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Bani v Government of the Republic of Vanuatu [2007] VUSC 12; Civil Case 214 of 2005 (27 March 2007)

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

Civil Case No. 214 of 2005

BETWEEN:

WILLIAM BANI
Claimant

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice C. N. Tuohy

Dates of Hearing: 1 March 2007
Date of Decision: 27 March 2007

Counsel: Mr. James Tari for Claimant
Mr. Gilu for Defendant

RESERVED JUDGMENT

Introduction

1. This is a claim by a former public servant for damages for unlawful dismissal.

Facts

2. Mr. Bani commenced employment as an officer in the Department of Forestry in January 1995. By 2002, he had advanced to the position of Senior Forest Officer (Utilization) based in Port Vila.

3. On 13 July 2002 (a Saturday), he had the use of a Government vehicle in order to assist with the transport of an official party to North Efate.

4. On that day, Mr. Bani was upset by the conduct of some boys living in his neighbourhood who were causing trouble. He began drinking during the day. He then drove the Government vehicle while under the influence of alcohol. In the airport area, he saw the boys who had been causing trouble and drove the vehicle towards them causing the vehicle to leave the road, cross a drainage trench and suffer damage to the chassis.

5. On 16 July, he made a written accident report to the Director of Forests, Mr. Mele in which he admitted damaging the vehicle while under the influence of liquor and acknowledged liability for the cost of repair which he requested be paid by fortnightly deductions from his salary.

6. In the report he described the trouble which the boys had been causing and the anger and frustration this made him feel. He stated:

Though I was under the influence of liquor I understood what I was doing however I was so frustrated that I could not control myself any longer. I did not mean damage to the Government vehicle though. The action I took was meant towards a group of boys who were at the site (sic) of the crossing at that time.

7. On 22 July, he (and others) received a memo from the Director advising that officers causing accidents in Government vehicles would pay the full cost of repair and that he would be banned from driving Government vehicles for an indefinite period.

8. In November 2002, deductions from his salary commenced at VT 5,000 per fortnight.

9. On or about 9 December 2002, he received a Notice of Suspension signed by the Acting Director of Forests, Watson John. It stated:

This letter is to inform you that you are suspended on full pay as from the date of this letter.

I am taking this action because it is alleged that you have committed the following disciplinary offences:

(1) Drinking and Driving the Government Vehicle.

• You have been seen drinking and driving G431 between 3pm on Saturday 20th July 2002.

(2) Accident causing damage to the Government vehicle outside official hours.

• The vehicle you are driving was intentionally damaged around 3pm according to eyewitness.

(3) Not providing any accident report even though verbally requested.

• After you accident, you are asked to provide an accident report but you never submit any.

(4) Removing G431 from the accident site without police assessment.

• It is a requirement under the traffic laws to leave the accident vehicle on the site until the police assessment. You have breached this Act by removing the vehicle without any approval from the police or your superior.

The above allegations will affect the moral of other staff if no action is taken after repeated warnings.

Until the above matter is resolved, you are suspended from duty and you must not enter any premises belonging to this Department except with my permission.

You are required to return all Public Service property in your possession to me immediately.

The Director-General has been informed of this action. If you wish to discuss this matter, you may make an appointment to see me.

According to Chapter 2.3.1 (b), you are required to provide within seven days a written response to my report.

10. Also on 9 December 2002, the Acting Director wrote to the Public Service Commission advising them of the suspension and requesting the Commission to make a determination in the case. A copy of the letter went to Mr. Bani.

11. This letter expanded on the four "offences" referred to in the Notice of Suspension. In particular, in relation to "Case1, Drinking and Driving the Government vehicle", it stated that Mr. Bani had driven straight at the youths and tried to hit them.

12. Mr. Bani responded in a detailed letter also dated 9 December 2002. As to the facts of the incident, he stated that he had not intended to damage the vehicle and acted out of frustration and pressure but otherwise did not deny what had been alleged. He disputed the allegations of not providing an accident report and explained removing the vehicle without Police assessment. He also challenged the suspension on the basis of inconsistency, being penalised twice and unfairness, in view of his previous good record and the treatment of others.

13. A very clear and full paper was prepared by the Secretary of the Public Service Commission for it to consider. It set out the background, identified the options available to deal with the case, discussed the merits of the case with reference to relevant sections of the Public Service Act ("the Act") and case law and Mr. Bani’s explanations, and made a recommendation for dismissal with immediate effect. All the relevant reports and correspondence were attached for the Commission to consider.

14. The Commission considered the matter at its meeting on 27 February 2003. It decided to accept the recommendation and Mr. Bani was dismissed.

Claimant’s Submissions

15. Mr. Tari submitted that the power given to the Commission in s. 29 of the Act to dismiss for serious misconduct is a discretionary power and is subject to its obligations to act as a good employer. He submitted that it was unfair to dismiss Mr. Bani because this amounted to him being punished twice for the same offence, the first punishment being the driving ban and the requirement to reimburse the cost of repairs.

16. He also submitted that Mr. Bani had no intention to cause a threat to the lives of people because, he said, it is almost impossible to establish the intention of someone who is drunk.

17. In the amended claim, the particulars of wrongful dismissal included complaints about the delay between the accident and the dismissal and about unequal treatment but these were not referred to in submissions.

Defendant’s Submission

18. On behalf of the Government, Mr. Gilu submitted that wrongful dismissal will only arise where the employment is terminated in breach of a term of the employment contract or the provisions of a statute, or where the dismissal process was unfair.

19. As well as providing detailed submissions on the factual grounds relied upon in the claim, Mr. Gilu submitted that Mr. Bani had failed to point to any particular term of the employment contract or statutory provision which had been breached. He submitted that the process followed in dismissing the claimant was completely fair.

The Law

20. Section 29 of the Act empowers the Public Service Commission "to dismiss an employee at any time for serious misconduct... but subject to its obligations to act as a good employer". In Government of Vanuatu –v- Ephraim Mathias, (CAC 10 of 2006, 1 June 2006), the Court of Appeal discussed the relationship of this section with s. 50 of the Employment Act (Cap 160). The Court said that the protective provisions of s. 50 (2) – (5) inclusive are entirely consistent with the obligation in s. 29 "to act as a good employer".

21. The Court also stated that the burden of establishing "serious misconduct" under s. 29 rests fairly and squarely on the employer on the balance of probabilities.

22. As to the requirement in s. 50 (4) to give the employee an adequate opportunity to answer the charges made against him, the Court affirmed that that does not necessarily require an oral hearing. The circumstances of each case must be looked at in deciding the process which will satisfy that requirement.

Discussion

23. The Court has no doubt that the Commission was perfectly entitled to take the view that the conduct which Mr. Bani himself admitted to was serious misconduct and that summary dismissal was the proper course. Driving a Government vehicle entrusted to him while under the influence of alcohol and damaging it is serious misconduct on any reasonable view.

24. There was some issue at trial as to whether it had been shown that Mr. Bani had intended to threaten or harm the boys he drove towards. However, it is implicit in his explanation at the time that he was driving at them, and thus his intention must have been to frighten them at the least.

25. As well as that, the allegation that he had driven straight at the youths and tried to hit them was made in the Acting Director’s letter of 9 December 2002 to the Commission which was copied to Mr. Bani and he did not deny it in his response. This was simply an aggravating factor. Even putting aside his intent towards the boys, there was more than sufficient for the Commission to find serious misconduct.

26. As to process, this is not a case where there was any significant dispute about the facts. They were admitted by Mr. Bani in all essential respects. Furthermore, Mr. Bani was given the opportunity to respond to the charges against him in writing, an opportunity of which he took full advantage. The report prepared by the Secretary before the Commission took its decision was a very full one and included all relevant material.

27. I am satisfied that the process leading up to the dismissal was entirely fair and that Mr. Bani was given a very adequate opportunity to answer the charges against him.

28. As to the complaint that Mr. Bani has been punished twice for the one offence, in the Court’s view this is misconceived. In the first place, summary dismissal is not a penalty in the sense that a criminal sentence is. Although it has the effect of a sanction on the employee, essentially it is a remedy available to an employer when there has been a serious breach of the employment contract by the employee. The remedy is that the employer may bring the contract to an end so that he does not have to continue to employ that person.

29. Secondly, it is not a punishment for an employee to be required to repay damage which he causes to an employer’s property while he is under the influence. It goes without saying that someone who wrongly damages another’s property should repair it. That is not a punishment, just a natural consequence.

30. Thirdly, it is not a punishment to be banned from driving Government vehicles. It is an entirely understandable measure for an employer to take in order to protect its property when an employee has shown that he cannot be trusted with it. After all, Mr. Bani had no right to use the vehicle except with his employer’s consent.

31. I am satisfied that there is nothing in the other matters raised in the claim. There was no admissible evidence that Mr. Bani was treated unequally and this aspect was not pursued.

32. As far as delay is concerned, it was explained on the basis that the Acting Director required the amount of time which elapsed to properly investigate the facts. Whether or not he could have more quickly reached the point of issuing the Notice of Suspension, there is no evidence that the delay was prejudicial to Mr. Bani. It simply meant that he continued in his employment for a longer period than he might have.

Conclusion

33. I am satisfied that Mr. Bani’s termination was lawful and fair. The claim is dismissed. The Government is entitled to costs to be agreed, or otherwise fixed by the Court.

Dated AT PORT VILA on 27 March 2007

BY THE COURT

C.N. TUOHY
Judge