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Supreme Court of Vanuatu |
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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 1st 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:
i. misappropriation of Public funds belong to the Government of Vanuatu
ii. negligent and/or careless in the discharge of his duties
iii. disobeying instructions given by a person having authority to give instruction
iv. 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
17th
day of June 2004
BY THE COURT
P.
I.
TRESTON
Judge
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