Chan v Fosters Group Pacific Ltd [2015] FJHC 337; HBC430.2008 (8 May 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No.: HBC 430 of 2008

BETWEEN:

BELINDA CHAN
of 15 Damu Place, Tamavua, Suva in Fiji.
Plaintiff

AND:

FOSTER'S GROUP PACIFIC LIMITED

a limited liability company having its registered office at 122-164 Foster Road, Walu Bay, Suva in Fiji of Muanikau Road in Suva, member of Parliament.

Defendant

COUNSEL : Ms. S. Narayan for the Plaintiff
Ms. B. Narayan for the Respondent

Date of Hearing: 27th May, 2014
Date of Judgment: 8th May, 2015

JUDGMENT

Background

1. The plaintiff was an employee of the Defendant Company. The defendant subsequently had terminated the service of the plaintiff. The plaintiff filed this case seeking a declaration to say that the dismissal was unlawful and for damages.
   
2. The defendant submitted that due to the wrongful conduct of the Plaintiff she had been charge sheeted. As the explanation offered was not acceptable. She had been given the opportunity to resign. The defendant did not accept the said option resulting in summarily dismissal.
   
3. At the pre-trial conference the parties had agreed on the following facts:
   
   1. The plaintiff was employed as a credit controller with the defendant company.
      
   2. The defendant is a limited liability company having its registered office in Walu Bay, Suva Fiji and is engaged in manufacturing beer in Fiji.
      
   100. That the Plaintiff started her employment with the Defendant Company on or about April 1996 and was employed as a Data Entry Operator which involved making salaries, general ledger, cashier functions and general accounts for the Defendant.
        
   4. That on or about 18th November 2004 the Plaintiff was promoted to credit controller position with a salary of $20,750.00 which she held up until January 2008 when she was terminated from her employment.
      
   5. That the plaintiff's duties after 18th November 2004 included making accounts receivable, debts collections, preparing bad debts, cashier functions and also dealt with complaints made by customers.
      
   6. That prior to plaintiff joining the defendant's organization she acquired vast experience as she was employed as a Courier Bond Clerk in 1991 to mid 1992 with William and Goslings Ltd, Sales Representative in 1992 with TNT Courier, and from 1994 to 1996 at MBF Finance as a Business Development Officer.
      
   7. That the plaintiff in 2007 sought approval from the Defendant to undertake management studies at University of the South Pacific for which the defendant approved the same.
      
   8. That on or about 4th January 2008 the plaintiff received a letter with heading Disciplinary Action alleging release of confidential information, insubordination and Improper company e-mail usage.
      
   9. That the said Disciplinary letter of 4th January 2008 offered the plaintiff two options which were either to tender resignation from the company and if no resignation then employment will be terminated.
      
   10. That the plaintiff refused to tender her resignation.
       
   11. That on about 9th January 2008 the defendant gave the termination letter to the plaintiff effective from 10th January 2008.
       
   50. That on or about 11th January 2008 the plaintiff's solicitor wrote to the defendant advising that the defendant has put undue duress for Plaintiff to voluntarily resign and on or about 15th January 2008 the defendant's solicitors advised the plaintiff's solicitor that she was in breach of Section 28(1) of the Employment Act which warranted summary dismissal.
       
   13. That the plaintiff was 39 years old and was earning a salary of $23,132.00 per annum gross and earned $444.80 net per week at the time of her termination from employment.
       
4. The issues before court to be determined are;
   
   1. Was a proper investigation done and were in house procedures followed in terminating the plaintiff.
      
   2. What confidential information did the plaintiff release and was this information confidential or office gossip.
      
   3. If the information was confidential, did the defendant company suffer any loss/damage as a result of the release of the confidential information.
      
   4. What damage/injury was suffered by the company as a result of the email seen as a "Petition" which was sent by the plaintiff.
      
   5. Was the conduct of the plaintiff serious to warrant summary dismissal.
      
   6. Was the termination of the plaintiff's employment by the defendant lawful.
      
   7. What damages are sustained by the plaintiff as a result of the termination.
      
   8. Is the plaintiff entitled to claim for loss of earnings and loss of future earning together with FNPF contributions and interest from the defendant if successful on unlawful termination.
      
   9. Is the plaintiff entitled to general damages for being humiliated by the defendant if humiliation proven.
      

As the parties submitted the case before me narrows down to the following:-

1. Whether the Plaintiff was unlawfully dismissed; and
   
2. Whether the Plaintiff is entitled to any reliefs as sought in the Statement of Claim upon the said termination.
   

5. The plaintiff called two witnesses while the defendant also called two witnesses.
   

Determination

6. The court has considered all the documents submitted, the evidence and submissions made. The defendant has filed their written submissions but the plaintiffs have failed to file closing submissions.
   
7. The plaintiff called Mr Taniela who was working with her. He had been on annual leave on the dates that are relevant. He had heard about rumors about an employee in Lautoka and had given a call to another employee at the Lautoka branch to ascertain what was going on. The witness agreed that an employee should not divulge confidential information about another employee. The Disciplinary policy of the company was in the portal and the witness were aware of it. PW1 submits that even though plaintiff was well versed in computers he has no knowledge as to the plaintiff's awareness of the company policies found in the portal.
   
8. The plaintiff took the stand and submitted that she was terminated on 10.1.2008. She worked from 1996. The letter of appointment was marked P1. Plaintiff was appointed to the post of Credit Controller and Customer Services. This post she held till the termination in 2008. She considered she had to strictly adhere company policies.
   
9. The plaintiff was terminated on three grounds. Namely, release of confidential information, insubordination, improper usage of company email. In December 2007 the plaintiff was called for a meeting attended by group Manager HR, HR officer, and Sales Accountant. The three allegations against the plaintiff were read out. The plaintiff conceded on two grounds and pleaded that she was unaware of the third ground insubordination. On 17th December the letter of suspension was issued (P4). On 4.01.2008 the plaintiff had received the letter to state she had been found guilty of all charges (P5).
   
10. During the period 6.11.2007 to 13.11.2007 there had been a conversation involving the plaintiff about the activities of another officer at the Lautoka office. On 13th the Plaintiff called the Lautoka office and inquired about the rumors of the impending termination of the officer concerned.
    
11. The plaintiff submits that before her termination she was offered two options either to resign or to face termination. She alleges that since she didn't resign she had been terminated. (P5 and P7). She had replied to document P5 by P6. After the termination she had not been able to find another job except for temporary assignment which her husband has been able to find for her.
    
12. Under cross-examination plaintiff agreed that as per letter of employment there was no fixed term of employment. She considered that except on disciplinary grounds the defendant had the right to give two weeks prior notice and to terminate her. She also conceded that the calculation of loss pleaded in the statement of claim was incorrect.
    
13. The Plaintiff conceded that during lunch hour they had discussed about certain activities of an officer in the Lautoka office and also of impending disciplinary action against the said officer. The plaintiff conceded that she took telephone calls to the Lautoka office and enquired about the incident. Under cross examination she also conceded that the company disciplinary process was in the portal and the portal had been available to all staffs from 2005.
    
14. The plaintiff also agreed that the meeting held on 13.12.2007 was a disciplinary meeting and she conceded the disciplinary panel to be impartial.
    
15. Defendant called the HR Manager at the time of the alleged incident as a witness. The witness admitted P1 and P2 the letter of appointment and the salary slip. DW1 submitted the disciplinary process applicable to the plaintiff available on the portal, and marked as P4. At the disciplinary meeting the plaintiff had not disputed or denied the allegations made against her.
    
16. DW2 was the recipient of the document P6. The mail the plaintiff has circulated was about an employee slapping his wife within the company premises. She also submitted that as a result of plaintiff's call she was informed of a strike action by the staff of Lautoka office. DW2 in her evidence conceded that plaintiff was a good worker but was very aggressive and took things her way. She had given a verbal statement pertaining to the incident, and followed with the E statement. The witness also conceded that she was aware of the company policies displayed in the portal.
    

Analysis of Evidence

17. Analysing the evidence of PW1, PW2, DW1 and DW 2, I come to the conclusion that the company policies were in the portal and all workers were required to read and access the same. As per the evidence the plaintiff is well versed in computers, however I find her answers pertaining to her knowledge about the company disciplinary policy and the company email policy in the portal was evasive. I disbelieve the plaintiff as to her knowledge about the company disciplinary and email policies.
    
18. In a nutshell this is a case where the plaintiff was dismissed by the defendants for violating the company policy and the said dismissal is challenged on the basis of unlawful dismissal. As per the evidence it is pertinent to note that the plaintiff has been charged on three grounds before a disciplinary committee. She had been given the opportunity to reply and as the reply submitted by her was unsatisfactory, the plaintiff was dismissed.
    
19. Both parties agreed that the main issue for the court was to determine whether the termination under the given circumstances is unlawful.
    
20. As per the evidence I am inclined to accept that the defendants Company policy especially pertaining to the usage of email and discipline was available in the company portal and all employees had access to the same. The court also observes that the plaintiff too admitted that the company policies were available in the portal but what she accessed was pertaining to only her field. The court declines to believe this testimony of the plaintiff.
    
21. The document P1 has been issued to the plaintiff after the company was restructured. P1 the letter of appointment of the Plaintiff, contains a clause to state "All other conditions and terms of employment remained unchanged". I find that the plaintiff has failed to submit any document that contains the conditions and terms of employment. In the absence of any documentary evidence contrary to the company policies that was tendered to court I come to the conclusion that the plaintiff too was bound by the defendant's policies and disciplinary process in P10 and D14.
    
22. The Court's attention was brought to the disciplinary procedure of the company. I find the said process permits the summary dismissal without warning or notice.P10 provides for certain incidents that would trigger a disciplinary action namely:
    
    • Theft and misappropriation of Foster's property or resources.
    • Misuse of and deliberate damages to Foster's property.
    • Disclosure or improper use of confidential information.
      
23. As I have stated earlier the parties were not at variance on the grounds the plaintiff was terminated namely;
    
    • Release of confidential information
    • Insubordination
    • Improper use of company email
      
24. The parties were also not at variance on the fact that there has been a disciplinary meeting on 13.12.2007. As per the evidence before me at this meeting the plaintiff had been informed about the allegation against her and she had been given an opportunity to answer.
    

Release of Confidential Information

25. One of the allegations against the plaintiff was that she had got to know about an alleged incident pertaining to another officer in Lautoka. It was submitted that the company had been contemplating taking disciplinary action against this employee. As per the evidence, before the Company could take any steps the plaintiff has given a call to the Lautoka office and had sought for information as to whether the employee concerned has resigned. The Defendant submitted that this created a situation where the particular employee was put on guard and also the rest of the employees at the Lautoka office had arranged a strike action to prevent disciplinary action being taken against their employee. The Plaintiff admitted her giving a call to the Lautoka Office but denied the knowledge of any consequential acts that arose as a result of the call. However in the testimony of DW2 it was submitted that the consequential acts that followed was a result of the telephone conservation. The plaintiff has failed to challenge this evidence and has also failed to challenge the particular information that is alleged to have been divulged. The Plaintiff's attempt to demonstrate that the said information was not confidential, but office gossip, fails as the plaintiff has failed to establish this through independent evidence.
    
26. The minutes of the disciplinary process meeting D11 states, under the findings the following "However confirmed that she did take full responsibility for disclosing employee confidential information to Lautoka before investigations began, not aware that it was confidential and investigations yet to begin." Under cross examination the plaintiff answers on the allegation and the findings:
    

Q- What happened in the meeting?

A- I was told about the three allegations, and I agreed to one which was calling Lautoka office, and asking if Mua Fatiaki has resigned. I also agreed to the second allegation using company e mail, however in grounds of insubordination, I was not made aware of it at that time.

Further

Q- Now going into issue of divulging confidential information, regarding Fatiaki Mua's case you have agreed to call in the Lautoka office to Mua Fatiaki you have said you also admitted that the allegation regarding the company e-mail, however on grounds of insubordination I was not made aware that time. So two of the issues you have agreed to improper use if company e-mail and divulging of confidential information. Now you said that in regards to Faitaki Mau's case on 6th November 2007,you were questioned by the...Production accountant, Ms Shameem Narayan I have you heard about Mua Fatiaki's termination. You asked her to refer to our HR Department as it was issue concerning management. Did you put that as your answer in the meeting with you HR manager?

A- Yes.

27. Under further cross-examination the plaintiff again has admitted releasing confidential information:
    

Q- So you whilst admitting in your disciplinary meeting that you had release confidential information but said I was not aware of that disciplinary action was yet to be taken. Or investigation is yet to be taken. In your appeal letter you completely change tongue and said I denied it releasing confidential; information and you question the company even if I did what damaged has it costs to the company. Is that correct?

A- Yes.

28. The plaintiff failed to give any explanation as to why she admitted releasing confidential information at the said disciplinary meeting.
    
29. It was submitted to court that any misconduct of an employee which would warrant disciplinary action would be confidential. The plaintiff was aware that there was a serious allegation against an employee in Lautoka. As per the evidence available the plaintiff had been aware of the rumors that, as a result of this incident the employee was going to resign. As submitted by the defendant, the incident warranted a disciplinary inquiry. Under the circumstance the plaintiff's explanation that when she gave the telephone call to Lautoka she was unaware of the fact that she was divulging confidential information cannot be accepted. In my view the plaintiff had the option of calling the person whom she gave a call as a witness to demonstrate that she had not divulged any confidential information. The plaintiff has failed to avail herself of that opportunity.
    
30. The defendants brought to the attention of court the contents of document P6. By this letter the plaintiff has taken a contrary position to her defense of ignorance and stated that even if confidential information was revealed it had not cost any damage to the defendant.
    
31. The plaintiff has failed to give an explanation nor to deny the allegation that she had attempted to solicit the signatures of fellow workers to support the petition against her superior Mr Chan. As per the evidence, court observes that the working relationship between Mr Chan and the plaintiff was not cordial at all.
    

Improper Usage of Company Email

32. The plaintiff failed to deny the allegation of improper use of company email. The said email was marked D13. The court observes the said email has originated from the plaintiff. The plaintiff did not deny this mail. It had been circulated and some of the recipients had made comments. In this instance I am inclined to accept the defendant's submission that the content of D13 is a clear violation of the company email policy in D14.
    

Examination of Issues

33. As per the evidence, plaintiff did not deny that her explanation had been called for pertaining to three grounds of misconduct. Plaintiff admits that there has been a disciplinary meeting. It is not disputed that she had been afforded an opportunity to explain. Plaintiff did not deny the fact that she has admitted some allegations. However the plaintiff failed to attack the credibility of the said process. Nor has the plaintiff adduced any evidence to show that there was a deviation from the normal method of proper investigation. The plaintiff has failed to lead any evidence of the normal disciplinary process or to the fact that there had been a diversion from the normal process in this case. As I have stated in the judgment the plaintiff has failed to cross examine the defendants witnesses as to the information she has divulged to the Lautoka office and to its confidentiality. The plaintiff failed to call the person she divulged the information. In my view the defendant has satisfied court that the information divulged under the circumstance it was divulged, has caused turmoil at the Lautoka Plant. The plaintiff has failed to attack this position of the defendant.
    
34. It was submitted that document P10 contains provision for summary dismissal. Under the heading of serious misconduct the instances where summary dismissal is warranted is set out. As per the wording of the clause as submitted I find the instances for summary dismissal is not limited to what is laid out. The instances are not exhaustive. This has allowed the employer to use his discretion to decide what instance needs summary dismissal. The defendants also submitted that the plaintiffs conduct fell under clauses referring to "refusing to carrying lawful and reasonable instructions that is consistent with the employees with contract of employment." And "for willful disobedience to lawful orders given by the employer" The defendant submitted that this has to be read in the context of the company policy stated in D14.
    
35. The attention of court was drawn to clause 2.2 and 2.4 which deals with equipment software, hardware and use of email. The defendant submitted that the disciplinary process items 3, 6, 7 and 11 were relevant to the allegations against the plaintiff.
    
36. The plaintiff has failed to cross examine the defendants witness on the nature or seriousness of the plaintiff's act. The plaintiff has failed to attack the defendant's position that the plaintiff's action fell within such instances, where summary dismissal is warranted. It is also pertinent to note that in this instance the plaintiff has subjected herself to the disciplinary meeting. She had been informed of the allegations and offered an opportunity to explain her action. It is also pertinent to note that at the disciplinary meeting the plaintiff had admitted two of the allegations and has failed to deny the third allegation. The Plaintiff has failed to challenge D11 and P5. I find that the three allegations that were raised against the plaintiff had not been denied. The evidence of DW 1 to a large extent is corroborated by DW 2 and in some instances by the plaintiff herself.
    
37. At the outset this court finds that the plaintiff failed to attack the instances where the disciplinary process is alleged to have been faulted.
    
38. This court agrees with the submissions of the defendant that even if there was a flaw in the disciplinary process, what the court should look is to see whether it has led to a substantial unfairness towards the plaintiff. This position was upheld in Air Pacific Limited (1998) FJC 9 (1988) 34 FLR 6 where it was held even if there was a flouting of procedure the court should ascertain whether the alleged misconduct of the plaintiff was serious than the alleged procedural inadequacy.
    
39. The plaintiff failed to impunge the disciplinary procedure adopted by the defendant. The plaintiff has failed to prove the unfairness or unreasonableness of the dismissal, in the given circumstances. In arriving at the conclusion as to whether the plaintiff's dismissal was unlawful and whether it was tainted with substantial and procedural flaws which warrants court's intervention I applied the test laid in Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 which followed the English court of Appeal case reported in XVY [2004] EWCA Civil 667 where it was held within "the employer must show that he believed that there has been misconduct by the employee, that there were reasonable grounds for that believe; that he had carried out as much investigation into the matter as reasonable in all the circumstances and the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employee"
    
40. From the evidence submitted the defendant has built a strong case of three instances of misconduct by the plaintiff. The plaintiff has been given an opportunity to answer that. The plaintiff virtually admitted two grounds and has stopped short of denying the third ground. There was evidence led to the fact that investigations had been carried out and statements obtained. As this court has stated earlier, I find the plaintiff has failed to attack the procedure of carrying out investigations or about the transparent nature of investigations. In the absence of any attack to the impugned manner of the investigation that was carried out, I find the plaintiff has failed to challenge the reasonableness of the mode of investigation. It was submitted in this instance that the defendant had thought that the most reasonable responses to the misconduct was dismissal.
    
41. The defendants also explain the circumstance of issuing P5, while denying it was to intimidate or to curtail the rights of the plaintiff. The defendant submitted that considering the long service the plaintiff has put and considering her work, by the said document they had given an opportunity for the plaintiff to tender her resignation without proceeding to termination.
    
42. The defendant brought to the attention of the courts the case of Bulu –v- Housing Authority [2004] FJCA 41 ABU .2003. I am inclined to accept the submissions of the defendant that the two grounds the plaintiff admitted at the disciplinary meeting was in violation of the disciplinary process and the defendants e mail policy
    
43. As per document D13 the plaintiff had used office email to communicate with other employees in her attempt to get a fellow employee punished for assaulting his wife. In this instance the defendant has demonstrated that plaintiff had not only violated the company mail policy but also has questioned the management's decision pertaining to matters which had nothing to do with the company business. The defendant also demonstrated that the plaintiff has gone one step ahead, when questioned by the company and had replied justifying her action.
    
44. By this action the plaintiff has drawn herself to be open for allegations of breaching the disciplinary procedures.
    
45. In answering the plaintiff's allegation that action had not caused any loss to the defendant, it was submitted the criteria the court should look is not only the loss. In Bulu v Housing Authority (Supra) the court held "even if alternatively there was no loss to the authority we agree with the Judge that the conduct amounts to grave and serious misconduct justifying summarily dismissal." The defendants have demonstrated the act of the plaintiff amounts to a serious misconduct.
    

Conclusion

46. Considering all the evidence submitted to this court, in my view the plaintiff has failed to attack the fairness or reasonableness of the defendant's decision. The plaintiff has failed to satisfactorily challenge, the alleged procedural errors in the disciplinary process to show that if not for the errors the conclusion would have been different.
    
47. For the reasons set out above in my view the plaintiff has failed to prove her case. Accordingly the plaintiff fails to succeed in any of the reliefs prayed for. Even though the defendants submitted in their final submissions to grant cost on an indemnity basis, considering all the facts in this case and the plight of the plaintiff I decline to grant cost on an indemnity basis. However I grant a cost of $1,000 summarily assessed in favour of the defendant.
    

Final Orders

48. The plaintiff's case is dismissed subject to a cost of $1000.00 summarily assessed in favour of defendant.
    

Mayadunne Corea
JUDGE

8.5.2015