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Mataka v National Union of Hospitality Catering & Tourism Industries Employees [2010] FJHC 238; HBC180.2007L (7 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Action No: HBC 180 of 2007L


BETWEEN:


MIKAELE MATAKA
Plaintiff


AND:


NATIONAL UNION OF HOSPITALITY CATERING & TOURISM INDUSTRIES EMPLOYEES
Defendant


FINAL JUDGMENT


Judgment of: Inoke J.


Counsel Appearing: Mr V Mishra for the Plaintiff
Mr D Naidu for the Defendant


Solicitors: Mishra Prakash & Assocs for the Plaintiff
Pillai Naidu & Assocs for the Defendant


Dates of Hearing: 30 November 2009, 1 December 2009, 29 March 2010 and 16 April 2010
Date of Judgment: 7 July 2010


INTRODUCTION


[1] This is my judgment after trial of Mr Mataka's action for damages for breach of his employment contract, damages for defamation and other incidental relief. Mr Mataka was the former general secretary of the Defendant Union (the "Hotel Union” or "Union”). He says that he was unlawfully dismissed on 19 March 2007, humiliated and defamed in the process.

[2] The Union says the reason for his termination was that its members lost confidence in Mr Mataka's ability to look after their interests. The Union denies that it had defamed him and counter-claimed for damages caused by Mr Mataka's failure to look after its members interests.

CASE HISTORY


[3] The Writ of Summons was filed on 8 June 2007, the Defence and Counter-claim filed on 31 July 2007 and the Reply and Answer was filed on 15 August 2007. Summons for Directions were filed on 23 August 2007 and the Order made on 12 September 2007. Pre Trial steps were completed and Minutes of the Pre Trial Conference were filed on 28 January 2008. The Summons to enter the matter for trial was filed on 5 March 2008 and the matter was listed for hearing on 14 July 2008. It was further adjourned to 18 September 2008. It was only part heard by another judge and unfortunately the same judge retired so the matte came before me for hearing de novo. That hearing commenced on 30 November 2009 and adjourned to 15 December for continuation but because of the cyclone it was further adjourned to January 200 2010. The trial eventually resumed on 29 March 2010 and because of illness of the main witness for the Union, it was finally completed on 16 April 2010. After hearing evidence, Mr Mishra, counsel for the Plaintiff, had his written submission but Mr Naidu for the Union did not and asked for 14 days to file written submissions. Mr Mishra did not object so I allowed Mr Naidu the 14 days that he asked for and gave Mr Mishra 7 days thereafter to respond. Mr Naidu had not filed his submissions as he requested. It is now nearly 3 months since the hearing finished so I have decided to write and deliver my judgment rather than delay it further.

THE WRIT OF SUMMONS AND STATEMENT OF CLAIM


[4] The Plaintiff pleads in his Statement of Claim that he was employed as the Union's General Secretary pursuant to a written contract of employment dated 1 September 2006. The contract was for 4 years. He was to be paid a salary and allowances for housing entertainment and subsistence. He was also entitled to a mobile phone and motor vehicle, term life insurance, and annual and other leave entitlements.

[5] His first cause of action is breach of contract and unlawful termination. His Statement of Claim states that he was elected to the position of General Secretary by the whole Union membership in August 2006. On 19 March 2007 the Union issued him with a letter wrongfully terminating his employment. He alleges that the Union also breached his rights under the Employment Act. He was not given life insurance in breach of the contract. His solicitors wrote to the Union on 29 March 2007 refuting the termination. He says that the Union breached its own Constitution because under section 40 of the Constitution, its National Executive Committee only had powers to suspend him and if suspended he had a right of appeal to an annual or extraordinary general meeting.

[6] He gave particulars of unlawful termination as follows:

[7] The Plaintiff's second cause of action is defamation. His Statement of Claim states that he had held important and distinguished posts and status in society which included the Union's General Secretary, Chairman of a local high school board of governors and chairman of his Parish Pastoral Council. He alleges that the Union falsely wrote and published of him in its termination letter the following words:

I write in reference to the letter dated 13 March 2007 on behalf of the Executive Committee. The Committee has decided to terminate your contract with the National Union of Hotel and Catering with immediate effect.


[8] He further alleges that in the letter of 13 March 2007 addressed to the Executive Secretary, the Union falsely wrote and published of him the following words:

... our general secretary has shown inabilities to perform to the expectations of the members ... Paulini recorded the minutes of that meeting and the conduct of the GS was pathetic at the least. It is now a joke among the Management that the GS does not know what he is doing. Members expect the union to fight for them not sell them ... Members are threatening to resign from the union if the general secretary is not replaced. (The underlying is ours)


[9] In their natural and ordinary meaning, the Plaintiff says, the underlined words meant and were understood to mean and by way of innuendo the said words meant:

[10] Other defamatory publications were issued by the Union in an article in the Fiji Times newspaper published on 22 March 2007 and an article in the internet on the Fijilive website with the words:

... The union's executive committee terminated his service on Monday citing non-performance of duties ...


[11] He says that by reason of these publications, he was gravely injured in his character and reputation and has been brought into public scandal, odium and contempt, and has suffered damage. Since his dismissal, he has not been able to obtain other employment, and has suffered and continues to suffer loss and damage. He has asked for an apology but has not received one.

THE DEFENCE AND COUNTER-CLAIM


[12] The Union admits that the Plaintiff had a contract of employment with it but denies that he was entitled to the benefits he claims. The Union denies that it breached the contract. It says that the Plaintiff acted against its members' interests and had received a letter of no confidence in the Plaintiff from its affiliate members for him failing to resolve disputes amicably. The Union says that section 40 of the Union Constitution gave the Executive Committee discretion to suspend but in any event the contract was terminated pursuant to section 34(ii) following a no confidence motion against the Plaintiff. They say that the Plaintiff was told in a meeting at the Capricorn Hotel on 19 February 2007 to lift the standard of his performance within a month and failure to do so would result in his termination. They say that the Plaintiff knew of the reason for termination because he had been present in meetings when the matter was discussed, e.g., end of January 2007, special executive committee meeting of 19 February 2007 and the special executive committee meeting of 9 November 2006 at the West Motor Inn. The Union also says that the Plaintiff was not entitled to PAYE and FNPF because he was an independent contractor.

[13] As to the defamation claim, the Union denies that the words were defamatory and relies on the defence of fair comment and the Defamation Act 1971.

[14] The Union alleges breach of contract by the Plaintiff by failing to administer the affairs of the Union effectively and efficiently, failing to advise the national executive committee on important issues, acting against its members' interests and failing to uphold its Constitution. The Union claims damages for loss.

THE HEARING


The Plaintiff's evidence


PW1: Mikaele Mataka


[15] At the hearing the Plaintiff withdrew his claim for specific performance of the contract but maintained his claim for damages for breach and defamation.

[16] Mr Mataka gave evidence. He is 50 years old. He started work in 1981 as a primary school teacher for about 23 years. He resigned in October 2003 as a teacher and started work as the Assistant General Secretary for the Fiji Sugar and General Workers Union in that year, under Felix Anthony who was the General Secretary of that Union. When the National General Secretary to the Defendant Union died in January 2006, he was approached and he agreed to stand for the post that was left vacant. The elections took place in August 2006 and he was elected. He signed the contract of employment with the Union on 1 September 2006. He was given the office keys on that weekend and he started work on 4 September 2006 in the Nadi office. The contract is agreed document number 2. He diarised[1] for that day the duties which he was to perform.

[17] He said his working relationship was good for 3 to 4 months before they started complaining about his performance. Because of the national crisis in December 2006, tourism numbers decreased and most of the unionised hotels (which he referred to as "properties”) faced problems. Some had 50% to 60% reduction in occupancies. There were some two to three thousand members affected. He had meetings with some of the properties including Accor, Mocambo, TradeWinds and Mana Island. He renegotiated some employment conditions and some reinstated. He said he was criticised because he was putting in place cost cutting measures such as the use of the telephones, electricity and expenses of the executive committee in accordance with the Union Constitution. He stopped expenses not authorised under the Constitution. He also stopped preparation of meals and drinking in the office and using members' funds. This was when they complained about his reviews to the executive Secretary, Felix Anthony.

[18] He gave as an example Mana Island where he was able to negotiate the re-instatement of 4 workers without industrial action. These workers remained in employment but place somewhere else in the resort.

[19] He confirmed receiving the Union's letter of 19 March 2007[2] to him. It was signed by the Union President, Liviana Qoro. The letter said:

I write in reference to the letter dated 13 March 2007 on behalf of the Executive Committee. The committee has decided to terminate your contract with the National Union of hotel and catering with immediate effect.


You are hereby requested to return all union property to the president in good order.


I would like to thank you for your services to the union.


Yours sincerely

[signed Liviana Qoro, President]


Witness

[signed Paulini Disauca]


[20] He also confirmed having knowledge of the Union letter of 13 March 2007. That letter was written and signed by the Union President, Vice President and 10 Executive Committee members to Felix Anthony bringing to his attention "the various concerns shown by executives and the representatives of some properties”. The letter went on:

It is unfortunate to inform you that we are not happy with the manner in which our general secretary has been performing. Our meeting on 19 February had decided that one more moth was to be given so that we can judge his performance, in addition to your commitment to our union to help us in the areas that our general secretary has shown inabilities to perform to the expectation of the members.


We are aware of your busy schedule and accept that you will not have the time to resolve outstanding and new issues that arise due to the general secretary's capabilities or the lack of it.


The time has come in which we as executives must make decisions to abide with the collective wishes of our members. Complaints from our members have never stopped. Some have raised the issue of getting Mr Attar Singh to help us since our general secretary seem(s) to be working with management in some of the recent decision(s) he has made.


One typical example is his agreement with Accor Management regarding Pauline. The management decided that Pauline was highly paid and should not receive the salary increase that was signed to be paid across the board. Pauline is a member of the executive of the union and the management was victimizing her. Instead of defending her general secretary agreed with management on her being victimized.


Paulini recorded the minutes of that meeting and the conduct of the GS was pathetic at the least. It is now a joke among the Management that the GS does not know what he is doing.


Members expect the union to fight for them not sell them. It seems that giving him one month to judge his performance has not been seriously considered by him as he continues to disappoint members.


Members are threatening to resign from the union if the general secretary is not replaced.


We ask your understanding of our plight.


The general secretary must be removed by the 19th March, as we no longer have any confidence in him.


We thank your union for the time he has been seconded to us but we feel he is in need of more training so that he can serve members to the best of members' interest(s). Our members expect that the general secretary is someone who is experienced in the field of trade union work. It is not fair for the general secretary to accept the position while he knows that he is not ready for the task.


Some executives have spoken to Mr Urai who has indicated his willingness to assist us.


For the sake of our union we must make decision that will improve the services our members require and we know that you will agree to our appointment of Mr Urai as interim GS.


[21] Mr Mataka denied that he agreed to the victimisation of Paulini Disauca as alleged in the letter. He said he disagreed with the hotel management action and was in the process of taking it up with them when he was terminated. He also said that he had been a unionist since he started work in 1981. He was secretary of the Fiji Teachers Association, an Executive member of the Fijian Teachers Association and assistant general secretary of the Fiji Sugar and General Workers Union for 3 years. He said he did his utmost best for his members. Not all the executive committee members signed the letter.

[22] On 4 April 2007, the Union President wrote[3] to Mr Mataka's solicitors and said:

I acknowledge receipt of your correspondence.


In all its intent and purpose the contract entered on the 1st day of September 2006 was have continued if Mr Mataka had performed in his capacity as General Secretary.


Mr Mataka is well aware of the reasons he was asked to step down.


One month after his election, the Executives raised a letter of no confidence in Mr Mataka and had asked him to resign.


The Executive Secretary intervened and requested the Executives to five Mr Mataka more time to prove himself.


A meeting of Executives was held on the 19th of February at the Capricorn Hotel where Mr Mataka's inability to perform was seriously discussed and a unanimous decision reached by Executives for his removal.


It was the Executive Committee's respect of the Executive Secretary that another month was given where his performance was hoped to have improved.


With this understanding on both parties the Executives decided to seek his resignation when it was seen that his performance did not improve and members were threatening to resign and join a rival union.


Mr Mataka was told of the reason to resign.


He opted to be given a termination letter with which we abided to his request.


In terms of your advise the following is our reply:


(a) We have not breached any contract as contracts should be respected based on performance. Mr Mataka's performance was not to the expectation of the members of the union.

(b) Your client's performance or the lack of it cannot warrant any indemnifying of costs.

(c) He should apologise to the members for his role in working more towards the interests of management than the membership.

(d) We have no more business to do with your client. We have not made any allegations, we merely reiterated statements of facts. If need be then we can get individuals who were directly affected by Mr Mataka's non-performance.

[23] Mr Mataka denied that there was a letter of no confidence in him issued and that he was asked to resign one month after being elected. He denied that he asked for a termination letter. He said he told the executives to wait for the Executive Secretary who was overseas at the time but they did not. He denies being incompetent.

[24] On 31 May 2007 the Union President, Liviana Qoro, wrote to the Registrar of Trade Unions as follows:

I herein write to inform my resignation from employment from Malolo Island Resort (copy attached). As per our previous communication to your office I would be the Acting General Secretary of the Union till further Notice and the only person authorised to sign documents for the union. The position of the Genera Secretary remains in dispute after the illegal termination of Mr Mikaele Mataka.


The position of the National President of the union remains vacant after my resignation. After an extra ordinary AGM which is due to be convened after a few moths the Union head office will advise your office of the necessary changes.


[25] Ms Qoro resigned from Malolo Island Resort and took over from Mr Mataka on 31 May 2007. Her letter of resignation is dated the same date. Mr Mataka said that Ms Qoro never discussed with him the opportunities that she wanted him to pursue with the Union. He said he was not invited to the general meeting of the Union and was never asked to appear before the executive committee.

[26] He worked over and above his contracted working hours. He was given a car and a mobile phone, subsistence and entertainment allowance and salary up to 19 March 2007. He was not paid for FNPF or PAYE and was not sure whether he received a housing allowance.

[27] He was unemployed for 3 weeks then started looking for work. He did not apply for re-instatement. He was very upset when he got the letter of termination and did not want to go back because of the way he had been treated. The news papers made it worse. He said friends and many other people and relations called him. They were upset themselves and surprised about the allegations in the papers. He was chairman of Our Lady of Perpetual Help Parish Pastoral Council and a board member of the St Thomas High School in Lautoka. His colleagues could not believe this had happened to him.

[28] His previous position was Secretary for the Fiji General Workers Union for which he was paid $30,000, some $8,000 to $10,000 less than what he was paid by the Hotel Union.

[29] In cross examination he said he was assistant head teacher then head teacher of a school in Yasawa for 5 years before he resigned as a teacher in October 2003. He said the reason he resigned was he got a better offer from another union. He confirmed that he got an overwhelming majority when he stood for the general secretary position in the Union.

[30] He explained the duties of assistant general secretary, a position which he held prior to joining the Union, as attending to grievances, recruiting new members and negotiating logs of claims and working generally under the general secretary. He did the preparation work and the general secretary did the arbitration. He had not done any arbitration himself. He held the position of assistant general secretary of the FSGWU from October 2003 to September 2006. He went back to that union three weeks after his termination and took up his old posit with the same salary. He was taken back by the General Secretary, Felix Anthony. He did not have to apply for the position. Before he left FSGWU Felix Anthony gave him leave without pay for an indefinite period. He now gets paid $33,000. He gets a mobile phone and use of a motor vehicle, separate office, insurance but no entertainment or housing allowance. He has the same life insurance cover for $50,000 as he had with the Defendant Union.

[31] As for the Union letter of 13 March 2007, he agreed that only two executive members did not sign it but his counsel conceded that even though not all members signed, they all supported his client's dismissal.

[32] Mr Mataka was shown the minutes of the Union's 24th annual general meeting held on 11 May 2007 which confirmed that his appointment was terminated by the executive committee for his non-performance. The minutes also recorded that before termination, the executive committee after noting there was no improvement in Mr Mataka's performance, "collectively decided to suspend him pending further discussion” with Felix Anthony. The minutes also state that Mr Mataka requested that he be given a termination letter and he was then issued with the letter in accordance with his wishes. The decision was approved by the general meeting. He confirmed that Felix Anthony asked for him to be given more time so he could be assisted to improve his performance. Mr Mataka said he did not go to that AGM because he was not a hotel worker. He saw no point in writing or talking to the same people that had terminated him.

[33] When asked about the meeting with the Union President on the day he was terminated he said she came in with Ms Paulini and asked him to vacate the seat. His evidence was: "I said (to the Union President): wait for Felix Anthony. She said she will bring villagers to remove me and made other threats. I wanted to protect the reputation of the Union. There was no letter at this time. I didn't want a scene. So I asked for a termination letter”.

[34] He confirmed that he negotiated the re-instatement of the Mana Island workers who were suspended or terminated for attending an unauthorised stop work meeting. This followed a letter written to him by Mana Island Resort on 25 October 2006. He said the workers were not happy with what he had negotiated. He was told by Felix Anthony that these workers wrote a letter of no confidence in November 2006 following this incident but was not given a copy of it. The letter spoke of the general secretary of being friendly with the hotel management and of him having no "professionalism and guts”.

[35] He attended a special executive meeting on 9 November 2006 at the West Motor Inn. He was shown a typed up copy of the Minutes.[4] The Minutes refer to a letter of no confidence on the general secretary. When asked to say a few words on it, the Minutes recorded that: "The GS advised everyone present that he is here on a 1 year secondment from the FSGWU and he is not hard up for this job, and if we want to remove him he can always go back to FSGWU”. He agreed he did say that.

[36] That meeting was followed by a meeting at the end of January 2007 between the Union President, Mr Mataka and the Executive Secretary, Felix Anthony. Mr Mataka confirmed that the Minutes[5] accurately recorded what was said in the meeting. The Minutes recorded the dissatisfaction of the executive and the members generally with his performance. They all agreed to arrange a special executive meeting on 19 February 2007.

[37] That meeting was held at the Capricorn Hotel as scheduled on 19 February 2007. Both he and Mr Anthony were present with the Union President and the executive members. The special agenda for the meeting was his performance as general secretary. He confirmed that the Minutes accurately record what was said in the meeting. The Minutes recorded the several issues and concerns from the various branches and properties concerning him. He agreed that the members were not happy with him. The Minutes also recorded the threat of members joining a rival union if the general secretary was not removed. The meeting agreed to accede to Mr Anthony's request to give him more time to prove himself. They agreed to "give him another 1 month to perform and failure to comply with this, will leave us with no option but to terminate his services from the Union”.

[38] He gave evidence of instances where he refused to grant members request for payment from Union funds because he was not authorised under the Union's Constitution to do so. He said he was told to be careful with Union funds and that was what he did.

[39] He confirmed receiving the letter of termination of 19 March 2007.

[40] The Fiji Times article[6] on his sacking was published 3 days later on 22 March 2007. He did not know who gave the information to the newspaper.

[41] He did not agree that he did not suffer any loss. He does not get as much pay now. He said he was not given an option. He agreed that Mr Anthony was his mentor and that it was he who suggested to him to take over the position after the previous general secretary died. He had a lot of respect for Mr Anthony he said.

[42] In re-examination he gave more details of what happened when he was terminated. He said he had his own office in the building owned by the Union. The Union President, Ms Qoro, and Ms Paulini knocked and opened the door to his office and sat down and told him that he had to leave immediately. They were very forceful. They said: "You get out now or I get villagers to come and get you.” He said he felt threatened and very upset. He tried to calm them down. His evidence was: "I did not ask to be terminated, but if that's what they want then give me a termination letter”. The letter was typed up by his secretary in his office. He denied being friendly with management.

PW2: Felix Anthony


[43] Mr Anthony is a trade unionist. He is the General Secretary of the FSGWU. He was also the executive secretary of the Hotel Union on an advisory capacity at the time. He has known Mr Mataka for many years. Mr Mataka was his assistant before being elected to the position with the Defendant Union sometime in 2006. Mr Mataka's performance was satisfactory according to Mr Anthony and he had no problems working with him. In his opinion, Mr Mataka was experienced in union matters. Mr Mataka handled many disputes although it was "difficult to give specific examples”. Mr Mataka was seconded initially to the Hotel Union as general secretary with the intention that he would eventually leave FSGWU. After the Hotel Union posting Mr Mataka came to see him and he offered his position back. Mr Anthony's role was to pursue all workers interest in affiliates. The Hotel Union is an affiliate of FTUC. Sometimes he dealt with differences between affiliates. He was asked by the national executive of the Union for an administrator and he gave them advice. He was aware that Mr Mataka was elected according to s 60(a) of the Union Constitution and he worked closely with the Union whilst Mr Mataka held the post of general secretary. He had seen Mr Mataka's contract of employment before. There was nothing unusual about it. He also knows the Union President, Ms Liviana Qoro. There were some concerns raised with him about Mr Mataka but he believed they were resolved.

[44] He said most sectors were affected by the 2006 "coup” but more so in the tourism industry. The hotels were affected by the downturn in tourism so they reduced working hours and there was more "casualisation” and reduction in manpower. That was common knowledge. It was a very challenging time. He played an advisory role in the Union's issues. He attended all their executive meetings, one of which was to discuss Mr Mataka's performance. He only knew of his termination after it happened. He was overseas at the time. He was not consulted. He had attended with Mr Mataka in meetings with workers and did not see any problems with him.

[45] Mr Mataka's management style was different from that of his predecessor, particularly with finances. The Union was in a poor financial position before Mr Mataka started. Mr Anthony said he found this out after the previous general secretary had died. He was asked to get the Union back on its feet.

[46] He attended with Mr Mataka when Ms Paulini had problems with Accor. The matter was satisfactorily resolved according to him. He said he did not believe that at any time Mr Mataka agreed with hotel management that his members be victimised.

[47] Mr Anthony was shown the minutes of the meeting of 19 February 2007[7]. He said a lot more took place than was recorded. He said he spoke at length and so did Mr Mataka. He thought Mr Mataka needed more time. It was a new industry for him and it was difficult times. Those were the reasons he asked for Mr Mataka to be given more time.

[48] Mr Mataka saw him about the newspaper article of 22 March 2007. Mr Mataka was very disturbed and insulted by the article because of the manner in which he was sacked. He was not in agreement with the sacking. He was not aware of any particular instance that Mr Mataka had not performed because he was not involved in the day to day operations. He could not recall any notice from the general membership threatening to withdraw if Mr Mataka did not resign.

[49] In cross examination, Mr Anthony said there were many informal discussions with some Union executives and the President which were not recorded. Mr Mataka was not a family friend at the time. He was more a colleague. He recommended Mr Mataka. There was no time set for Mr Mataka's secondment. It was and administrative decision by the FSGWU to release Mr Mataka to the Hotel Union. He cannot recall that it was for one year or a fixed time. The reason for secondment rather than retirement of Mr Mataka from the FSGWU was that Mr Mataka was involved in some sugar industry issues and Mr Anthony thought that FSGWU might still need him.

[50] As for the January 2007 meeting he was not sure of it but recalled there was an informal meeting in his office but no minutes were taken. It was amicable. He was shown the Minutes of a January 2007[8] meeting. He did not recall telling Mr Mataka to follow up on matters and be in constant touch with the in house committee which he had failed to do, as recorded in the Minutes. He could not recall asking for an executive meeting because normally he was the one to request it.

[51] As for the meeting of 19 February 2007 he said he did not recall asking the executive to give Mr Mataka another chance to perform. He did not recall making a plea for him. What he said was he would assist Mr Mataka in the more serious issues. There were some pressing issues so he asked for one month to sort them out then review.

[52] As for the Mana Island dispute, he said they have structures within the unions to resolve disputes. I they could not then the matter is reported to him and he then resolved them. If all members were vitimised then he got involved. But he had not come across that before. He said they do not jump into disputes with hotel management directly. He did not do deals either. He said this was abnormal times because this was happening all over the place at once, i.e., casualisation, reduction of hours, etc. He did not agree that the Mana Island meeting was only a stop work meeting. Mr Anthony said it was a simplification of what was happening. Mana had many issues. His only input in this was asking Mr Mataka when this matter came to light whether the meeting was authorised. Mr Mataka's answer was that the meeting was not and he was not told. He told him that this was not acceptable and not legal.

[53] As for the other specific issues, he only recalled the Tradewinds issue which Mr Mataka resolved satisfactorily according to Mr Anthony. The Mocambo issue was not a hotel management issue but because of low occupancy, they decided to renovate.

[54] He did not agree that Mr Mataka's appointment as general secretary was a promotion. He would not say that he was Mr Mataka's mentor. He was appointed executive secretary after the previous general manager died until Mr Mataka left and Daniel Urai took up the post. The position of executive secretary was set up because there was no one to run the union at the time.

THE UNION'S EVIDENCE


DW 1: Ms Liviana Qoro


[55] Ms Liviana Qoro gave evidence for the Union. She was the national President of the Hotel Union at the time. She was elected to the post in the 25 August 2006 Union elections. She was an active in house committee member as well. It was not a paid position. She held the post till 19 February 2007 and Mereoni took over later in that year. She was employed on Malolo Island when she was Union President.

[56] On 31 May 2007 she wrote a letter of resignation[9] to Malolo Island Resort for her resignation to be effective from that date. She did not stand for the post again because she became a full time union employee and not a hotel employee.

[57] She confirmed that the post of executive secretary was created in the Union for Mr Felix Anthony. She said Mr Mataka was recommended by him. The Union had trust in Mr Anthony's recommendation. She signed Mr Mataka's contract of employment[10] on behalf of the Union. She did not know Mr Mataka very well before his appointment, neither was she aware of his work performance at other unions.

[58] She was referred to the Minutes of the special executive meeting of 9 November 2006 at the West Motor Inn. She took those Minutes down even though according to their Constitution, it was the general secretary that was to do that. She took the Minutes as Chairperson. The Minutes were taken in hand written form then typed up on the next day. She signed these Minutes. She said the members themselves threatened to join a rival union, FICTU, and 50% of the members were against Mr Mataka.

[59] She also took down the Minutes of the January 2007 meeting and signed the typed up copy[11]. The Minutes were an accurate record of what was said. It was a special meeting between her, Mr Anthony and Mr Mataka, to discuss Mr Mataka's "non-performance”. She said: "He contributed little because I made sure that members' concerns were made known”. They all agreed to have a committee meeting on 19 February.

[60] She organised that special executive committee meeting that was held on 19 February 2007 at the Capricorn Hotel. She was the chairperson and she took down the Minutes. The Minutes[12] were signed by her and accurately recorded what was discussed. The executive committee consisted of 12 members not including the general and the executive secretaries. Only one executive member did not attend the meeting. She disagreed with Felix Anthony in that she said he did ask the executives to give Mr Mataka another chance to prove himself. She said there was heated argument about giving Mr Mataka extra time. They could not afford to give him extra time according to her. She said he was incompetent to do union work. He was not visiting properties and discussing problems and did not register any disputes.

[61] She said it was Mr Mataka who opted for a termination letter. She said they wanted to wait for Mr Anthony to return. They went into his office "specifically to ask him to step down”. "His response was that he was not going to leave. He was the general secretary and was not going to leave. But if they wished him to do so we can terminate him”. The termination letter was typed up in his office by a secretary and signed by Ms Qoro and witnessed by Ms Paulini Disauca. Mr Mataka's response after receiving the letter was to go to the shop and pick up boxes to pack his stuff. She denied that she threatened or abused him to leave.

[62] She did not go to Mana Island with Felix Anthony until after October 2006. That was after the letter of 26 October 2006[13] was written by Mana Island Resort to the general secretary. The trip was to meet with disgruntled members.

[63] She did not act as general secretary after Mr Mataka was sacked. Daniel Urai was acting general secretary who later became general secretary. She denied writing a letter to the Registrar of Trade Unions on 31 May 2007[14] saying that she was to be acting in that position till further notice and that the position of President remained vacant after she resigned. She was still looking for the original. The matter was reported to the Police but nothing came of it. She did not know who wrote the letter. She remained Union President until she resigned later before the next elections because she was no longer a hotel worker.

[64] In respect of the newspaper article, she confirmed that she said what was reported in it. She did not ring the newspaper. One of the other executives must have rung.

[65] In cross examination Ms Qoro agreed that the signature in the letter of 31 May 2007 to the Registrar of Trade Unions was similar to hers. She prepared the letter of 13 March 2007[15] to Felix Anthony which she asked her secretary to date by hand. That letter said "the general secretary must be removed by the 19th March as we no longer have any confidence in him”. She agreed that she had made up her mind prior to 19 March 2007.

[66] She denied that it was her intention to give Mr Mataka a termination letter. It was only after he asked for a termination letter that they gave him his letter. It was her intention to wait for Felix Anthony to return. She denied saying that she would get villagers. She said the "cry of the membership” was to terminate by 19 March 2007. She thought she had the right to terminate because of the rights of the membership.

[67] She said the Union lost all its documents in the Nadi floods in January 2009 that was why she did not have any documents with her. When asked why this had not been revealed earlier she said it was because she was not aware that the documents were lost. She could not produce the original minutes of executive meetings. It was put to her that Daniel Urai was already in the building ready to take over from Mr Mataka. She agreed. She drafted and signed the termination letter.

DW 2: Shahida Zaitoon


[68] Ms Zaitoon's evidence was interposed with Ms Qoro's cross examination because Ms Qoro became ill on the next court fixture. Ms Zaitoon was the accounts officer and personal secretary for the FSGWU and personal assistance to Mr Anthony. She looked after salaries and did the wages. She knew Mr Mataka. He was working as assistant general secretary for FSGWU before August 2006. He was earning an annual gross salary of $30,000 when he started. His entitlements included a vehicle, fuel and mobile phone, insurance for workers comp and term life insurance for $25,000, annual leave of 15 working days and sick leave of 10 working days. Mr Mataka left to join the Hotel Union. He came back to FSGWU on 3 April 2007 on the same position and benefits as before he left.

[69] In cross examination she confirmed that Mr Mataka is not entitled to a housing allowance. If he did not take sick leave in the year then he is paid for it at the end of the year. He is entitled to 3 days bereavement leave and long service leave but she did not know how for long. The union pays for the service of the vehicle. Mr Mataka's salary now is $32,000.

THE COURT'S FINDINGS ON THE EVIDENCE: BREACH OF CONTRACT


[70] There is no doubt that Ms Qoro had Mr Mataka in her sights soon after the August 2006 elections. I accept Mr Mataka's evidence that he was not liked because he stopped or did not allow some personal expenses for members to be taken out of Union funds because he considered they were not allowed under the Union Constitution.

[71] But I do not accept that he was incompetent as alleged by Ms Qoro. I agree with Mr Mishra that despite her inexperience as a union official at national level, she seemed to have had a very high opinion of her capability and low one of Mr Mataka's abilities. Her views were at odds with those of Mr Anthony's. I would prefer the evidence of Mr Anthony. Mr Mataka's experience as a unionist was far more extensive than that of Ms Qoro.

[72] It is true that the executives and the members may not have been happy with how Mr Mataka approached disputes or the results that he obtained, but that did not necessarily mean that he was incompetent. I accept that the hotels and the workers encountered difficult times in late 2006 when Mr Mataka took up the post. That would have given him limited room for negotiation with the hotels for his members. I think the evidence from the Union, who has the onus of proof on this issue, fell far short of proving incompetence on the part of Mr Mataka.

[73] Ms Qoro came across as a person with a strong and aggressive personality and I think her personality influenced not only the executives but also the Union members.

[74] I think she was determined to remove Mr Mataka before the month was up when she visited his office on 19 March 2007. It only needed Mr Mataka to suggest that he be given a termination letter before she acted. Having heard the witnesses I have come to the view that Ms Qoro (and others) did not like the fact that Mr Mataka did things his own way and differently from the previous general secretary.

[75] For these reasons, I find that Mr Mataka's termination was in bad faith and not because of his incompetence.

[76] However, I do not accept Mr Mishra's submission that his client was not given due process before his dismissal. What happened in my opinion was that the executives, led by Ms Qoro, were not prepared to accept his explanations or give him further time.

[77] Does this amount to a breach of contract and if so does it entitle Mr Mataka to damages?

THE CONTRACT PROVISIONS


[78] The contract of employment did not expressly provide for termination.

[79] Instead, the Union Constitution provided in clause 40:

The National Executive Committee may suspend for a period not exceeding three months and/or recommend for dismissal any officer for neglect of duty, dishonesty, incompetence, refusal to carry out the decisions of the National Executive Committee, or for any other reason which it deems good and sufficient and in the interests of the union. Any officer who is suspended or who is recommended for dismissal shall have the right of appeal to the Annual or to an Extraordinary General Meeting.


[80] This provision must be taken to have been imported into the contract of employment. The Union is the employer and is bound by its own Constitution which gave Mr Mataka certain rights as an officer, in particular clause 40.

[81] It is clear that the executive has no power to terminate the contract. It only had the power to recommend termination. The power to terminate rests with the general meeting. The executive having purported to terminate Mr Mataka's contract was therefore in breach. Clause 34 (ii) had no application because there was no general meeting vote of no confidence before hand.

ENTITLEMENT TO DAMAGES FOR BREACH


[82] The breach led directly to the loss of his job so he is entitled to damages directly flowing from it.

[83] Mr Mataka was unemployed for 2 weeks. He is therefore entitled to loss of salary for that time. I make no allowance for other benefits for this time. His gross annual salary was $35,000. Although the contract provided for an increase to $40,000 that was subject to the Union's financial position improving. It is too speculative for me to accept that Mr Mataka's salary would have increased to this amount. I therefore calculate his entitlement to be $35,000 x 2/52 = $1,346.

[84] He is also entitled to loss of salary for the remainder of the 4 years that he would have been employed by the Hotel Union. He had already been working for about half a year so I take the balance as 3.5 years. His new salary is $32,000 pa but I will use his starting salary with the FSGWU of $30,000 immediately after his termination which is $5,000 less. So his entitlement is $5,000 x 3.5 = $17,500.

[85] I make no allowances for leave, mobile phone, insurance and motor vehicle entitlements because he now gets those benefits from his new employer.

[86] In his submissions Mr Mishra asked for damages for the humiliating way in which Mr Mataka was forced out of office under the principle in Central Manufacturing Company Ltd v Kant [2003] FJSC 5; CBV0010.2002 (24 October 2003). The Supreme Court[16] discussed the law and held it to be as follows:

This raised for consideration the question whether Addis v Gramophone Company Limited [1909] AC 488, a case long seen as authority for the proposition that damages arising out of the manner of dismissal cannot be recovered, was still good law. The Court observed that the authority of Addis had been eroded in a number of jurisdictions, including New Zealand, but that it was unnecessary to discuss those authorities since the whole question had recently been analysed in depth in Johnson v Unisys Ltd [2003] 1 AC 518. After analysing that judgment in some detail, the Court concluded that Addis no longer stood in the way of the recovery of damages arising from the breach of an implied term of a contract of employment, even though the breach arose from the manner of dismissal.

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.

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The alternative implied term found to exist by the Court of Appeal was that of procedural fairness. That formulation also gives rise to difficulty. An 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: Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1581 per Lord Reid.


It does not follow that there is no implied term requiring an employer to deal fairly with an employee when dismissing that employee. In Johnson, Lord Millett observed at 550:


"But the courts might well have developed the law in a different way by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of his dismissal. They could not, of course, have overridden any express terms of the contract or have held the dismissal itself to be invalid. As in the case of the statutory right, employers would probably have responded by introducing their own procedures of complaint and warning before eventual dismissal. But there would have been this difference: they would surely have taken care to incorporate such procedures into the contract of employment so that an employee who was dismissed in accordance with the procedure laid down in his contract could not claim damages for breach of an implied term.”


Lord Hoffmann expressed similar views when he said, at 542, that if there had been no relevant legislation in the area of employment and dismissal, he would have regarded the question of whether judges should develop the law by implying a suitable term into the contract as "finely balanced”. His Lordship also observed at 540 that there was much to be said for the approach taken by McLachlin J in Wallace that the courts could imply an obligation to exercise the power of dismissal in good faith. That did not mean that the employer could not dismiss without cause. The contract entitled him to do so. But in so doing, he should be honest with the employee and refrain from untruthful, unfair, or insensitive conduct. He should recognise that an employee losing his or her job was exceptionally vulnerable, and behave accordingly.


Lord Steyn considered that it was no longer right to equate a contract of employment with commercial contracts. One possible way of describing a contract of employment in modern terms was as a "relational contract”. He considered that the implied obligation of trust and confidence could also be described as "an employer's obligation of fair dealing”. He concluded at 536 that:


"... the employer may become liable in damages if he acts in breach of the independent implied obligation by dismissing the employee in a harsh and humiliating manner.”


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. Each case must, of course, depend upon its own particular facts. However, where, as in the present case, the dismissal is carried out in a manner that is unnecessarily humiliating and distressing, there is no reason in principle why a breach of this implied term should not be found to have occurred.


This takes us to the next issue. Does Addis mean that where an employee is wrongfully dismissed, the damages for the dismissal cannot include compensation for the manner in which it occurred, or 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?


In Johnson Lord Hoffmann commenis analysis ysis of Addis by reviewing the development of the law relating to employment contracts. Initially, they were regarded as any other contracts. Parties were free to negotiate terms, and nothing additioditional could be implied thereto. His Lordship said at 539:


"But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person's employmenusually one of the most important things in his or her life life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament....


"The contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment. The most far reaching is the implied term of trust and confidence. But there have been others.”


His Lordship continued by noting that employment law required a balancing of the interests of employers and employees, with proper regard not only to the individual dignity and worth of the employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which this balance should be struck was a matter for democratic decision. The development of the common law by the judges played a subsidiary role. Their traditional function was to adapt and modernise the common law. However, such developments had to be consistent with legislative policy, as expressed in statutes.


His Lordship recognised that Unisys was expressly entitled to terminate Mr Johnson'soyment on four weer weeks notice without any reason, and "to make payment in lieu of notice”. It had exercised that right.he face of that express provision, it was difficult to imply a term that the company shouldhould not do so except for some good cause, and after giving Mr Johnsreasonable opportunityunity to demonstrate that no such cause existed.


Lord Hoffmann then referred to Mahmud where Lord Steyn had sait the true rate ratio of Addis was that damages were recoverable only for loss caused by breach of contract, not for loss caused by the manner of its breach. Lord Hoffmann wn to hat where thre the onle only cause of action is wrongful dismissal, Addis would hold that nothing could be recovered for l distress or damage to reputation. On the other hand, if such damage were loss flowing frog from a breach of another implied term of the contract, Addis would not prevent recovery of appropriate damages.


His Lordship then considered the manifest evidentiary problems that confronted an employee in such a case. Not only would there likely be difficulty in proving causation generally, Mr Jn would struggle to prove rove the distinction between psychological injury arising from the dismissal itself (for which damages were not recoverable), and psychological injury arising from the manner of the dismissal (for which damages might now be recoverable). Another problem was the prospect of open-ended liability, which might inhibit the future of psychologically fragile personnel.


His Lordship noted that Parliament had conferred upon the relevant industrial tribunals broad jurisdiction to deal justly and equitably with the matters about which Mr Johnson complained. He seed see no reason why in an appropriate case compensation awarded by a tribunal should not include compensation for distress, iation, damage to reputation in the community, or to family life. But the question to be asbe asked in this case was whether the courts should develop the common law to give a parallel remedy that was not subject to the kind of limitations imposed by statute. He concluded at 544:


"My Lords, I do not think that it is a proper exercise of the judicial function of the House to take such a step...


"For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be contrary to the evident intention of Parliament...”


Once again, Lord Steyn approache matter some somewhat differently. His Lordship commenced his speech by querying whether the headnote in Addis correctly reflected the ratio decidendi of the case. He doubted whether Addis had held that special damages could never be recovered for loss resulting from the manner of dismissal. Only Lord Loreburn LC had stated the l those tose terms. The other members of the House of Lords in the majority had, by and large, confined themselves to the nouniarects of the case. In Lord Steyn'imation, only one of e of the Law Lords who who sat isat in the case could realistically be regarded as having evinced a clear endorsement of Lord Loreburn's oation so far asar as it ruled out special damages for loss of employment prospects flowing from the manner of a wrongful dismissal. In Lord Steyn's view, it waserably ably clear” the ratio of Addis did> did not preclude the recovery of special damages flowing from the manner of a wrongful dismissal.

Nevertheless, his Lordship said that if, either he r he was wrong, or Lord Loreburn's aph was correct,rect, the question remained: should Addis be overruled? In answer, Lord Steid at 531:



"Addis's case was decin the heyday of a judicial philosophy of market individualidualism in respect of what was then called the law of master and servant.idea that in the eyes of thof the law the position of a servant was a subordinate one seemed natural and inevitable. And in Addis's case it may have been the background to the adoption of a special restrictive rule denying in all cases to employees the right to recover financial loss which naturally flowed from the manner of their wrongful dismissal.”


His Lordship reflected upon the "fundamental change in legal culture” that had taken place since Addis was decided in 1909. Like Lord Hoffmann, he said that one of the law's most significant contributions to the evolution of employment contracts was the development of the obligation of mutual trust and confidence and its unanimous and unequivocal endorsement in Mahmud. As indicated earlier, he said that an employment contract was no longer to be regarded simply as a commercial contract but rather, as a "relational contract”. If, contrary to his view, the headnote in Addis correctly stated the ratio of that case, he would now be willing to depart from it. This would not be a "particularly bold” step. Indeed, he expressed the view that the House had already taken that step in Mahmud.


Lord Steyn then turned to the existence of the legislative scheme that operated in the United Kingdom. In contrast to Lord Hoffmhe considered that thet theme did not of itself indicate that the common law could not confer any kind of protection. ion. The scheme in question was "...always capable of meeting the requirements of cases at the lower ower end of seriousness.” A person's serious loss of employment prospects owing to the manner in which he or she was dismissed had never really been catered for by the relevant legislation. As for Parliament's intention, his Lordship said at 535 that it could not "...have assumed the common law as reflected in Addis's case to be set in stone and incapable of principled development.”


Turning to the implied obligation of mutual trust and confidence, Lord Steyn said that it didconflconflict with any express term in Mr Johnson's contract. Thlied lied obligation was one imposed by law. He said:


"It is not a term implied in fact. It is an oveing otion implied by l by law as an incident of the contract of employment. It can also be descrdescribed as a legal obligation imposed by law: Treitel, The Law of Contract, p 190. It requires at least express words or a necessary implication to displace it or to cut down its scope.”


As noted earlier, departing from the other members of the House of Lords, Lord Steyn said that the implied obligation was not confined to the subsistence of an employment relationship and that it could apply in the context of a dismissal. The argument in support of the contrary view was described as a "legalistic point”. It ignored the purpose of the obligation, which was to ensure fair dealing between employer and employee, a requirement that was as important in relation to dismissal as at any other stage of the employment relationship.


His Lordship rejected what he described as the "floodgates” argument that if Mr Johnson's appeal were to succeed, virtually every dismissal case could include a claim based on the manner of dismissal. He said that this prediction was to too alarmist. In Mahmud,as held that the mere fact of dismissal could not of itselftself handicap an employee in the labour market. On the other hand, a dismissal carried out in a harsh and oppressive manner that inflicted unnecessary and substantial financial damage on the employee ought, in principle, to be compensable.


For these reasons, Lord Steyn held that Mr Johnson had a reasonabuse ouse of action based upon the implied obligation of mutual trust and confidence. However, he held that there were formidableentiary difficulties in the way of Mr Johnson succeeding. These eelated to causation aion and remoteness. Upon that basis alone, the claim would inevitably fail at trial. His Lordship therefore agreed that the appeal should be dismissed.


Addis in Australia was discussed by the High Court in Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344. A passenger on a cruise ship suffered injury when the vessel sank ten days into a fourteen-day cruise. In her action against the ship owner for damages for breach of contract, she was awarded damages which included a refund of the entire fare, and compensation for disappointment and distress. A majority of the Court held that damages for disappointment and distress were not recoverable unless they proceeded from physical inconvenience caused by the breach, or unless the contract was one the object of which was to provide enjoyment, relaxation or freedom from molestation.


Mason CJussed the effect of AdAddis at 361. His Honour noted that the same approach had been adopted in the Unitates (Southern Express Co v Byers [1916] USSC 106; (1915), 240 US 612) and in Canada (Vorvis v Insv Insurance Corporation of British Columbia [1989] 1 SCR 1085 with strong dissenting judgments of Wilson and L'Heureux-Dubé JJ). However, Addis had not been followed in New Zealand (Whelan), and earlier cases to the same effect including Horsburgh v New Zealand Meacessors Industrial Union of Workers [1988] NZCA 75; [1988] 1 NZLR 698 at 701-2 per Cooke P and d Hetheon v Fauv Faudet [1988] NZCA 191; (1989) 2 NZLR 224 at 227 per Cooke Pshould be noted that the pthe position in Canada has changed since Vorvis: see Wa discussed below.


McHugh&#160 J noted the general rule dele derived from Addis was so firmly established in England and Australia that in Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 at 144 Dixon and McTiernan JJ could say thatn actor bror breach of cont contract, "[r]esentment, disappointment and the loss of esteem of friends are not proper elements". Howevis Honour went on the say that although not all principles relating to an award of damf damages in tort ought to be applicable in an action for breach of contract, it was difficult to see why no damages should be awarded for distress or disappointment arising directly from the breach of contract itself. Moreover, there were significant exceptions to the general rule, a number of which were analysed. His Honour noted the demise of the Addis rule in New Zealand, and concluded that if the matter were free from authority, damages for disappointment or distress resulting from breach of contract would be compensable if within the reasonable contemplation of the parties when the contract was made. Plainly, his Honour had grave doubts about the correctness of Addis, in modern times.


It should be noted that Addis was followed by the Industrial Relations Court of Australia in Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144 at 151. That Court, after considering Baltic Shipping, held that if damages were to be awarded for distress resulting from wrongful dismissal, it could only be after rejection, at High Court level, of the Addis conclusion that employment contracts were to be treated like other commercial contracts for the purposes of the rule in Hadley v Baxendale (1854) 156 ER 145.


In Canada, Addis is no longer regarded as good law. See generally Pilon v Peugeot Canada Ltd (1980) 114 DLR (3d) 378, Brown v Waterloo Regional Board of Commissioners of Police (1982) 136 DLR (3d) 49, Ribeiro v Canadian Imperial Bank of Commerce (1989) 67 OR (2d) 385 (on appeal) (1992) 13 OR (3d) 278, and Trask v Terra Nova Motors Ltd (1995) 127 Nfld & PEIR 310.


In Wallace, the Supreme Court of Canada held that the contract of employment has many characteristics that set it apart from an ordinary commercial contract. The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence most in need of protection. Employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal. While a dismissed employee was not entitled to compensation flowing from the fact of dismissal itself, where it could be shown that an employer engaged in bad faith conduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment, and damage to self-esteem might all be worthy of compensation. Often the intangible injuries caused by unfair dealing on dismissal will lead to difficulties in finding alternative employment. However, the intangible injuries are sufficient to merit compensation in and of themselves. In an appropriate case, damages may be awarded for mental distress.


In New Zealand, Gallen J, Whelan, , held that damages may be awarded for mental distress suffered by a long-term employee who was peremptorily dismissed from his ement. In Stuart, McGechan J followed that that deci Ion. It appears therefore, that in New Zealand, Addis has been entirely rejected as a statement of correct legal principle.


In our view, the Court of Appeal correctlermined that Addis n/u> no longer represents good law. The modern trend of authority, apart from the decision of the House of Lords in Johnson (which is explicable on other grounds) is entirely against the somewhat artificial approach taken by Lord Loreburn. Even among the majority Law Lords in Johnson there was little enthusiasm for the principle. Addis only survived because, in practice, it did not preclude recovery of damages for distress and humiliation arising from the manner of dismissal through the industrial tribunals. Although Addis continues to be applied in Australia, the portents for its survival in that country are not good.


This Court is required to declare the common law as it applies in Fiji. In our view, Addis has no place in a modern system of employment law. It should now be consigned to history.


We reject the petitioner's contention that this task should be left to the legislature. Addis is a product of the common law. It may have been correct in 1909, when conditions of employment were very different from what they are today. It is no longer, however, an appropriate standard by which to regulate employer/employee relations.


We also reject the argument that social and economic conditions in Fiji are so different from those in Canada or New Zealand as to make it inappropriate to follow the most recent statements regarding employment law in those countries. We have regard to s 33(3) of the Constitution 1997 which provides that "every person has the right to fair labour practices, including humane treatment and proper working conditions". The continued existence of Addis seems to us to be difficult to reconcile with that right.


[87] I find the manner in which Ms Qoro orchestrated Mr Mataka's dismissal quite humiliating and undignified. She subjected him to two official meetings to explain to a hostile executive and President. He was reported by letter to and called before his immediate superior Mr Anthony to explain his alleged non-performance, which non-performance Mr Anthony did not accept. He was promised a month but was terminated before its end. He asked to wait for Mr Anthony's return, a reasonable request in my view in the circumstances, but was refused and was left with no alternative but to ask for a letter of termination. The forceful and threatening way in which Ms Qoro removed him from his office and in the company of another executive, in his office in front of his secretary and having her to type up the letter of termination must have been very embarrassing and humiliating for Mr Mataka. By her own admission, although I have some doubts about it, Ms Qoro did not know that clause 40 of the Union Constitution existed but nevertheless she proceeded to oust Mr Mataka without caring to find out or be familiar with its provisions. He did not receive an apology despite asking for one. These circumstances lead me to conclude that Mr Mataka was dismissed in a manner in breach of the principle in Kant. He is entitled to compensation.

[88] Mr Mishra submitted that I should award $5,000 under this head as was done by the Supreme Court in Kant and by this Court in the unreported decision of Cava v FSC Ltd [2005] FJHC; HBC 189 of 2005L (8 August 2008). I think this case is slightly different in that Mr Mataka was able to return to his old job very soon after his dismissal and all along he was confident that he would be accepted back. I therefore award an amount of $4,000 instead.

[89] The total award for damages for breach of contract is therefore $1,346 for loss of two weeks salary plus $17,500 for reduction in salary plus $4,000 for compensation for the circumstances of dismissal making a total award of $22,846.

DEFAMATION ACTION


[90] I have found that Mr Mataka's termination was in bad faith and not for his incompetence. It follows that the publications in the Fiji Times, the Fijilive website and the letter to the Executive Secretary to be of false allegations against Mr Mataka.

[91] I do not think that the Executive Secretary Mr Anthony would have thought any the less of Mr Mataka after reading the letter of 13 March 2007. So even if the published words were capable of having the defamatory meanings alleged in the Statement of Claim, I find that Mr Mataka was not in fact defamed. The claim in this regard must fail.

[92] The claim in respect of the publication in the Fijilive website also fails because there is no evidence that the Union was responsible for that publication.

[93] There remains however, the publication in the Fiji Times newspaper. Ms Qoro said that she did not give the information to the newspaper but she acknowledged that the remarks of Mr Mataka attributed to her were accurate. She also said that one of the other executives may have given the information. I therefore find that through her and or her executives the Hotel Union did give the information to the newspaper and did cause the newspaper to publish the defamatory allegations.

[94] The words which the Plaintiff alleged to be defamatory of him were:

... The union's executive committee terminated his service on Monday citing non-performance of duties ...


[95] The Statement of Claim did not specifically plead whether the words published in the Fiji Times were defamatory in their natural and ordinary meaning or by way of innuendo. The Statement of Claim, in so far as it referred to the words published to Mr Anthony, expressly alleged the defamatory meanings of the words in both their natural and ordinary and by innuendo in its true sense as exactly the same. In any event, it seems to me that there is no real difference in this case whether the defamatory meanings are by natural and ordinary or by innuendo. I will therefore consider the Plaintiff's case as one based on the natural and ordinary meaning of the paragraph printed in the newspaper.

[96] Are these words defamatory in their natural and ordinary meaning? In Lewis v Daily Telegraph Ltd [1964] AC 234, two national newspapers published in their front pages articles headed "Inquiry on Firm by City Police" and "Fraud Squad Probe Firm". The "firm" and its managing director sued the newspapers for libel. The statements of claim alleged that the words were defamatory in their natural and ordinary meaning. The alleged defamatory meanings were that the plaintiffs had been guilty of fraud or were suspected of being guilty of fraud or dishonesty. The appeal to the House of Lords was on the basis that the articles were capable of meaning that the plaintiffs were guilty of fraud. Lord Reid explained the law in this way (p 258-60):

... There is not doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in his general knowledge and experience of worldly affairs. I leave aside the questions of innuendo where the reader has some special knowledge which might lead him to attribute a meaning to the words not apparent to those who do not have that knowledge...


What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Here there would be nothing libelous in saying that an inquiry into the appellants' affairs was proceeding: the inquiry might be by a statistician or other expert. The sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry. What those inferences should be is ultimately a question for the jury, but the trial judge has an important duty to perform.


Generally, the controversy is whether the words are capable of having a libelous meaning at all, and undoubtedly it is the judge's duty to rule on that. I shall have to deal later with the test which he must apply...


In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are naturally suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question...


What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot.


[97] The alleged defamatory meanings were:
  • (a) The Plaintiff was not an effective worker.
  • (b) The Plaintiff was not an efficient worker.
  • (c) The Plaintiff was an irresponsible and unreliable person and/or employee.
  • (d) The Plaintiff did not perform and could not perform as a General Secretary since his employment.
  • (e) The Plaintiff was unfit to be an employee of the Defendant.

[98] It seems to me that the newspaper passage is not capable of these defamatory meanings in their ordinary meaning in the sense explained by Lord Reid in Lewis. There was no "sting" in the publication. The Plaintiff's claim for damages for defamation therefore fails.

[99] It is therefore not necessary for me to consider the defences of justification and fair comment.

THE COUNTER-CLAIM


[100] No evidence was led to show that the Union suffered any loss or damage so I accordingly dismiss its counter-claim.

INTEREST UNDER THE LAW REFORM (MISCELLANEOUS PROVISIONS)(DEATH AND INTERST) ACT


[101] I make an award of interest on damages only for the period from the date of Mr Mataka's dismissal to the date of filing this action which is about one year. I award no interest for the time from filing to hearing because the Defendant could not be blamed for all the delays in that period. Interest on damages at the usual 6% pa is therefore $22,846 x 6% = $1,371 which I round up to $1,500.

COSTS


[102] The normal rule applies. The Defendant shall pay the Plaintiff's costs. The trial took 4 days. Part of the delay was Ms Qoro being sick. But the trial should not have taken longer than it did. The Plaintiff succeeded in part only of his claim. There are no complicated issues of law or fact. I therefore summarily assess party-party costs as $2,000 to be paid within 28 days.

THE ORDERS


[103] The Orders are therefore as follows:
  1. The Defendant shall pay to the Plaintiff the sum of $22,846 as damages for breach of contract.
  2. The Defendant shall pay to the Plaintiff the sum of $1,500 as interest on damages under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act [Cap27].
  3. The Defendant's counter-claim is dismissed.
  4. The Defendant shall pay to the Plaintiff the costs of this action of $2,000 within 28 days.

Sosefo Inoke
Judge

[1] Plaintiff’s Document (PD) 3.
[2] PD8.
[3] PD 10
[4] Defendant’s Documents (DD) page 10.
[5] DD p 13.
[6] PD6
[7] DD p16.
[8] DD p13.
[9] PD13
[10] DD p1
[11] DD p13
[12] DD p16
[13] DD p7
[14] PD12
[15] PD7
[16] Hon Chief Justice Daniel Fatiaki, President, Rt Hon Justice Peter Blanchard and Hon Justice Mark Weinberg, JJSC

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