Ferrieux Patterson v Vanuatu Maritime Authority [2004] VUSC 50; Civil Case 117 of 2003 (7 September 2004)

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IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

In a first amended Supreme Court claim filed on 25 March 2004, the Claimant sought damages under an employment claim, a common law claim, a defamation claim, and general damages and exemplary punitive damages in the total sum of VT24, 500, 000 as specifically outlined in the claim itself.

In a defence, the Defendant filed what was virtually a blank denial of the allegations and denied that the Claimant's dismissal was unlawful and that three months notice was reasonable in the circumstances and that, as far as the claim for defamation was concerned, the words used were true in substance and in fact and were fair comment made in good faith without malice and the facts were matters of public interest.

The Defendant is an entity created by the Vanuatu Maritime Authority Act No. 29 of 1998. It seems that on or about 30 September 2001, the Claimant and the Defendant entered into a written contract of employment (the contract) (see pages 17-42 of Claimant's Document Book (CDB).

The Claimant was employed by the Defendant as Director of Corporate Services and on or about 18 December 2002 the contract was varied by agreement in writing in relation to severance allowances.

On 2 May 2003, the Defendant suspended the Claimant for one month (See page 46 CDB).

On 4 June 2003, the Defendant's contract of employment was terminated by letter of that date (see page 92 CDB). The Claimant alleged that the dismissal for gross misconduct was unlawful and that the Defendant had failed to inform the Claimant adequately or at all of any assertions or charges of misconduct against her and she was denied provision of written questions and legal counsel during an interview on 3 June 2003. It was contended by the Claimant that the decision to dismiss her was unreasonable, unlawful and unjustified and amounted to a wrongful repudiation of the contract. The Claimant contended that she endeavoured to mitigate her loss and quantified her loss at either the balance of the contractual or term or reasonable notice.

On 5 May 2003, the Defendant issued a press release to Radio Vanuatu, which was read out on national midday radio on 6 May 2003(see page 48 CBD).

On 4 June 2003, the Defendant made another press release concerning the Claimant which was broadcast on the radio in three language on 4 June 2003 and published in the Trading Post on the same date (see page 93 CBD).

The Claimant contended that the words were defamatory of her in her professional and personal reputation and were injurious to her general reputation.

No apology or retraction of either of those releases has ever been offered to the Claimant.

Judgment was entered for the Claimant against the Defendant pursuant to Rule 18.11 of the Civil Procedure Rules No. 49 of 2002 and the reasons for the entry of that judgment was set out in written memorandum of the Court dated 23 August 2004.

It is clear that the Claimant's termination of employment was unjustified. The Defendant has chosen not to dispute that by way of sworn statement despite being given ample opportunity to do so and ordered to do so as far back as March 2004 and in subsequent orders.

I am of the view that as the Defendant's termination of the agreement was wrongful, the Claimant must be recompensed for the outstanding amounts due under the contract.

As the Claimant's contract was four years commencing on 29 October 2001 and as at 3 April 2002 her salary was VT173, 000 per fortnight, as at the dismissal date of 4 June 2003 there were fifty nine two-weekly periods outstanding on the contract. Accordingly the amount outstanding on the contract was as follows:

It has been uncontested that there is unpaid holiday pay due to the Claimant as set out in the statement of claim in the amount of VT346, 000.

To that must be added severance allowance on the basis of the variation of contract of one month per year of contract being four months salary which is as follows: -

In addition, there are payments to be made to the Vanuatu National Provident Fund in accordance with the statement of claim in the sum of VT653, 940.

I agree with the submission that as far as the claim for defamation is concerned the words contained in the publications which I have referred to above were defamatory and injurious to the Claimant in her personal and professional reputation because as alleged they inferred that the Claimant was a person who misconducted and neglected her duties and breached her contracts and thus threatens the integrity and reputation of any employer.

On a professional basis the words injured her reputation in that they inferred that the Claimant was a person who was employed in high office and misconducted herself and neglected and breached her duties to the extent that her actions threatened the integrity and reputation of her employer and any prospective employer.

The consequences clearly manifested themselves by creating the situation when the Claimant has been unable to obtain further employment and that is, in my view, clearly a result of the press releases of the Defendant. That is not disputed except in the pleadings themselves.

In the case of Moli v Heston [2001] VUCA 3; Appeal Case No. 11 of 2000, which was in a case where judgment as to liability was entered and damages thereafter were assessed, an award as to damages in relation to a front page newspaper story alleging serious sexual misconduct by the Claimant with staff was made in the sum of VT3, 000, 000 for compensation and VT2, 000, 000 for punitive damages.

As counsel for the Claimant has submitted in this case, proof of actual loss is difficult but the continuing lack of employment despite applications for numerous jobs, is indicative of loss to the Claimant.

It is my view that the award in this case in relation to the defamation claim should be in the sum VT3, 000, 000 for compensation.

As in the Court of Appeal case there are circumstances in this case which make it appropriate for an additional award of punitive damages because the award of compensatory and aggravating damages is insufficient to punish the wrong doing. It is clear that the Claimant carried out her duties competently and thoroughly and there has been no retraction or apology for the press releases.

The Claimant was given no advice of the particular allegations of various misconduct and was not given the opportunity to respond properly nor to be legally represented at the hearing as a consequence of which she was dismissed. It seems to me that there were no proper reasons for the press releases and those factors, as in the Moli case, are so reprehensible that they deserve condign condemnation and call for and require additional punishment.

Accordingly there will be an award of additional sum of VT2, 000, 000 by way of punitive damages.

Quantum of this claim is accordingly fixed as follows in accordance with the above findings: -

Amount due on Contract	10, 207, 000
Holiday Pay	346, 000
Severance Allowance	1, 384, 000
National Provident Fund	653, 940
Compensation	3, 000, 000
Punitive Damages	2, 000, 000
	VT17, 590, 940
	===========

As to the question of costs I will hear submissions as to that from counsel once this written decision has been delivered.

Supreme Court of Vanuatu

Ferrieux Patterson v Vanuatu Maritime Authority [2004] VUSC 50; Civil Case 117 of 2003 (7 September 2004)