Chandra v Post Fiji Ltd [2015] FJHC 841; HBC146.2007 (2 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC No. 146 of 2007

BETWEEN:

Shiu Chandra (f/n Jay Lal)
Plaintiff

AND:

Post Fiji Limited
Defendant

BEFORE : The Hon. Mr Justice David Alfred

Counsel : Mr M Young for the Plaintiff
Mr R K Naidu for the Defendant

Dates of Hearing : 8, 9 and 10 September 2015
Date of Judgment : 2 November 2015

JUDGMENT

1. The Statement of Claim contends the Plaintiff had been employed by the Defendant for 22 years when on or about 29 August 2001, his employment was terminated. The Plaintiff further contends this termination was wrongful because, inter alia, he was not given the requisite notice, was not given the reasons for the termination and the Defendant had acted in breach of the provisions of the Corporate Manual and his contract of employment. He was therefore claiming loss of salary, FNPF deductions, redundancy payment and increments, a Declaration that the termination was illegal and invalid and alternatively for an order for reinstatement.
   
2. The Amended Statement of Defence and Counter Claim while admitting the Plaintiff's employment was terminated in accordance with the relevant Corporate Manual, avers that the termination was lawful and therefore prayed for the Plaintiff's claim to be dismissed. By its Counter Claim, the Defendant claimed from the Plaintiff, the sum of $30,520.70, the balance of the money, it contended, the Plaintiff had misappropriated.
   
3. By its Reply to Amended Statement of Defence and Defence to Counter Claim, the Plaintiff sought to strike these out with costs.
   
4. An Amended Minutes of Pre-Trial Conference held on 18 March 2015 was filed.
   

Amongst the Agreed Facts was:

(i) The Plaintiff was employed for an indefinite term and such term was terminable in accordance with the terms of the relative Corporate Manual.

Amongst the Issues to be tried were:

(i) Was the Defendant entitled to summarily dismiss the Plaintiff.

(ii) Was the Plaintiff entitled to reinstatement following his acquittal in the criminal action.

(iii) Did the Plaintiff fraudulently misappropriate cash from the Defendant, as pleaded in the Counter Claim.

(iv) Is the Defendant entitled to the sum of $30, 520.70 from the Plaintiff or any sum at all.

5. An Agreed Bundle of Documents was also filed.
   
6. The hearing commenced on 8 September 2015 with the Plaintiff (PW1) giving evidence. He said he started work in 1979 with Posts and Telecom and traced his career until in about 1998 he was transferred to Laucala Beach as Post Master.
   
7. He started to accept one, Sheik Hassan's (Hassan) personal cheques. He accepted Hassan's cheques on trust and the recipient in another Post Office would receive cash through money orders. Under the rules if a cheque is dishonoured then he is liable to make good the loss and to bear the bank charges.
   
8. In 2001, he was transferred to Suva. The Post Master at Laucala Beach, Dhanpal Singh, wrote to him (PW1) saying there were 3 dishonoured cheques. Dhanpal had the authority to demand that he (PW1) recover the money from Hassan. PW1 now tendered the 3 cheques as Exhibits P1, P2 and P3, Dhanpal's letter as Exhibit 4 and Hassan's letter to the Managing Director of Post Fiji Limited as Exhibit P5.
   
9. The 1st cheque was cleared in August 2001. The manager of the Suva Post Office told him to arrange for payment within one week and also that the disciplinary board would be meeting the next day.
   
10. He (PW1) attended the hearing. The Board members asked him why he did it and he said it was because Hassan was a good businessman. The same evening (29 August 2001) he received a letter of dismissal which he tendered as Exhibit P6. He was acquitted by the court of the criminal charge on 2 August 2006, and tendered the court's judgment as Exhibit P7.
    
11. During cross-examination PW1 said he had been advancing Post Fiji's money for the benefit of Hassan's grog supplies. He released monies to suppliers on the basis of current dated cheques.
    
12. The record of his interview by the police was tendered and marked as Exhibit D1.
    
13. On the next day, PW1 continued with his evidence under cross examination. He said that in his statement (Exhibit D1) he had stated he accepted (cheques) in good faith. It is not normal Post Fiji's practice to accept personal cheques. Post Fiji did not know he was sending Post funds to the suppliers. Post Fiji only became aware when the cheques were dishonoured. He wrote a letter to the General Manager (tendered as Exhibit D4) and agreed he had not disagreed with the latter. What he did was against the rules of the company. There was a disciplinary board meeting notice which he tendered as Exhibit D5. In answer to the Court he said he was representing cheque amounts as items in the cash payment account. He had written a letter (Exhibit D10) seeking time, forgiveness, another chance and for the matter not to be handed over to the Police and for a suspended sentence for the offence he had committed.
    
14. He agreed that when the company received his letter, they gave him until 30 September 2001, as requested by him, to make payment failing which they would report to the police. He was interviewed by the police on 8 March 2002 after the matter was reported to the police when he failed to make payment. He did not seek the company's approval. He used the company's money for an unauthorised purpose. There was nothing in writing to say he could accept personal cheques.
    
15. In re-examination, PW1 said he had business dealings with Hassan many times before the dealings with the 3 cheques. With this the Plaintiff closed his case.
    
16. The Defendant then began its case with its first witness, Sivan Sada (DW1). He was a retired postal manager. He had been working at Laucala Beach Post Office as the Senior Manager Mails, from about 2001 till 2007. He was part of the Disciplinary Board that recommended the Plaintiff's dismissal. Their recommendation is Exhibit D6.
    
17. DW1 said the standing instructions are not to accept any cheques in payment of Telegraphic Money Orders (TMO). This was discussed at that meeting where the Plaintiff was present. The standing instructions had been issued because when a cheque "bounced" the company suffers a loss. It was a universal practice in Post Fiji not to accept cheques and all post officers had to follow these standing instructions. The Plaintiff had never stated he was not aware of the standing instructions. As Post Master, he (DW1) had no authority to accept cheques as payment for TMO's. The Plaintiff defrauded the company by showing the money in the till, when actually it was not there. No money had been received when sending TMO's – the company's funds were used. The books balanced but the money actually was not there.
    
18. The Board recommended the Plaintiff's dismissal. Post Fiji was seeking recovery from the Plaintiff of $30,520.70 which had still not been received to date by it.
    
19. Under cross-examination DW1 said he was informed by the Manager Mails that the money had still not been received. Standing instructions sent by circular would have stated not to accept cheques for TMO's but cheques could be accepted for stamps.
    
20. In re-examination, DW1 said a Post Master does not have the discretion to accept cheques in payment of money orders.
    
21. The next witness was Seveci Tora (DW2) who is the Head of Postal Services. The Plaintiff's employment was terminated on 29 August 2001. There were 3 bounced cheques in payment for TMOs. Post Fiji does not accept cheques in payment of TMOs. At training school they were told the rules on how to run a Post Office. A Post Master does not have discretion to accept cheques in payment of TMOs. Clear instructions were given on this by circulars which at present could not be located. DW2 said he was familiar with the Corporate Instructions Manual 11 (Exhibit D9) which is to cover employment relations. The 1st cheque was later paid. The other 2 cheques remain still outstanding. Post Fiji is counter claiming $30,520. 70 from the Plaintiff.
    
22. Under cross examination DW2 said there are standing instructions prohibiting acceptance of cheques in payment of TMOs. With this the Defendant closed its case.
    
23. At the next day's hearing the Defendant's Counsel provided his written submission and authorities. He said the Plaintiff's conduct was such as to justify summary dismissal. There was an admission by the Plaintiff and only he was doing it and no other Post Master. The Defendant had suffered loss as a result of the Plaintiff's action. The Plaintiff was treated fairly and was allowed to explain.
    
24. The Plaintiff's Counsel then submitted. He said the Plaintiff had been unfairly dismissed. He submitted there were no standing instructions against accepting cheques for TMOs. The Plaintiff had been 20 plus years with the Defendant and he had been promoted. He finally submitted that the Plaintiff's claim should be allowed and the Defendant's Counter Claim should be dismissed because the Plaintiff did not intentionally defraud the Defendant. (emphasis mine).
    
25. At the conclusion of submissions, I reserved judgment to a date to be announced.
    
26. In the course of reaching my decision, I have perused the following:
    
    • (i) Written submission of the Defendant.
      
    • (ii) The authorities submitted by Counsel.
      
27. I now proceed to deliver my judgment. This is a case where there is a claim by the Plaintiff and a Counter Claim by the Defendant. The factual matrix is the same for both.
    
28. The Plaintiff was employed by the Defendant and at the material time to the action was the Post Master at Laucala Beach Post Office. His employment was terminated with effect from 29 August 2001. He had been charged with the criminal offence of conspiracy but had been acquitted by the Magistrate Court, Suva. For the purpose of deciding this case I do not propose to refer to the criminal charge as such because, in my opinion it is not relevant for my arriving at my decision.
    
29. I will deal first with the Plaintiff's claims which stem from his contention that he had been wrongfully dismissed.
    
30. The Defendant's dismissal of the Plaintiff is based on grounds which are lucidly and succinctly stated in their letter (of dismissal) to the Plaintiff dated 29 August 2001(Exhibit P6), as follows:
    
    • (a) He had received 3 cheques from customers amounting to $41, 290.00 which had been dishonoured.
      
    • (b) He misappropriated cash from the counter after falsifying the documents to indicate that the cash was in hand.
      
    • (c) He had betrayed the trust of the company.
      
    • (d) A balance of $30,520.70 is still outstanding of (a).
      
31. The Defendant therefore decided that because of the seriousness of the offence and the fact that a large sum of money was involved, the Plaintiff was thereby summarily dismissed in accordance with clause 46.3 of the Corporate Manual 11 with effect from 29 August 2001.
    
32. Clause 46.3 of the said Manual provides that If an act of gross misconduct is committed, the employee may be liable to summary dismissal."
    
33. The Defendant did not arrive at it's decision to summarily dismiss the Plaintiff in a summary manner. I find from the evidence that the Defendant expended time and took efforts to avert visiting such a fate on their errant employee, who from his own letter to the Defendant dated 29 August 2001 (Exhibit D10)has made an explicit admission of his culpability. He states he seeks time "until 30 September 2001 to fully settle the $30,520", requests "the Company to forgive me for what I have done, the deed which I deeply regretted" and asks for "another chance by instituting a suspended sentence for the offence I committed."
    
34. This letter should be sufficient to dispose of the matter. Nevertheless, I shall now retrace the path the Defendant took before arriving at the decision the Plaintiff now attempts to impugn.
    
35. First I see that the Post Master wrote to the Plaintiff a letter dated 13 August 2001 referring to their conversation and the 3 dishonoured cheques, and requesting him to settle the due amount by 10.00am, 17 August 2001.
    
36. The Plaintiff by his letter dated 27 August 2001 to the General Manager referred to the latter's letter seeking an explanation regarding the outstanding dishonoured cheques and said the cheques were accepted in good faith as he knew the senders; he had contacted the cheques' owners and they had assured him the cheques would be cleared on 29 August 2001; he had not reported the matter because the customers assured him that the cheques would be cleared; he apologized very much for the above.
    
37. The Defendant's General Manager Retail by his letter dated 27 August 2001 to the Plaintiff referred to the 3 dishounoured cheques, stating that he (Plaintiff) was responsible for their acceptance and requiring his explanation by 12pm that day to the questions viz why he accepted the cheques for the issuance of TMO, what steps he had taken to recover the amounts, why in view of the long delay in clearing these cheques it had not been reported to his (General Manager's) office.
    
38. The Defendant then conducted a Disciplinary Board Meeting which the Plaintiff confirmed in his evidence he attended. The report of the Board Meeting to the Managing Director is Exhibit D6. It stated that the Plaintiff had been accorded the opportunity to explain. It reported the findings of the Board that the Plaintiff had falsified Company documents to camouflage that money was in hand and had admitted committing the offence. The Board found he had committed a major offence and should be dismissed.
    
39. The Managing Director by his letter dated 29 August 2001 to the Plaintiff gave him a full account of his offence and that consequently, he was summarily dismissed in terms of clause 46.3 of the Corporate Manual 11.
    
40. I have traced the above trail to show that the Defendant treated the Plaintiff in a fair and transparent manner before effecting his dismissal for an offence which the Plaintiff had clearly and unequivocally admitted he had committed and as a result of which the Defendant had suffered a considerable financial loss which has to date not been recompensed by the Plaintiff.
    
41. I have perused the Employment Act Cap 92, Section 28 of which states that "An employer shall not dismiss an employee summarily except in the following circumstances:
    
    • (a) Where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service."
      
42. I have also perused the authorities submitted by Counsel.
    
43. I find that the following case is persuasive authority for the decision I have reached. This is the English Court of Appeal decision in Sinclair v Neighbour [1967] 2WLR1. The Court held where the Plaintiff, a manager of one of the Defendant's shops who had taken £15 out of the till for the purpose of placing a bet, that even though the plaintiff's conduct might not have been dishonest, it was nevertheless conduct of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant, and therefore the defendant's summary dismissal of the plaintiff was justified.
    
44. I will follow the decision of Pathik J, in Suva High Court, Civil Action No. 210 of 1994; Awadh Narayan Singh v Fiji Posts And Telecommunications Limited. Here the Plaintiff was dismissed for "tampering with mail", He had been clearly seen by 2 people tampering with mail. The judge concluded the conduct of the Plaintiff, on the facts established, amounted to misconduct. He therefore found the summary dismissal was justified, that it was a lawful dismissal disentitling the Plaintiff to any form of relief and dismissed the action with costs.
    
45. In Suva Judicial Review No. 0020 of 2006 Between Fiji Development Bank ... Applicant and The Arbitration Tribunal ... Respondent and Fiji Bank & Finance Sector Employees Union ... First Interested Party and Jone Rasalato ... Second Interested Party, the Second Respondent had committed an act of dishonesty with regard to a payment of $50.00. The High Court, amongst other orders, made an order that the Second Interested Party's termination of employment was fair and justified in the circumstances. It also quashed the Tribunal's Award (that the dismissal was unreasonable and unfair).
    
46. The Concise Oxford Dictionary of Current English (8th edition) defines "gross" as "flagrant, conspicuously wrong", and defines "misconduct" as "improper or unprofessional behavior".
    
47. The Plaintiff has admitted in writing that he took the Defendant's money. The Plaintiff's Counsel in his oral submission has submitted that the Plaintiff did not intentionally defraud the Defendant, which can only mean the Plaintiff did defraud the Defendant. To the man on the Victoria Parade, Suva, bus this can only mean that the Plaintiff had deprived the Defendant of what is rightfully the Defendant's i.e the sum of $30,520.70. On this ground alone all the Plaintiff's claims especially those for reinstatement and for exemplary damages should be dismissed. On this ground alone the Plaintiff's Counter Claim should be allowed.
    
48. In the light of the evidence and of the decided cases referred to, I have no doubt in my mind that the Plaintiff's conduct in misappropriating the Defendant's money was of such a grave and serious character and inconsistent with his contract of service as to merit summary dismissal under Section 28 of the Employment Act. It also precludes any possibility of reinstatement. An employee who has misappropriated his employer's money has thereby knowingly and wilfulfully broken the trust reposed in him by his employer. No tribunal or court can order an employer to take back into its fold such an errant employee especially one like the Plaintiff here who has admitted his wrongdoing in writing but has not recompensed his employer for its loss. A breach of trust of such a magnitude by a servant or employee cannot be condoned or overlooked.
    
49. I therefore find and so hold, that the Plaintiff's dismissal was justified and warranted and that the Plaintiff has failed on a balance of probabilities to prove his claims for a declaration, damages, reinstatement, general damages and exemplary damages. I therefore dismiss the Plaintiff's claims with costs which I summarily assess at $2,500.00 to be paid by the Plaintiff to the Defendant.
    
50. In the circumstances of this case where the Plaintiff led no evidence regarding his alleged claims or losses. I am unable, for the sake of completeness, to make any assessment of damages that might have been awarded if liability had been established, which clearly is not the case here.
    
51. I now turn to the Defendant's counter claim. I find for the reasons stated in my judgment and based on the evidence produced in court, that the Defendant has succeeded in proving its counter claim and I therefore allow the counter claim and hereby order the Plaintiff to pay the Defendant the sum of $30, 520.70 together with interest thereon at the rate of 4% per annum from 29 August 2001 to date of payment and costs which I summarily assess at $1,500.00.
    
52. In the event the Plaintiff is to pay the Defendant the sum of $30,520.70 with interest as above ordered and costs in the total sum of $4,000.00.
    

Dated this 2nd day of November 2015, at Suva.

David Alfred
JUDGE

High Court of Fiji, Suva