Fonua v Tonga Communications Corporation Ltd [2003] TOSC 52; C 0692 2001 (11 December 2003)

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

NO. C.692/01

BETWEEN:

SIOSAIA H. FONUA
Plaintiff

AND:

TONGA COMMUNICATIONS CORPORATION LIMITED
Defendant

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr Niu for plaintiff
Mr Tu’utafaiva for defendant

Date of Hearing: 20 and 21 March, 15 and 16 April, 2003.
Date of Judgment: 11 December, 2003.

JUDGMENT

This is a claim for damages for wrongful dismissal of the plaintiff in 1999. He was, at that time the Chief Engineer of the Tonga Telecommunications Commission and in charge of the Engineering Division. He had first started work with the Telegraph and Telephone Department of the Government, in 1971 and then for TTC once the Board was established in 1984. In 2001 the Tonga Communications Corporation Act, 2000, established the defendant Corporation and, by section 7, transferred all properties, rights and liabilities to which the Commission was entitled or subject and vested them in the Corporation. However, the plaintiff ceased working for the Commission in 1999 and this case is about the manner in which his employment ceased.

During his years working for T&T and TTC, the plaintiff was able to study abroad more than once and there can be no doubt that, by 1999 he was a very highly qualified and experienced telecommunications engineer and he fully expected to continue working for TTC until he reached retirement. At that time the General Manager of TTC was Lemeki Malu and the plaintiff’s case is that the promotion and appointment procedures in TTC were such that he had every expectation of being promoted to that position on Mr Malu’s retirement. However, following a number of incidents, the plaintiff was told to resign and did so. The Board then gave him his holiday entitlement of 95 days and a gratuity equal to 3 months salary, amounting to a total of $7,170.33, a sum he accepted under protest. He claims a total of $516,000.00 for loss of expected wages, pension and other benefits.

The defence pleaded denies that he was forced to resign. It claims that he resigned voluntarily and his resignation was accepted by the plaintiff. He was then paid the proper entitlement on resignation.

The case was heard over two days in March but had then to be adjourned to allow the court to hear an urgent constitutional case and it could not be continued until April. As a result of the interruption, counsel sought leave to file written submissions later rather than address the court immediately. Counsel should be prepared to make their submissions immediately after the conclusion of the evidence. Requesting further time to file written submissions is a practice which simply delays the case unnecessarily. However, as defence counsel had been involved in the intervening case and had not been able to prepare his final submissions, I agreed. Counsel for the plaintiff filed his submissions promptly but no submissions were received from the defence despite oral reminders sent on my instructions by the court staff. They still have not been filed. As a result the court has to deal with the case after a considerable delay and without the benefit of defence submissions. The defence called no evidence and so submissions would have been particularly important and helpful.

The evidence in this case was of the circumstances leading up to the plaintiff’s resignation and the manner in which it was demanded and given. As has been stated, the defendant called no evidence and so the total evidence before the court is that of the plaintiff and his single witness.

The plaintiff’s evidence went back over many matters about which it is not necessary to make any decision but which, to some extent, set the background for the events leading up to the action.

In about 1996 there was concern at the standard of the telephone service as a whole in Tonga and one cause of concern was the figure for the ASR (Answer Seizure Ratio) which it appears is a means of measuring the number and types of unanswered calls both incoming to and outgoing from Tonga.

The TTC appointed overseas consultants to report on the whole spectrum of communications. Cable and Wireless was still established in Tonga and all overseas calls went through its networks. However, negotiations were in hand for its withdrawal from Tonga following which TTC would be likely to take over the whole telecommunications system in the Kingdom. The consultants’ report (Cutler Report) was issued in April 1997 and it also made reference, amongst other things, to the difference between the ASR for outgoing and incoming calls which indicated the inefficiency of the system in Tonga measured against that of the overseas companies through which overseas calls were made.

In 1996 the management of the TTC under the General Manager was organised into three divisions; Financial, Commercial and Engineering. The plaintiff headed the Engineering division and the other two were headed by the Manager Finance and the Manager Commercial. Of those three, the plaintiff was the most experienced in terms of length of service in the industry. The Manager Finance had served in TTC for about 15 years and the Manager Commercial had only been appointed in 1996.

It is clear that the plaintiff did not hold a very high regard for the Manager Commercial, Busby Kautoke, and there was conflict between them on a number of matters. However, the main cause of conflict was that the plaintiff attributed the bad and deteriorating ASR to the failure of the Commercial division to repair and maintain telephone apparatus. Clearly on his evidence, there was some reason for that conclusion but it is also clear that he was concerned that part of the blame was wrongly, he felt, being placed on his division. He also felt that the attitude of the General Manager and the Board seemed to indicate that the problem was not being taken seriously enough and they were not taking adequate steps to remedy it.

The rights and wrongs of that do not need to be decided by this court and, indeed with only the limited evidence that has been presented to the court, it would not be possible to do so. However, the plaintiff’s evidence on this was helpful and was not, of course, countered by any from the defendant. It also appeared from the plaintiff’s documents that he had tried to be appointed to the position of Chief Commercial Officer in 1997.

Where the court needs to take up the narrative for the determination of this case is in 1999. By then the relationship between the plaintiff and the General Manager had deteriorated also. Various reasons were given as to why this had happened. It appears the plaintiff had given evidence critical of the General Manager, including his conduct on a trip to New York, to a committee of inquiry. There was also a letter which had circulated around the workplace, claiming to be from one L Fifita, criticising the General Manager and which the General Manager was convinced had originated from the plaintiff.

The plaintiff told the court that the policy of the TTC had, up to that time, been to make all promotions including acting appointments on the basis of seniority only. However, following the appearance of the ‘Fifita letter’, Busby Kautoke, the least senior of the heads of divisions, was appointed as acting General Manager when Lemeki Malu was abroad.

The plaintiff objected in writing on 12 January 1999 suggesting that the appointment of Busby Kautoke instead of himself could imply that he had "again [been] reported to the board for misconduct without [his] knowledge".

In a strongly worded reply, the General Manager told the plaintiff that "the appointment of an Incumbent as Acting General Manager shall either be the Chief Commercial Officer or the Chief Accountant". He acknowledges the fact that appointments were governed by seniority and ability but stated that the element of trust in the plaintiff had been lost. He concluded:

"Finally it is incredible for me to believe that you have betrayed me and in your own diabolical way and plan devised an agenda to destroy my life and family. I find it extremely difficult to work with you. You have been trying to hide yourself, but without doubt, you are the famous author L. Fifita of the letter of allegation against me."

The plaintiff denies he had anything to do with the ‘Fifita’ letter and there has been no evidence to challenge that. It is mentioned here because the plaintiff attached importance to that as one of a series of events which showed the attitude of the General Manager and he suggests that personal animosity is part of the true reason for his subsequent treatment. It was suggested to the plaintiff in cross-examination that this alarmed him because of his assumption that he would succeed the General Manager and it was this alarm which prompted his actions in June 1999; a suggestion the plaintiff denies.

Throughout the first half of 1999, the continuing problem of the ASR was being examined and discussed. The plaintiff maintained his view that the fault mainly lay with the Commercial Division despite additional resources it had been allocated specifically to tackle the problem.

Then, on 3 June 1999, the plaintiff wrote a memorandum to the General Manager in the following terms:

"Loss of Revenue from the international traffic and Customer Services.

In 1998, a minimum of $3,844,000.00 (courtesy of C & W Plc) loss of revenue from Australia and New Zealand alone due to substandard customer services in Tonga. The estimated loss of revenue in 1998 is more than $5.0 million including Hawaii, AT&T, MCI, Hong Kong and directly related to the Cutler and Company’s Report Phase 1A. Refer Attachment 1.

Test calls from New Zealand to Tonga shows 80% ASR successful rate can be achieved provided telephone services are working. The test calls suggested that the TTC international exchange performance and operation are within the specification. Refer Attachment 2.

More that 5725 call failures in two (2) days from New Zealand to Tonga alone were recorded on the 13^th and 23 August 1998. The call failures are equally experienced by both the analog and digital exchanges. Refer Attachment 3.

Although the Commercial Section resources were increased, faults are increasing by 300%, and faults reported in 1996, 1997, 1998 and 1999 have not been restored to service. Refer Attachment 4.

These are clear evidences to support my strong recommendation to dismiss the Chief Commercial Officer from the Commission. I strongly believe Management should be made accountable for their actions and it is recommended to submit a report on the basis of these information to the Monitoring Committee for their considering."

It is stated to have been copied to Management, Engineers, Controllers and Customer Services and the plaintiff agreed in cross-examination that he had circulated it widely. Remarkably, considering the recommendation in the final paragraph, he had given copies to the deputy General Manager, other heads of departments, four controllers and to more than one member of customer services. The plaintiff told the court it was written for the consideration of the Monitoring Committee but the additional staff to whom he circulated it were not members of that Committee. It was an unfortunate step to have taken.

Later, that month, a copy of the memorandum was produced in the Legislative Assembly by one of the People’s Representatives, ‘Akilisi Pohiva. It is clear from the evidence that the General Manager and some of the plaintiff’s senior colleagues suspected it had been passed on by the plaintiff. The plaintiff denies this and, again, there is no evidence to support the allegation against him.

On 6 July there was a meeting of the TTC Monitoring Committee at which the General Manager submitted a report answering the plaintiff’s memorandum and concluding, "The ASR conclusions of Mr Fonua is therefore unacceptable and wrong". He includes comments by other senior employees also refuting the plaintiff’s conclusions and recommends that a short answer be submitted to Parliament.

The minutes of that meeting show that the plaintiff was given an opportunity to answer these points and to present and speak on some further papers. It is recorded that he pointed out to the Committee that his memorandum of 3 June had been intended as a working paper for Management to consider. He also stated that he was astonished to find his paper had fallen into the hands of Mr Pohiva and confirmed that he had never discussed it with him.

It appears that the Committee did not accept the assertions of the plaintiff regarding the responsibility of the commercial division and so the matter was adjourned to allow the Management Committee to see if there was any ‘further and accurate information’ available.

The Management Committee met in the morning of 8 July 1999. Present were the General Manager, Chief Accountant, Chief Commercial Officer, Engineer, Radio, and the plaintiff. Again the meeting considered the various reasons for the ASR and concluded that the plaintiff’s conclusions were incorrect and erroneous. The meeting also concluded that the revenue growth of the TTC was good and was the result of ‘efforts of all staff and the good direction of the Board". The minutes then record:

"Frequent Letters of Mr S.Fonua, Chief Engineer: The meeting expressed grave concern over the many letters that have been written by the Chief Engineer and which are damaging the good reputation of TTC and are now affecting the Chairman and Members of the Board.

The Chief Engineer denies that he did not (sic) distribute his letter outside of TCC and that he makes his written submission for the good of TTC. The Chairman made some fatherly advice to Mr. Siosaia Fonua and informed him that everyone are pointing their fingers at him for all the problems we are facing now. The letters that he has been writing are not for the good of TTC for he keeps on bringing up cases that have long been settled; blaming other people for his own faults; and giving wrong information.

The Meeting noted the responsibilities of the Chief Engineer to do with the TTC Network and he should be accountable for the blames he raised."

It was also agreed that a letter be sent to Parliament correcting the information provided in the plaintiff’s letter. The Monitoring Committee met later the same day and discussed the report of the Management Committee and then adjourned to the following day 9 July 1999. It is clear from the minutes that the plaintiff was again given, and took, the opportunity to explain his views on the ASR issue. The meeting then made its conclusions on the matter:

"The meeting did not accept the accusations and allegations made in the ... memorandum of 2nd June 1999 ... based on the followings:

- the information and statistics he provided on Call Failures were incorrect and misleading.

- he made wrong interpretations of Cutler and Company’s Report on revenue from international traffic.

- he made a wrongful accusation of loss of more than $5 million from international traffic.

- he avoided his technical responsibilities on faults in the TTC Network and wrongfully blamed the Chief Commercial Officer."

It was also decided that a reply should not be sent to the Legislative Assembly.

The meeting agreed to submit its report and findings to the Chairman and Board of TTC. Consideration of the other letters of complaint was deferred to the next meeting of the Monitoring Committee.

That meeting took place on 12 July 1999 and was devoted entirely to complaints made by the plaintiff to the General Manager which he, in turn, had submitted to the meeting. They related to the Tonga Domsat Project, the contract between NEC and TTC and the Cellular Mobile Telephone System. It is not necessary to go through them in detail but the minutes are full and the conclusion of the Committee in each case was that any faults lay with the Chief Engineer.

There was discussion of a further letter written on 20 May 1999 to the General Manager seeking the concurrence of the Board for the plaintiff to file a complaint to the police about an alleged death threat made to him by the General Manager at a Management Committee meeting on 16 March 1998. It was pointed out that the Board had already directed the plaintiff to take the matter to the police himself. That direction had been made in April 1998 and no reason is recorded why the plaintiff had again raised it so long afterwards.

The conclusions of the meeting were:

"The meeting noted that there is a lot of differences between the Chief Engineer and the General Manager and for the good of TTC and their own good, one of them should resign and leave the services of TTC. An example of a similar case from the Ministry of Finance was brought up. The meeting concluded with an advice to Mr. Siosaia Fonua, Chief Engineer to submit his resignation from the services of TTC no later than Tuesday 20 July 1999. The following serious misconduct of Mr. Siosaia Fonua, Chief Engineer, were noted:

(i) Wrongful allegation of loss of revenue to TTC of more than $5 million from international traffic.
(ii) Provision of erroneous and misleading information and statistics on call failure i.e. ASR or Answer Seizure Ratio.
(iii) Wrongful blaming of other staff for is own technical responsibilities on faults in the TTC Network and wrongful accusation and recommendation for the dismissal of the Chief Commercial Officer.
(iv) Unilateral cessation of his responsibilities as Tonga Domsat Project Manager, without permission of the Board of TTC or the General Manager.
(v) Acts of insubordination and incompetence in undertaking his duties as Project Manager of the Tonga Domsat Project.
(vi) Wrongfully made accusation that NEC repeatedly broke the contract and TTC opted to take no action.
(vii) Wrongful accusations of the General Manager on cases on withdrawal, commissioning and payment to Stanilite Company Ltd, on the Cellular Mobile Telephone System (CMTS)."

In Court, the plaintiff produced his copy of the documents presented at this meeting including the paper written by the General Manager concerning the Domsat Project. It concludes with two recommendations. The first is that the plaintiff should be given a final notice in writing to submit his final report and the second is to note the "acts of incompetence and insubordination while he performed his duties as Project Manager of the project".

The plaintiff wrote notes indicating that the first recommendation was accepted and, for the second he wrote:

"2. 1 week to resign, or fakamatala (explain), meeting"

In his evidence, he said that the conclusions of the meeting as shown in the minutes did not include any reference to the opportunity to explain as he had noted on his papers. He agreed he was told to resign. He had his reservations because there were steps to be followed and he could not recall staff having been disciplined by the Monitoring Committee. He recalled there was a discussion of what would happen if he did not resign although he did not elaborate in his evidence.

On 16 July 1999 the plaintiff was given a letter from the General Manager dated 13 July:

"Relation between Mr. Siosaia Fonua, Chief Engineer and the General Manager, other Management Staff of TTC

I make reference to the meetings with you of the TTC Monitoring Committee on Tuesday 6^th, Thursday 9^th, and Monday 12^th, July 1999 on your letters of complaints and your differences with the General Manager and other Management staff of Tonga Telecommunications Commission. It is now up to a point that some one has to move out in order for the services of TTC to be executed smoothly and effectively.

You well recount all the issues considered at the above meetings and that the blames fall at your side. It was therefore advised to you that for the good of Tonga Telecommunications Commission and your own good, it is advisable for you to tender your resignation from the services of TTC and to submit your letter by Tuesday 20^th July 1999."

The plaintiff said in evidence that he wrote a resignation letter. He knew the consequences if he did not resign. He was disappointed because he was meant, according to his recollection and his note at the time, to have a week to explain. However, he handed in his resignation letter dated 20 July 1999 before the meeting that day:

"At the 12 July 1999 Tonga Telecommunications Commission Monitoring Committee Meeting, a decision was made for the Chief Engineer to resign from the Tonga Telecommunications Commission or provide an explanation within one week. Following the decision, a letter from the General Manager dated 13 July 1999 was also received at home on the 16 July 1999.

According to the best of my recollection, the decision was mainly based on the memorandum of Mr Siosaia Fonua, Chief Engineer, Tonga Telecommunications Commission that was distributed in Parliament and the DOMSAT Project Final Acceptance Certificate.

I hereby submit my letter of resignation as a Chief Engineer from the Tonga Telecommunications with effective from three (3) months after the notice is received. It is kindly requested to consider the undersigned is due for annual leave on the 30^th June 1999.

Kindly accept my apology and I sincerely regret the damages and inconvenient caused to the Chairman of the Board, Baron Vaea, members of the Tonga Telecommunications Commission Board, Tonga Telecommunications Commission and staff. Letters of apologies to the Chairman of Board Baron Vaea and the chairman of the Monitoring Committee Hon. Clive Edwards are enclosed for onward transmission."

At that meeting, the plaintiff’s report on the final acceptance of the Domsat project was put in accompanied by a note from the General Manager describing it as incomplete and inadequate as it, in fact, appears to be.

Another paper by the General Manager was submitted to that meeting also. It is headed "Disciplinary measures to be taken against Mr. Siosaia Fonua, Chief Engineer" and refers to the Monitoring Committee’s advice to the plaintiff to submit his resignation. It incorrectly refers to the plaintiff having been given until 13 July and deals with the fact that no letter had been received. By the time of the meeting, of course, he would have had the plaintiff’s letter of that date but the contents of the General Manager’s note indicate what was to happen if no such letter was forthcoming. It repeats the "serious misconducts" referred to in the minutes of the meeting of 12 July and continues:

"The above misconducts would form the charges to be made against Mr Siosaia Fonua in the event of the next step, which is suspension/termination. These charges are required to be further considered and agreed on. The decision for his suspension/termination of appointment rests on the Board of TTC. The TTC Legal Counsel would be able to assist on the wording of these charges; checking the evidences; and drafting of the letter of suspension or termination.

The issue is here submitted for the consideration of the Honourable Chairman and Members.

Recommendations:

1. That the charges against Mr. Siosaia Fonua, Chief Engineer, be submitted along with relevant documents to the TTC Legal Counsel for his legal opinions.
   
2. That the TTC Legal Counsel be requested to draft the letter of
   
   • (i) Suspension, or
   • (ii) Termination of appointment

(as may be considered and decided by the Monitoring Committee)

3. That following the receipt of the opinion and draft letter from the Legal Counsel, that full submissions be made to the Board of TTC for final decision on this case."
   

As events turned out, the Committee had the resignation letter by the time the meeting took place and so the recommendations did not need to be considered. However, I consider the note significant in this case.

The plaintiff continued to attend his workplace until he received a further letter from the General Manager dated 29 July 1999:

"I make reference to your letter of 20^th July, 1999 submitting your application for resignation from your post of Chief Engineer, in the services of Tonga Telecommunications Commission. The board of TTC, in its meeting of today, 29 July, 1999, carefully considered your application, and based on the authority vested on the Board, decided to accept your resignation.

Your resignation is therefore effective from the date of the Board decision, which is today, Thursday 29 July, 1999. The required three months notice of resignation have been waived. Your leave entitlement of ninety five days will be paid to you in a lump sum. You will also be paid a gratuity equivalent to three months salary.

I take this opportunity to extend to you our sincere appreciations of your faithful and hard work during your years of service to TTC since 1978. We extend to you our best wishes and hope that the trainings and experience you gained during your time with TTC will assist you in your new career."

That money was paid to the plaintiff and, on 9 August 1999, the plaintiff wrote to the Manager, TTC:

"Receipt under Protest

"I acknowledge receipt of the sum of $14,167.81 being your payment to me of my entitlement of holidays to which I am already entitled and of a gratuity of 3 months salary which you are paying to me in lieu of any entitlement by me to any pension or other benefits.

I hereby inform you that I receive the gratuity under protest, that I do not agree that the sum you have now so paid to me is all that I am entitled to and I reserve to myself the right to claim and sue for the sum or sums to which I am fully entitled in respect of my long service to the commission for some 28 years and for damages in respect of your requirement that I resign from my employment with the Commission."

Since then, it is clear the plaintiff, who was 49 years old at the time he ceased working for TTC, has made considerable but unsuccessful efforts to obtain alternative employment in the telecommunications field including application for the post of General Manager of TTC following the resignation of Lemeki Malu shortly after his own resignation.
The main thrust of the plaintiff’s case is that he was effectively dismissed. His resignation was forced on him. He offered it because he was told to and was sure that if he did not he would be dismissed because the decision had already been made. He points out that there are proper procedures for dismissal and suggests they were not followed.

I do not need to go through the procedures for dismissal. The plaintiff has not persuaded me on the balance of probabilities that he was forced to resign. It is all too clear that the point had been reached where the General Manager was going to recommend disciplinary action against the plaintiff. The Monitoring Committee had accepted there were grounds for such action and, in order no doubt to offer the plaintiff an alternative, suggested he should resign.

There is no doubt that, in deciding whether to accept that advice, the plaintiff considered the alternative and the risk of dismissal. Resignation, as he agreed with counsel for the defence, would allow him to seek further employment in that field. Dismissal would be a serious bar to any hope of future employment in a position of responsibility in the communications industry.

I am satisfied he considered it the better option and made a free decision. The note prepared by the General Manager for the meeting of 20 July 1999 when he thought the plaintiff had not decided to accept that course, shows that the intention was to charge the plaintiff and to put the matter through the proper channels. Had the plaintiff decided not to take the option of resignation, he could have challenged the charges under the usual disciplinary procedures. If successful, he would have retained his position but he decided not to take that more risky option.

He has devoted a considerable time in the witness box to maintaining that he was correct in all he did. He was a man of considerable experience with TTC. I have no doubt that, had he thought he could have succeeded, he would have taken the option of fighting it through the Commission procedures. He complains that the proper procedures were not followed but I am satisfied that no decision had been made to dismiss him by the time he was offered the option to resign. The decision was to charge him and he accepted that he would be better to offer his resignation.
I should also refer to his claim that, had he remained in the employment of the Commission he would have been the certain successor to the General Manager. He told the court that such promotions were always made on seniority although he did later agree in cross-examination that merit was also part of it.He produced the TTC Staff Regulations and it is clearly stated in those that promotions are to be based on the capabilities of the person to fit the job properly and it is only if there are two or more staff members who are equally fit to do the job that seniority becomes the determining factor. In the end, the only basis of this part of his claim appears to be that, in past, happier times, the General Manager, Lemeki Malu, had told him he would succeed to his position. Those statements, it need hardly be added, were made prior to the events of 1998 and 1999 which resulted in such public disagreements between the two men.

The only matter left is the nature and size of the award given to the plaintiff when his resignation was accepted. In his letter of 9 August 1999, the plaintiff referred to the gratuity of three months salary as being "in lieu of any entitlement by me to any pension or other benefits".
It is not apparent where that assumption comes from. In his letter of 29 July the General Manager states that the requirement of three months notice had been waived. No such waiver had been requested. In those circumstances the plaintiff was entitled to continue working and drawing his salary for that period. It may well have been that the Board did not want him continuing to work but I am satisfied the payment of three months salary was the plaintiff’s entitlement and was not a gratuity.

I can see nothing in the evidence to support the suggestion in the plaintiff’s letter that the payment of that ‘gratuity’ was in lieu of any other entitlement. The defence required proof of any such entitlement or alternatively denied it was liable, which may explain the reference to payment in lieu. However, there is no evidence from the defence and the Court cannot speculate.

The reference to pension rights is in paragraph 7 of the statement of claim:

"The Commission had a pension scheme at the time under which a staff employee was entitled to a pension upon attaining 50 years of age, which was calculated as follows:

(a) upon serving 15 years continuously, he was entitled to one-third of the salary he held at the rate of his retirement, and
(b) for every complete year of service after the first 15 years he was entitled to an additional one-sixtieth of the salary he held at the date of his retirement, up to a maximum of two-third of that salary.

The employee was entitled upon his retirement to elect either:

(i) to draw his full salary for 5 years in one lump sum payment, or
(ii) to draw his pension half monthly for the rest of his life.

Retirement was compulsory at the age of 60 years unless the special service of the employee was needed by the Commission."

The defence pleaded states:

"7. It has no knowledge of and therefore requires the plaintiff to prove the allegations in paragraph 7 of the Claim. As a further alternative, the defendant says that it is not bound by those terms and conditions."

The only evidence of any pension rights was in the evidence of the plaintiff. He told the Court that pension entitlement was adopted from Government procedures. It was not written but was a standard procedure. He stated he should get two-thirds of his salary for 5 years or a pension ‘continuously’. He referred to another employee who had resigned in 1999 or 2000 and was paid a pension in that way. None of that was challenged in cross-examination and no evidence was called to rebut it. In the absence of any final submissions, it is difficult to ascertain what is the defendant’s position on that.

That there is some provision for pension entitlement is supported by the Staff Regulations. Section 13.2 gives any staff member the right to resign on giving the requisite notice or salary in lieu. Once he has resigned, the Personnel Officer shall ensure that all Commission equipment is handed over in good condition. The regulation allows the last month’s salary to be withheld ‘together with all other Provident fund etc entitlements’ until Commission property has been handed over and all ‘outstandings’ have been deducted. It concludes that a staff member resigning shall receive his entitlements as provided under the Provident Fund Scheme constitution/rules etc.’

I am satisfied on a balance of probabilities that the plaintiff resigned voluntarily when he realised the alternative was that he would be charged and I am equally satisfied that he is, therefore, entitled to any pension or provident fund payments which are due on resignation.

Unfortunately, there is insufficient evidence of the terms or scale of any such scheme. I am unwilling to make an award on the skeletal description given by the plaintiff in his evidence. However, I am satisfied, in the absence of any evidence to the contrary, that the plaintiff has proved the existence of such a scheme and his entitlement under it.

I shall adjourn the case to chambers on 13 January 2004 at 9.00am. On that date, I wish to hear whether the parties have agreed the pension and/or provident fund entitlements of the plaintiff. If there is no such agreement, I shall fix a date for evidence and further submissions. Such a hearing will be confined to the nature and scale of pension or other entitlements and not the liability of the defendant to pay.

NUKU’ALOFA: 11 December, 2003.

CHIEF JUSTICE