Lemoto v Gardiner [2008] TOSC 4; CV 299-2007 (8 February 2008)

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

CV 299 of 2007

BETWEEN:

TAVITA TOMINIKO F.V. LEMOTO
Plaintiff

AND:

SUE GARDINER
First Defendant

AND:

PACIFIC FORUM LINE LIMITED TRADING
Second Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr Tevita P. Tupou for the plaintiff and
Ms Dana E. Stephenson for the defendants

Date of judgment: 8th February, 2008.

JUDGMENT

The Plaintiff’s claim is for damages for wrongful and unfair dismissal against the defendants following the loss of his job as cargo manager of AIR NEW ZEALAND. He seeks general damages in the sum of $50,000 and special damages in the sum of $536.46 per fortnight from 13th November 2006 until date of judgment against both defendants jointly and severally.

This case is concerned with the relatively straight forward question of whether or not the plaintiff had been granted 6 months approved leave without pay from his position as cargo manager or acting cargo manager of AIR NEW ZEALAND. Additionally the plaintiff filed an amended statement of claim to the effect that the defendants were also under a duty of care to advise him, if long term leave was not approved, that he was at risk of losing his employment if he were to go on leave regardless.

WAS THE PLAINTIFF GRANTED SIX MONTHS APPROVED LEAVE WITHOUT PAY?

The 1st defendant, Sue Gardiner is the manager of and agent of the 2nd defendant, Pacific Forum Line Limited trading as Forum Travel. She is the manager of Forum Travel. They operate AIR NEW ZEALAND in Tonga and Ms Gardiner is responsible for the day to day running of AIR NEW ZEALAND and FORUM TRAVEL.

The plaintiff was employed by Forum Travel as a cargo clerk of AIR NEW ZEALAND from July 2004 until December 2005. From then until May 2006 he was employed as Cargo Manager although the defendants say that he was never confirmed in that position and that he was in fact the acting cargo manager in that period.

It is common ground that due to financial pressures the plaintiff wished to take a long period of leave as he believed that he could work in Hawaii and earn more money there, thus alleviating his financial problems.

The plaintiff says that in early 2006 he requested 6 months leave without pay but that it was not allowed by the CEO JOHN MACLENNAN. He says that he then saw Ms Gardiner in April 2006 and again requested 6 months leave without pay but that if he completed his business there he would return in 3 months. He said he had discovered that other employees had been given long leave without pay with the approval of Sue Gardiner. He says he saw her at the cargo shed in April 2006 and she agreed to his request informing him to fill in a leave form which he did and which Ms Gardiner signed. He says he then took the approved leave form to the front office and showed it to his wife (she also worked for AIR NEW ZEALAND) informing her that his request for leave had been approved, before taking it to the Chief Accountant MAKAFALANI SCHAUMKEL which is the normal procedure. He says the form was left in the in-tray of MR SCHAUMKEL and he returned to work. Then about a week later he says that he took his request for a discounted air fare to MELENAITE VEIKUNE the Travel Centre Manager who then processed it. He had requested that the ticket be on credit saying in evidence that this was authorised by Ms Gardiner. That is acknowledged as correct. The ticket was NUKU’ALOFA – AUCKLAND – HONOLULU – AUCKLAND – NUKU’ALOFA. The ticket was applied for whilst he was still employed and it was invoiced to his wife at AIR NEW ZEALAND.

The plaintiff says that he then proceeded on his leave without pay for 6 months, on the 13th May 2006.

The plaintiff says that the next thing that happened is that whilst on his leave in HAWAII he emailed Ms Gardiner on the 17th October 2006 enquiring about his job and about his return. That email says:

"Sue, I’ve appreciate everything that you’ve done so far especially allowing myself to take long leaves. I’m coming towards my time here and would like to know if I’ll still have my job like we both understood or you have other plans or I might have lost it already, I’d really like to know so I can plan ahead...."

Ms Gardiner emailed back to the plaintiff on the same day and said in part:

"I explained to you that we would certainly take you back when you returned as you are a good team member but that defends on us having a job available at the time. I can not take on additional staff when the business does not warrant it ......... But again I have to have a position available before I can employ staff ....... Hope you understand ... something could come up ..."

The plaintiff says that he next advised his wife that he had lost his job and it is said that his wife went to see Ms Gardiner saying to her that it had been agreed that the plaintiff would return to his job. His wife (‘ELISAPESI LEMOTO) said in evidence that she left the office without hearing a response.

The plaintiff next says that he went to Auckland on the 12th November 2006 in an attempt to meet with the C.E.O John Mac Lennan to get an answer as to why he lost his job when he had approved leave without pay. He says nothing was resolved and in a letter to MR MAC LENNAN dated 27th February 2007 he said:

"I went on a six months leave without pay which was signed and approved by Sue Gardiner ... without knowing why I got kicked out I wanted to approach PFL ... I was angry for being displaced without a reason ... up until now I have not been given a good enough answer why I got released ... she took my job and gave it away ... she has been unfair."

Thereafter the plaintiff issued these proceedings.

The defendant’s version of events is very different to the above.

It is the defendant’s position that neither Ms Gardiner nor anyone else ever signed a leave of absence form for the plaintiff approving a six month leave of absence from 13th May to 13th November 2006.

I make the following findings of fact:

It seems to me as a matter of common sense that it would be unlikely that a person recently promoted to the position of acting cargo manager of a busy international airline would be permitted to take off for 6 months to pursue other employment with a guarantee that his job would be available upon his return.

The simple fact is that there is no record or copy of any such leave form. The plaintiff has not produced one. He appears to have said that he took it to the Chief Accountant MR MAKA SCHAUMKEL and gave it to him. In other evidence he says he left it in MR SCHAUMKEL’S in-tray. Mr Schaumkel has testified that he never saw any such form. His evidence, which I accept, is that the originals of all approved leave of absence forms were and are forwarded to the defendant’s head office in Auckland. There is no record of it having been sent to Auckland and there is evidence, which I again accept, that a search of all pertinent records in Auckland shows that there is no such leave form in existence. Mr Schaumkel says he never saw it and obviously never sent it. The defendant’s offices were burnt down in the riots of November 16th 2006. A copy would have been left there. The plaintiff may have assumed that it therefore could not be shown that there was never a signed leave form in existence unaware that copies were forwarded to Auckland if they existed.

The policy of the defendants was not to grant such leave. The plaintiff says that he became aware that others had in fact been granted such leave. But the evidence is that the only leave granted of any length was a case of maternity leave and this was for period of 3 months. The second defendant’s CEO, MR JOHN MACLENNAN had instructed the first defendant not to grant the leave so that it would be very unlikely that Ms Gardiner would grant leave in defiance of that instruction.

In this case I accept the evidence of Ms Gardiner. She was an impressive witness and clearly a person of integrity and honesty. I think it can be discerned from the evidence that she is a very experienced and capable general manager as would be expected of a person in her position, that is the general manager and operator of a major international airline. Her evidence that she did not approve of or sign any such long leave without pay is supported by other evidence and clearly corroborated.

Ms Gardiner said that she had never granted 6 months leave of absence and she would not do so. She said that the plaintiff approached her in April 2006. This was at the cargo shed at the office of Air New Zealand. She says the plaintiff explained that he had desperate financial problems and he really needed to go to America where he could work and earn more money which he needed, to re-pay loans. She says she told him that it was not possible to give him this leave. She says she spoke to MR MAC LENNAN who confirmed that it would not be acceptable to the company. She relayed this to the plaintiff. She had told him that it was just not possible but she advised him that if, on his return, they had a suitable vacancy that she would be happy to employ him again. She said that the plaintiff came back 2 weeks later and pleaded for 3 months leave to go to Hawaii. She says she again explained to him that it was not possible. The plaintiff, she says, was upset and he said that he didn’t have a choice but that he would have to go. She says that she again said that his job could not be held open but that when he came back to come and see her and that if a position was available then he could be re-employed. She says that the plaintiff clearly understood this. The next day the plaintiff told her he would be leaving in Mid-May about the 13th (2006). She says that she then spoke to other staff about a suitable replacement and FAHINA FONUA was appointed as permanent cargo manager in Mid-May. The staff were all advised of this. She said that the plaintiff’s wife was aware. She said the next time she heard anything was when she received the email in October from the plaintiff. That is the email already cited.

FAHINA FONUA confirmed that she was appointed as permanent cargo manager and commenced in the second week of May 2006. She said in evidence that she understood she was taking over the plaintiff’s job – and it was not her understanding that the plaintiff was to come back to the job. Ms Fonua then gave some other evidence which I find confusing and conflicting. For example she said that Sue had said that "the plaintiff was on leave for 6 months but no staff were allowed to be on leave for 6 months". She also said that Sue had said to her that the plaintiff would lose his job as he not a good worker. She said she was introduced to the plaintiff as his replacement and she asked him to teach her the work. The plaintiff never said he would see her when he got back.

Evidence was called from KAPELI LANUMATA who had previously worked with the plaintiff in AIR NEW ZEALAND’S cargo section. He said that the plaintiff had told him that Ms Gardiner had approved his leave. I don’t think that carries much weight and in any event this witness agreed he was in conflict with AIR NEW ZEALAND and was also bringing a claim for wrongful dismissal. He appeared as particularly biased and I place little store on his evidence.

The evidence of Ms Gardiner is corroborated by that of LISA VEIMAU, the airport duty manager with AIR NEW ZEALAND. She was advised that the plaintiff’s request for 6 months leave of absence had been refused. He had requested this to go overseas and pay off his loan. She was asked to consider a replacement for the plaintiff and was involved in the decision to employ FAHINA FONUA.

Ms Gardiner’s evidence was further corroborated by MELENAITE VEIKUNE. She was the Travel Centre Manager at AIR NEW ZEALAND. She said she was advised by Ms Gardiner that the plaintiff would be leaving soon as he had applied for 6 months leave without pay and that "we do not give it" and that they needed to appoint someone else to replace him. She said she was surprised at this as the plaintiff had recently been appointed as acting cargo manager. She said FAHINA FONUA was appointed permanently to the position and she, Melenaite introduced FAHINA to the cargo staff. Her evidence is that she introduced FAHINA to the plaintiff and advised him that FAHINA was replacing him as cargo manager and Fahina said to the plaintiff that he had better show her the ropes She said Fahina started work and the plaintiff left the job. This was in May 2006.

I found Melenaite to be a most impressive witness who was patently honest and reliable. Her evidence was barely challenged in cross-examination.

Melenaite was then responsible for processing the staff discount airline ticket which the plaintiff applied for. This was the ticket to travel to Hawaii via New Zealand and return to NUKU’ALOFA. It might be thought that this is evidence supporting the fact that the plaintiff had been granted leave. But this does not follow because there is clear evidence that the plaintiff was entitled to such a discount ticket as long as he applied for it when still employed with AIR NEW ZEALAND. The fact that he was leaving thereafter did not change the fact that he was entitled to the ticket in any event and it was duly issued to him.

Melenaite confirmed that the plaintiff was never given a 6 months leave of absence without pay. She denied that there was ever any plot to get rid of the plaintiff.

There was evidence that this ticket issued to the plaintiff could only be altered within 3 months of issue. The plaintiff had managed to alter the ticket invalidly outside the 3 month period.

It is said on the plaintiffs behalf that the email of the 17th October 2006, from the plaintiff to Ms Gardiner, is consistent with and supportive of the plaintiff’s claim that leave had been approved. That is, it is said that the plaintiff expresses thanks to Sue Gardiner
"especially allowing myself to take long leaves". But the email is somewhat equivocal as the plaintiff then enquires if he still has a job. There is nothing equivocal about the defendant’s reply, that is, "I explained to you that we would certainly take you back when you returned as you are a good team member but that depends on us having a job available at the time."

The plaintiff’s wife ‘ELISAPESI LEMOTO said that on the day the plaintiff got his leave approved he came to her office in a happy mood saying that his leave had been approved by Sue Gardiner and that he showed her the form with Ms Gardiner’s signature on it which is a signature well known to her. I think firstly that it is unremarkable that a wife would seek to give evidence in support of a husband as best she can. But did she really see this signature? No one else has and the document simply does not exist. The plaintiff was determined to go to Hawaii and perhaps he needed to convince his wife that leave had been granted. Perhaps he did show her a leave form but I think it would be a bit unusual to then feel the need to indicate the defendant’s signature. She said he then took the form to Maka (the accountant). That is not quite consistent with Maka who says he told the plaintiff that the form had to be signed. I find her evidence to be questionable.

In my view the evidence is overwhelming that there was no such signed leave form and where there is no such form in existence Mrs Lemoto’s evidence does not satisfy me on balance, that she did see the form duly signed and approved by Ms Gardiner.

I found the plaintiff to be an unconvincing witness with too many contradictions in his evidence. I think his story is implausible and I do not accept his evidence.

CONCLUSION

On the facts as I find them to be I think the evidence is overwhelming that the plaintiff was never approved to take 6 months leave of absence without pay.

Certainly the plaintiff has not shown on the balance of probabilities that this leave had ever been approved or granted. It is implausible that it would ever be granted in the first place; it was against company policy; no such leave form exists; I accept the evidence of the first defendant that no such leave was granted and I do not accept the evidence of the plaintiff and his witnesses that it was.

I find that the plaintiff, driven as he was by financial pressures, was going to go to Hawaii to work and earn more money to satisfy his debts, come what may. He was advised by Sue Gardiner in unequivocal terms that such leave could not possibly be granted but that if he wished to rejoin the company he would be welcomed back provided that there was a position available at that time. He decided to go and left the job on or about the 12th May 2006 departing for Hawaii without approved leave, of his own volition and with full knowledge that the consequences of this would be that his job could not and would not be held open for him. He was not dismissed by the defendants. He, in effect, resigned or abandoned his job.

It would have been entirely unreasonable for the plaintiff to assume that he could leave his job without his employer’s approval and expect his employer to hold his job open for up to 6 months at his leisure.

In the circumstances where the plaintiff resigned his job there was no breach of any duty of care, as alleged, owed to the plaintiff. He was told quite reasonably that his job could not be held open for him for this length of time and he was generously told that he would be welcomed back if there was a position available at the time.

For all of these reasons the plaintiffs case is dismissed.

I give judgment for both defendants.

Costs are awarded to the defendants as agreed or taxed.

DATED: 8 February 2008

JUDGE