To'ia v Tonga Visitors Bureau [2001] TOSC 55; C 0066 2000 (14 December 2001)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

No.C.665/2000

BETWEEN:

SEMISI TO'IA
Plaintiff

AND:

1. TONGA VISITORS BUREAU
2. KINGDOM OF TONGA
Defendants

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr S. Fifita for the plaintiff
Mrs L. Simiki for the defendants

Hearing: 10 and 11 December 2001
Judgment: 14 December 2001

JUDGMENT

The plaintiff was an employee of the defendants for 11 years until he was dismissed in early 2000. He brings this action for unlawful dismissal and seeks declarations that the defendants' appeal procedure is unlawful and ineffective, that his dismissal was a breach of natural justice and that it was ultra vires. He seeks damages totalling $13,500.00 for the unfair dismissal.

The plaintiff's case is that he commenced vacation leave of 99 days on 1 July 1999, which was his leave entitlement. He went to the United States of America for that leave but, before it was completed, he applied by telephone for a further 58 days special leave. That was granted and ran from 8 October to 7 December 1999.

Unfortunately, the plaintiff was unable to return in time because he was unable to obtain a seat on any flight until 26 December. He sought permission for a further extension but it was refused.

By the time he returned to Tonga, the public service was on leave for the Christmas break and so he was unable to report for work until 3 January, the first working day of 2000.

On that day he was told he was suspended and a letter was given to him saying that he had been recommended for dismissal. It was from the Acting Manager of the Tonga National Centre, Filipo Faiva. It included the passage:

"According to Estacode therefore I hereby inform that recommendations have been submitted to the Director of Tourism for your dismissal because you failed to comply with your leave requirements. I have already contacted the Minister of the Visitors Bureau Department and he informed me to dismiss you from the Service.

Because this is the second time you have failed to comply with the Department's requirements with regard to staff leave, the matter has been referred to higher authorities for a final decision for your dismissal from the Service."

On 14 January, Mr Faiva again wrote to the plaintiff:

"I respectfully write to convey to you, that you are required to lodge with the Department an explanation with regard to your leave without authority beginning from your special leave without pay from the 1^st of December 1999. You are given fourteen days within which to reply to this letter beginning from today."

On 11 February Mr Faiva again wrote to say that the Minister had ordered the plaintiff's suspension from 3 January and advising him "the Department has referred that matter to the Establishment Office and Staff Board. They will contact you and inform you of their final decision regarding this matter."

This was followed by a letter from the Establishment Division on 18 February. It set out the charge relating to the unauthorised leave and also added that the plaintiff had taken unauthorised leave twice before in 1991 and 1995. There was also a charge that he had misused the Departmental vehicle. It concluded with the requirement that he submit his explanations with the Establishments office no later than 6 March.

On 28 February, the plaintiff supplied his reasons in writing. He heard no more until 1 May when he was notified that Cabinet had decided on 19 April 2000 to dismiss him from the Service "on the ground of leave without authority, with effect from the 1^st December 1999".

The defendants' case is simply, that the plaintiff was dismissed following the proper procedures which included the opportunity to put his case.

The evidence was largely undisputed by either side. There was a notable discrepancy in the evidence of the plaintiff in relation to the reason for his request to extend his leave for the further 58 days. He had originally stated in an affidavit that he could not return at the end of the three months vacation leave because he was sick. In his oral evidence, he told the court he stayed because he hoped to obtain financial support for his family. I accept that, at some time, he may have been sick but I do not accept it was the reason why he extended his leave.

When he first went to the United States, he was on a visitor's visa and had to have a return ticket. That would have ensured he could return in time to take up his employment at the end of the vacation leave. The responsibility to return to his work at the right time is his and, even if he had managed to retain that seat, he should not have made any application to extend his leave without first ensuring he could return at the end.

No evidence has been submitted to the court in support of the claim for damages.

Mr Fifita for the plaintiff appears to be submitting two main lines of defence. The first is that the calculation of the leave to which he was entitled is wrong and therefore he was not absent without leave. The second is that the dismissal was not in accordance with proper procedures and was in breach of natural justice.

In relation to the calculation of leave, he suggests two mistakes, the effect of public holidays and the time the plaintiff was sick.

Mr Fifita suggests that, as three public holidays occurred whilst the plaintiff was on leave, those days should be credited and will, therefore, push the date for the end of his leave back by the same amount. Unfortunately for the plaintiff, the Chief Establishment Officer told the court that, under the Civil Service Regulations (Estacode), any public holiday that falls during a period of leave shall be disregarded so that day is still taken as a day of leave. I would add that, even if that had not been so, it was clear that, when permission was given to the plaintiff to extend his time away by special leave, a specific date was stated upon which he had to return to work. If that date was wrong, he should have taken it up at the time. Otherwise I consider his obligation was to attend work on the date stated and that he failed to do.

The second point is that the plaintiff stated in his affidavit that he was sick for 20 days whilst on leave. He did not supply any medical certificate to his employer when he returned because, his counsel says, he did not realise he needed to and his ignorance is the fault of his employer because there is an obligation under the Estacode to make a copy available to all employees. Although his counsel urged this, there was no evidence that a copy had not been available. It is notable that, whilst his case is that he was sick whilst on leave, he has provided the court with no evidence to support that assertion.

The basis of the submission that this was not in accordance with the principles of natural justice is, if I understand Mr Fifita correctly, that the Head of Department and the Minister had already decided the plaintiff should be dismissed and so the Civil Service Board was simply accepting that. Although the wording of the various letters sent to the plaintiff leave much to be desired, I do not accept that there is any evidence that the final decision to dismiss the plaintiff was anything but a properly taken decision. Counsel's suggestion that the plaintiff was not given a proper opportunity to put his case is clearly wrong. There is no evidence that the final decision was reached before it was considered or that it was simply rubberstamping a previous decision.

That also answers the suggestion that this breached the rules of natural justice by not making the charges clear or failing to allow him to make representation before the decision to dismiss was made.

It is also being suggested that the suspension was in breach of the Estacode and therefore the plaintiff is entitled to pay for that period. I accept that there is some evidence that the decision to suspend the plaintiff was made before the Ministerial Head of Department had considered it. However, the Estacode provides that, at the end of a period of suspension whether it ends by dismissal or re-instatement, Cabinet is given the discretion to determine whether any remuneration for that period should be paid. The wording of the dismissal and the fact that it was stated be effective from 1 December 1999 shows that Cabinet did consider the point and decided not to allow any payment.

It was also suggested that the additional charges that the plaintiff had taken unauthorised leave previously and that he had misused the departmental car were not correct and should not have been considered in the absence of evidence. This point was made by the plaintiff in his reply to the allegations and it is clear from the memorandum from the Civil Service Board to Cabinet from the meeting of 13 April 2000 that the Board considered both those matters and rejected them. The decision to dismiss was made solely on the basis of the unauthorised leave.

I do not find that the plaintiff has proved that his dismissal from the Civil Service was unlawful, was in breach of natural justice or that the authorities had failed to follow the correct procedures under the Civil Service Regulations. Mr Fifita has not indicated the basis of the claim the decision was ultra vires.

The claim is dismissed with costs to the defendants.

I would add that, whilst his dismissed was made effective from 1 December 1999, there is some evidence that date may have been wrongly calculated. However, as it was leave without pay, it does not affect his entitlement.

NUKU'ALOFA: 14^th December 2001.

CHIEF JUSTICE