or she is only entitled to be restored to the same position as if the contract had been fully performed. If the breach has not caused the plaintiff any loss, then the damages will be nominal.

[32] The motive of the person at fault is not a relevant factor in considering the quantum of damages. This is borne out by observations of Griffith J. in Butler v. Fairclough - [1917] HCA 9; (1917) 23 CLR 78 at 89 as follows:

"The measure of damages in an action for breach of contract is well settled. It is such loss as may fairly and reasonably be considered as arising according to the usual course of things or may reasonably be supposed to have been in the contemplation of the parties at the time of making the contract as the probable result of a breach. The motive or state of mind of a person who is guilty of a breach of contract is not relevant to the question of damages for the breach, although if the contract itself were fraudulent the question of fraud might be material. A breach of contract may be innocent, even accidental or unconscious. Or it may arise from a wrong view of the obligations created by the contract. Or it may be willful, and even malicious and committed with the express intention of injuring the other party. But the measure of damages is not affected by any such considerations. A statement of claim which alleged that the defendant willfully or maliciously or fraudulently committed a breach of contract would not gain any additional effect from the vituperative epithets, which would indeed be as irrelevant to the case as the ancient averment that a person accused of an offence acted at the instigation of the devil."

[33] Considering the principles set out in above cases, the motives or intentions of Doctor Tuqa are immaterial to damages. The plaintiff had been paid his salary even though he was suspended. If the contract had been performed he would have only received his salary. So Ms Levaci is correct. He suffered no loss. Accordingly I allow the plaintiff only nominal damages for breach of contract in the sum of $1,000.00.

Reimbursement for Air tickets:

[34] The plaintiff had earned his air tickets by serving the earlier contract. A letter from the Public Service Commission dated 20th February 2001 asks the Permanent Secretary for Finance to issue an order for four tickets to cover the travel costs of the plaintiff and his family. The amount mentioned is $18,940.00. The plaintiff told the court that he paid for tickets out of his pocket. I accept his evidence. There is absolutely no reason why the defendants should not reimburse this sum to the plaintiff and with interest.

Damages for trauma and suffering:

[35] Mr. Sharma asked for these in his final submissions. They were not pleaded. In any event I cannot award the plaintiff legal costs he incurred either pursuing or defending earlier proceedings as these would be a matter for judges sitting in those cases to decide. I can only consider costs in these proceedings.

[36] Accordingly I hold that there was a breach of contract with no monetary loss. So I allow $1,000.00 as nominal damages. I also allow $18,940.00 for refund of amount spent on air tickets. I award interest at 6% per annum on this sum of $18,940.00 from 4th May 2004 (the date of issue of writ) to date of judgment i.e. 225 weeks. This comes to $4,917.00. I further grant the declaration that the plaintiff was entitled to a Local Agreement of Service contract for the position of a Consultant Urologist at CWM Hospital.

[37] I further order costs summarily fixed in the sum of $4,000.00.

Final Orders:

[38] (1) I declare that the plaintiff was entitled to a Local Agreement of
Service Contract for the position of Consultant Urologist at CWM Hospital.

(2) I enter judgment for the plaintiff against the defendants in the sum of $24,857.00 inclusive of interest till today.

(3) I order the defendants to pay costs which I fix at $4,000.00.

[Jiten Singh]
JUDGE

At Suva
10th September 2008