Masing v Government of the Republic of Vanuatu [2004] VUSC 59; Civil Case 001 of 2004 (17 June 2004)

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

Civil Case No. 01 of 2004

BETWEEN:

THEOPHILE MASING
Claimant

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice Treston

Mr. Yawah for the Claimant
Mr. Loughman for the Defendants

Date of Hearing: 15th June 2004
Date of Judgment: 17th June 2004

JUDGMENT

CLAIM

In a Supreme Court claim filed on 7 January 2004, the Claimant claimed against the Defendant damages, interests and costs for unlawful termination of his employment with the Government from February 1993 until October 2003 when his employment was terminated. At that stage the Claimant alleged that he held a post of a scholarship officer. The Claimant alleged that his employment was terminated on 7 October 2003 by a letter dated 10 October 2002 (sic) on the basis of gross misconduct when he was dismissed without notice. He alleged that the reasons for terminating his employment contract were unfounded and unsubstantiated by valid evidence and thus his termination was unjustified and illegal. He contended that he suffered loss and damage being 3 months salary in lieu of his notice and loss of severance, VNPF and annual leave entitlements. In a subsequent document filed on 11 March 2004, the Claimant set out particulars as to his damages as follows: -

"The Claimant receives a monthly salary of VT80, 000

The Claimant entered employment contract with the

Defendant on 1^st of February 1993

Severance - 80, 000 x 11 yrs = VT440,000

2

3 Months Notice - VT240, 000

Annual Leave - VT80, 000

for 2003

Damages for unjustified dismissal pursuant to Section 56 (4) of Employment Act

- Exceeding but say (440, 000 x 4) = VT1, 760, 000

Total damages claim = VT2, 520, 000"

In an amended defence the Defendant agreed that the Claimant was permanently appointed to the Public Service on 1 December 1993 and that at the time of his termination, he held a position of Scholarship officer. The Defendant admitted that the Claimant was dismissed from the Public Service on 7 October 2003 but denied that his termination was unlawful. The Defendant alleged that the Claimant's termination was justified because he had been guilty of serious misconduct and had been found guilty of seven disciplinary offences by the Public Service Disciplinary Board on 12 September 2003. The Defendant contended that it was entitled to dismiss the Claimant without notice for serious misconduct under the provisions of section 50(1) of the Employment Act [CAP. 160] and contended further that the Public Service Commission had authority to terminate the Claimants' employment under section 29(1) of the Public Service Act No. 11 of 1998 and further contended that the Claimant had been paid his outstanding leave and repatriation costs entitlements of VT195, 077 and VT33, 835 respectively on or about 28 October 2003 and 15 December 2003.

HEARING

The matter had proceeded normally through a conference on 10 February 2004 and various orders were made and through a trial preparation conference on 6 April 2004 when orders for the Claimant to make disclosure and for mutual inspection and for filing and service of sworn statements were made. Trial dates were set for 9am on 15 and 16 June 2004.

On the day before the hearing at 14.25pm a consent memorandum signed by both parties was filed in this Court. It was not made available to the preceding judge until the next morning shortly before the hearing was due to commence at 9am.

It transpired that the adjournment was being sought by the Defendant on the grounds that the lawyer running the trial for the Defendant was overseas and that the State Law Office was short staffed.

Having heard from each counsel the application for adjournment was declined on the basis that the hearing had been allocated for some ten weeks and arrangements should have been made earlier by defence to arrange for counsel. An application for an adjournment even by consent, late on the afternoon prior to trial is too late.

Mr. Yawah for the Claimant elected to call his client to give evidence and Mr. Loughman for the Defendant cross-examined the Claimant and elected to call no witnesses although he made submissions in closing.

EVIDENCE

Mr. Massing had filed a sworn statement confirming that he was terminated without any benefits by the Defendant on 7 October 2003 for serious misconduct in accordance with a letter from the Public Service Commission, a copy of which he annexed to his sworn statement. It is stated as follows: -

" 10 October 2003

Private and Confidential

Mr. Theophile Massing

C/- Scholarship Office

Department of Education

Port Vila

Dear Mr. Massing,

DISMISSAL FOR CAUSE

I write to formally advise that the Commission at its meeting No. 19 of 2003 held on 07 October 2003 (Decision No. 11) decided to dismiss you from service without notice with effect from 07 October 2003.

The Commission has acted pursuant to the authority of Section 29 of the Public Service Act No. 11 of 1998. You have been dismissed for serious misconduct, being:

1. misappropriation of Public funds belong to the Government of Vanuatu
2. negligent and/or careless in the discharge of his duties
3. disobeying instructions given by a person having authority to give instruction
4. disregarding instructions given by a person having authority to give instruction.
   

The Commission determined that your past service is not exemplary.

On behalf of the Government of Vanuatu, I take this opportunity to thank you for the services you have rendered since your appointment with the Scholarship Office.

Yours sincerely,

(sign)

Laurent Rep

For Bill Willie

Acting Secretary

Public Service Commission Secretariat "

Mr. Massing said that he totally disagreed with the findings of the Public Service Commission and he maintained that he did not commit a serious misconduct in his job. He annexed a schedule containing details of the seven charges, which he faced which stated as follows:-

"NOTICE OF OFFENCE

DISCIPLINARY CASE NO: 03 OF 2003

To: Theophile Massing of the Training Scholarship

and Coordination unit

CHARGE 1

You are hereby charged that on or about May 2002 you improperly used government monies under your control, in that you used government money belonging to TSCU to purchase two airline tickets for your friends, Mr. M. Clement & M.T. Timothy to fly from Creg Cove to Port Vila.

Such acts being contrary to section 36 (1) (f) of the Public Service Act No. 11 of 1998

CHARGE 2

You are hereby charged that on or about November 2002 you improperly used government monies under your control, in that you used government monies belonging to TSCU to pay for an airline ticket to New Caledonia for Mr. Lolton Albano.

Such acts being contrary to section 36 (1) (f) of the Public Service Act No. 11 of 1998

CHARGE 3

You are hereby charged that on or about March 2002 you were negligent and / or careless in the discharge of your duties, in that you re-instated a scholarship to Mr. Serge Mwetu without following the proper procedures.

Such acts being contrary to section 36 (1) (c) of the Public Service Act No. 11 of 1998

CHARGE 4

You are hereby charged that on or about May 2002 you improperly used government monies under your control, in that you used government monies of approximately 100, 000 vatu to pay for car rental fees and to pay the excess for a car accident involving yourself and another TSCU staff member while visiting Vanuatu students in New Caledonia.

Such acts being contrary to section 36 (1) (f) of the Public Service Act No. 11 of 1998

CHARGE 5

You are hereby charged that between 1 September 2002 and 30 November 2002 you were absent from the office and from the official duties during working hours of duty without leave and valid excuse, in that you were absent from the office and attending matters unrelated to your duties.

Such acts being contrary to section 36 (1) (h) of the Public Service Act No. 11 of 1998

CHARGE 6

You are hereby charged that from September 2002 to July 2002, you disobeyed instructions given by a person having authority to give instructions, in that you disobeyed instructions given by your superior to complete a form that was designed to keep track on the payment of fees and allowances for students funded under the Vanuatu Government Scholarship Scheme.

Such acts being contrary to section 36 (1) (b) of the Public Service Act No. 11 of 1998

CHARGE 7

You are hereby charged that on or about November 2002 you disregarded instructions given by a person having authority to give the instruction, in that you continue to buy student air tickets from an unauthorized airline agency (Orchid Voyage).

Such acts being contrary to section 36 (1) (b) of the Public Service Act No. 11 of 1998

And you are hereby required to attend before the Board at the Public Service Commission on the 27 day of August 2003 at the hour of 8.30am and so from day to day until the charges against you are heard, to answer the said charges.

Dated at this day of 28 July 2003

(sign)

Chairman

PUBLIC SERVICE DISCIPLINARY BOARD "

Mr. Massing annexed to his sworn statement a true copy of his response to the allegations together with various documents which sought to challenge the findings of the Board and the Commission. He denied wilfully disobeying any instruction of his superior and alleged that he and his superior a Mr. Antoine Thyna had had a bad personal relationship together. He said that there had been lack of communication between them, he asked the Court to grant his claim.

Under cross-examination Mr. Massing said that he had denied all allegations and denied ever signing a report admitting the allegations made against him. He was then shown exhibit "A" being PSC Form 6-1 "Employee Discipline Report" and agreed that he had completed the Employee's certification and response by ticking box 1 which said "I accept that the allegations made against me in this report are true".

Mr. Massing agreed that he had ticked that box and had signed the page with his signature although he had attached his letter of explanation to it. He accepted that the clear indication that that box was that he accepted that the allegations were true but in re-examination said that he meant he just accepted the allegations.

Under cross-examination, the Claimant further accepted that at the hearing he was asked by the Disciplinary Board after the allegations were made against him whether he wanted to call any witnesses. He conceded that he had been given the opportunity to call witnesses but had declined to call any and clearly said that he did not have any witnesses.

Under cross-examination, the Claimant agreed that he have been given the opportunity to have legal representation but had declined but then in re-examination he said that he could not recall that he had the opportunity to have legal representation but he agreed that he had appeared without a legal representative.

SUBMISSIONS

In a closing address under Rule 12.1 (f) of the Civil Procedure Rules No. 49 of 2002 (the rules), Counsel for the Claimant submitted that the dismissal of his client had been unjustified. Counsel spent some time in addressing the evidence of the particular charges and spent some time in answering a query from the Court in relation to the first charge as to how it could be that the airfares of the Claimant's relatives were dated and credited in May 2002 and the Claimant was dismissed in 10 October 2003 and there was a receipt for payment of those airfares by those relatives dated 28 October 2003 which was after the date of dismissal.

Counsel submitted that the defence could not succeed because there was no proof by the defence that there had been a decision of the Board dismissing the Claimant and that there should have been copy order in terms of the charges proved by the defence.

Counsel for the Defendant submitted that the simple issue that the Court must determine was whether or not there was an unjustified dismissal. The Claimant had signed a form and stated in front of the Court that he had admitted the allegations made against him. The allegations were serious. The Claimant admitted that he had had the opportunity to call witnesses in front of the Disciplinary Board and to have legal representation but had declined both of those courses. He had admitted in the Court hearing that he signed the documents saying that he accepted that the allegations made against him in the report were true and if he had been not satisfied with that decision he had the right of appeal to the Supreme Court under section 38 (1) of the Public Service Act. He had not taken that course nor had he filed a claim for Judicial Review of the decision of the Commission under the rules. It was submitted that the claim should fail as the Claimant had not been able to establish that the dismissal was unlawful.

LAW

This is a civil case where the Claimant must establish his allegations on the balance of probabilities. There is no burden of proof on a Defendant.

Section 50 of the Employment Act provides as follows: -

"SERIOUS MISCONDUCT

(1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.

(2) None of the following acts shall be deemed to constitute misconduct by an employee -

• (a) trade union membership or participation in trade union activities outside working hours, or with the employer's consent, during the working hours;
  
• (b) seeking office as, or acting in the capacity of, an employee's representative;
  
• (c) the making in good faith of a complaint or taking part in any proceedings against an employer
  

(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he had given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employer shall be deemed to have waived his rights to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct."

Section 38 (1) of the Public Service Act provides that a person who is dissatisfied with a decision of Board may appeal to the Supreme Court.

Part 17 of the rules provides that a person may claim for judicial review of a decision made by a person who should or should not have made a decision.

FINDINGS

I am of the view that the Claimant has failed to prove his claim on the balance of probabilities. The facts from his own evidence are against him. He admitted that he signed the Employee Discipline Report Form stating that he accepted that the allegations made against him in the report were true and I do not accept his evidence that he thought he was simply accepting the form of the allegations and not their content. That defies common sense. In addition, I did not find the Claimant's evidence to be satisfactory. He had earlier and unequivocally said that he did not sign a such document and in a further example of his unreliability he said in cross-examination that he was given the opportunity to have legal representation but declined it and then in re-examination said that he could not recall whether he had been given the opportunity to have a legal representative when he appeared at the hearing of the Disciplinary Board. I found the Claimant to be unreliable, unconvincing and contradictory.

More significantly, the Claimant completely failed to adduce any evidence as to his alleged damages. There was no evidence adduced even to the amount of his monthly salary at the time of termination. There was no evidence given as to whether he had any entitlement to any annual leave in 2003 and as to his claim for damages the Court of Appeal in Melcoffee Sawmill Limited v Neel Croucher and George [2003] VUCA 24; CAC 18 of 2003 held that any amount of special damage under section 56 (4) of the Employment Act must be proved and there has been no proof of any special damages at all by this Claimant. In short, the particulars as to damage which were filed were allegations only and must be substantiated by proof. In this case there was a complete absence of any such proof. There were no details as to that contained in the sworn statement of the Claimant nor in the additional evidence adduced by him at trial and the refusal of the adjournment can have had no effect on such a basic requirement of proof, in my view.

SUMMARY

It is clear that the Disciplinary Board considered that it had ample justification in finding that the Claimant had committed serious misconduct as defined by the legislation in relation to the seven charges which he faced. That was particularly so in view of the attitude that the Claimant had taken on his own admission in accepting that the allegations made against him in the report were true, by calling no witnesses, by requiring no legal representation and by simply tendering a letter which said "Firstly, I must put it to you that I do not accept the allegations in the report and I see them as misinterpreted issues. I am now giving my side of the story and request your urgent attention to my statements ..." No doubt that was taken by the Board as an explanation by the Claimant.

The Public Service Commission, faced with seven proven offences, had, in my view, proper grounds to dismiss the Claimant for serious misconduct, and the dismissal was quite justified. The Claimant was clearly given adequate opportunity to answer the charges and in the circumstances I am of the view that the employer could not in good faith have been expected to take any other course.

Significantly the Claimant did not seek to appeal the decision of Disciplinary Board nor to review the decision of the Public Service Commission and has not proved such basic elements of his case as his income, his holiday entitlement and his other alleged damages.

I find that there is no weight in the submission made on his behalf that the Defendant has failed to prove the order of the Disciplinary Board in accordance with the charges. That requires a reversal of the onus of proof which is not the law. It is the Claimant who must prove his allegations on the balance of probabilities and for the reasons above, he has failed to do that.

CONCLUSION

For those reasons I give judgment for the Defendant against the Claimant and order that Claimant pay costs to the Defendant on the standard basis as agreed or as determined by the Court.

Dated AT PORT VILA, this 17^th day of June 2004

BY THE COURT

P. I. TRESTON
Judge