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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU Civil Case No .167 of 2015
(Civil Jurisdiction)
BETWEEN: | JONATHAN MANI Claimant |
AND: | CARPENTERS VANUATU HOLDINGS LIMITED Defendant |
Coram: Mr. Justice Oliver A. Saksak
Counsel: Willie Kapalu for the Claimant
Dane Thornburgh for the Defendant
Date of Hearing: 4th July 2017
Date of Judgment: 24th November 2017
_________________________________________________
JUDGMENT
__________________________________________________________________________________
Introduction
Facts
Allegations
Defence
Issues
Discussions
“ if the right to be heard is to be a real right when is worth anything, it must carry with it a right in the accused man to know the case against him. He must know what evidence has been given and what statements have been affecting him, and then he must be given a fair opportunity to correct or contradict him.”
“ the contract may be terminated by CHL ( Defendant) without notice on any of the following grounds:-
6.1 (a) Gross misconduct, wilful disobedience by Employee of a lawful or reasonable order from the Director/ Directors of CHL or its nominee.
(b)Where employee is guilty of misconduct by an act of omission or commission
that is inconsistent with employees due and faithful discharge of Employee’s
duties.
(c) Misuse or misappropriation of CHL’s funds or property by Employee’s duties.
(d) Habitual neglect of duties by Employee.
(e)Abusive use of toxicating liquor or drugs by Employee.
(f) Commission of and conviction for an Indictable offence in Vanuatu by Employee.
(g) Employee becoming of unsound mind.
(h)On any other ground on which CHL is entitled to terminate the contract without notice at common law.
6.2. Either CHL or Employee may terminate this Agreement by giving one (1)
month’s notice in writing to terminate.”
“ SUSPENSION FROM DUTY-OPERATIONS MANAGER CAPENTERS HARDWARE ( VANUATU) LTD
We regretfully notify to you that allegations against you can on the following matters are very serious to the level of terminating your employment with the company as this could be considered as gross misconduct with the reference to our employment contract.
Stock take los of VUV 10.7 Million form the recent stock take.
Missing stock of 3.534 loss of cement, noted subsequently to the stock take, where you have admitted of disposing a quantity of cement without any approval from the superior/ management.
However, the management decided to suspended(sic) you from duty of Operations Manager- Carpenters Hardware Limited with immediate effect whilst the above allegations of misconduct are investigated.
Appropriate investigations are already in progress by both internal parties as well as the investigators from the Police. In the course of the investigation you will be interviewed and will be invited to offer explanation or comment on the allegations. Any information which is gained during the investigation process may be presented at any subsequent disciplinary hearing.
During your suspension you will continue to enjoy the facility of the company accommodation provided and 50% of your contractual salary but you will not receive your holiday entitlements, company vehicle, mobile phone and the note book computer.
It is a term of your suspension that you are not required to attend work including relief work however should you wish to visit your place of work or any other establishment of Carpenters Vanuatu during your permission and arrangement with the management. Failure to seek such prior permission may be treated as serious misconduct.
You should remain available to the management during your normal working hours over the period of your suspension and attend meeting if required. You are not permitted to meet or discuss official matters with any of the Carpenters Vanuatu Group employee unless it has been permitted by the Management.
Yours Sincerely,
Carpenters Vanuatu Holdings Ltd
(signed)
Suren Abey Wicknema
Country CEO/Director
Cc: Commissioner of Labour
Geoffrey Gee and Partners, Company Lawyer.”
“ Further to the discussion you had with the undersigned country CEO/ Director of Carpenters Vanuatu Holdings Limited regarding the above matter, I am writing to confirm that you have been suspended from duty with immediate effect whilst the following allegations of misconduct are investigated.
“ Ackowledged receipt of this letter by signing and returning one copy of this letter.
Your Sincerely,
(signed)
Suran Abey Wiknema
Country CEO/ Director
I have read and accept the above
Jonathan Mani.... Date.................”
It is annexed by the claimant to his sworn statement exhibit C1 as “JM4”. The defendant annexed the same letter as “K” to the sworn statement of Lou Donchos but it is not on letter head. However it is not in dispute. It reads:
“Dear Sir,
Re: EMPLOYMENT TERMINATION FROM CARPENTERS HARDWARE LIMITED.
As you are aware you are currently under suspension from you employment.
You have been suspended as result of allegations against you for misappropriation or similar offences whilst in our client’s employ.
The Police have investigated the allegations. You have had ample opportunity to respond to those allegations.
Our client has now determined that they have no alternative then to terminate your employment.
The termination is effective immediately.
You will be provided with a certificate of your employment as required by section 52 of the Employment Act.
Your final pay will be calculated and available within 7 days. Our client requires you to vacate other company accommodation provided to you by 1 pm on Friday 15 November 2013. The property should be returned to them in the same condition as that which it was provided to you. A representative of your employer will meet you at the property at 1 pm next Friday. They will inspect the property with you, accept they keys from you and deliver your termination payment and certificate of employment.
In respect to the ongoing police prosecution your employer reserves all rights in respect to any misappropriate amounts.
Yours faithfully,
(Signed)
Nigel Morrison”
CC: Department of Labour”.
Q: It is fair to say you are fully aware of the allegations?
A: Yes, I am fully aware.
Q: What do you understand that to be?
A: Stock take losses, misappropriation and loss of cement.
Q: Is that why you were dismissed?
A: Yes.
Q: Have you read the statement of Lou Donchos?
A: Yes.
Q: Shown Document, page 2 paragraph 6 “Stock take Shortages” – VT10,700,000 lost. Do you agree that paragraph perfectly sets out the figure put to you?
A: Yes.
Q: Refer to Annexure C setting out the losses uncovered?
A: Yes I agree. Annexure C relates to cement.
Q: Refer to paragraph 7 – Do you agree with that paragraph?
A: I agree.
Q: Refer to paragraph 8 – Do you agree Police earned at 2 investigations?
A: I agree.
Q: 2 Investigations (a) by the Police and (b) by the Company?
A: Yes.
Q: Do you agree investigation by Company?
A: Yes.
Q: Do you agree some cement were destroyed?
A: I agree, I said something.
Q: As Manager you agree you were responsible?
A: I agree.
Q: As Operations Manager you were aware of procedures?
A: Agree.
Q: You agree there was procedure about how damaged stocks were to be dealt with?
A: I agree.
Q: That procedure is as per paragraph 9 of Lou’s statement?
A: Agree.
Q: And you did not do that?
A: Agree.
Q: You agree you dealt with that figure without consultation with Finance Department?
A: Agree.
Q: As a result Finance Department became suspicious. Annexure F – Statement to Police of Devaprige – Do you agree value of 3,544 was approximately VT2,6 Million?
A: Yes.
Q: Refer to paragraphs 12 and 13 – Suspension letter: Annexure “G”. Do you agree?
A: Agree.
Q: Did you receive this letter?
A: I received it.
Q: So you were aware of what allegations made against you?
A: Agree.
Q: As a result from October 11, 2013 you had an opportunity to put your case?
A: Agreed.
Q: And you had ample opportunity to address those issues?
A: Yes.
Q: And you did address them?
A: Yes.
Q: How did you address them?
A: I was arrested by the Police.
Q: Do you agree you were terminated because the Police arrested you?
A: Yes, agree.
Q: I put to you that is incorrect. There was a failure to follow company procedure when you damped cement and that had nothing to do with police investigations?
A: Agreed.
Q: Refer to October 11, 2013 letter.
A: I came after I was released next day and gave me the second letter.
Q: The police made a decision to arrest you, not Carpenters Group?
A: yes
Q: Not Carpenters Group?
A: No
Q: Refer to paragraph 14 Annexure “H”. that is your signature?
A: yes, I agree
Q: The date is 12/10/013, the next day after the suspension letter?
A:Yes
Q: you wrote this letter on 12/10 and given to company on 12/10?
A: Agreed
Q: Where is it in that letter have you addressed the 2 issues for your suspension?
A: No
Q: You agree you had ample opportunity to do it?
A: I disagree
Q: the very next day you wrote and did not address the issues?
A: Correct, But the letter says it was subject to police investigations. I was waiting for the result of the police investigation.
Q: So you agree you were terminated on company’s investigations?
A: Agreed
Q: Page 3 of Termination- Clause 6.1 (a) Your actions were gross misconduct warranting your termination?
A: Agreed
Q: you were terminated according to contract?
A: Agreed
Q: You only claim is 1 month?
A: Agreed
Q: You agree your claim has no basis?
A: Agreed
Q: you could have claimed for only 1 month notice.
A: Yes”
“Yes, I did. Auditors came from Malaysia to Check. Friday, I was arrested”
Findings
The Result
DATED at Port Vila this 24th day of November, 2017
BY THE COURT
OLIVER.A.SAKSAK
Judge
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URL: http://www.paclii.org/vu/cases/VUSC/2017/192.html