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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 364 OF 1990
Between:
PREM NARAYAN
s/o Raghunandan
Plaintiff
- and -
WESTPAC BANKING CORPORATION
Defendant
Dr. S.D. Sahu Khan for the Plaintiff
Mr. B. Sweetman for the Defendant
JUDGMENT
By Writ of Summons dated 17 September 1990 the Plaintiff (P) is claiming damages against the defendant Bank (hereafter referred to as the "Bank") for wrongful dismissal.
Background to the Case
In his Statement of Claim the Plaintiff states that he began his employment with the Bank on 13 April 1966 and rose through the ranks and in March 1990 he was appointed to the position of Relieving Manager of the Pacific Islands Division. On 17 April 1990 he says that he was forced by the Bank "under undue influence and threats to resign his position and that if he did not resign he would be dismissed immediately and under threats and force and undue influence Plaintiff put in his resignation letter which was typed and kept ready by the Bank".
He said that it was an implied term of the agreement of employment by the Bank that P will continue in employment until the age of 55 years and at the time of the issue of this Writ he was 44 years of age.
His dismissal took immediate effect on 17 April 1990 and he claims that by reason of this wrongful dismissal he has suffered loss and damages. He says that he has also suffered embarrassment, humiliation and mental strain in view of the unlawful actions of the Bank.
The Bank in its Defence states that P resigned on 17 April 1990 but denies each and every allegation in paragraph 3 which deals with allegation of force and threat and undue influence etc. It denies paragraph 4 (dealing with period of employment) and says that the contract of employment between P and the Bank included (inter alia) the following implied terms:-
"(i) that the said contract was terminated by either party upon one month's notice;
(ii) that the Plaintiff was liable to summary dismissal in the event of neglect, wilful disobedience, dishonesty, non-observance of standing instructions and other such offences."
It denies the allegations in the Statement of Claim in paragraph 5 (wrongful dismissal), 6 (damages suffered) & 7 (embarrassment and humiliation). It further denies any liability to P either in the amount claimed or any other amount.
The Issues
At the Pre-Trial Conference held on 7 June 1993 the issues were defined as follows:-
(1) Whether the Plaintiff on the 17th day of April, 1990 was wrongly dismissed by the Defendant.
(2) Whether the contract of employment included an implied term that the Plaintiff was to continue in employment until the age of 55 years.
(3) Quantum of damages (if any).
In support of his case the Plaintiff was the only one who gave evidence. The only evidence from the Bank was that of MAXWELL JOHN WILSON from Australia a retired bank Manager (a former employee of the Bank).
Before dealing with the issues before me I will briefly set out each party's case.
The Evidence
The Plaintiff's Case
The evidence of the Plaintiff briefly is as stated hereunder. He testified that he joined the Bank on 13 April 1966 and was in its employ until his dismissal on 17 April 1990. He was a probationer and he signed a document of employment (exhibit I) and an oath of secrecy (exhibit 2). Then after confirmation on 14 October 1966 he signed Articles of Agreement (exhibit 3) and secrecy (exhibit 4).
In 1970 when the Bank Officers' union was formed he became its member. There was an agreement signed between the Union and the Bank which governed his termination, dismissal and grievance etc.
In 1986 he said that when he was promoted to "management level" he was congratulated by the then General Manager Mr. Jim Huey. Mr. Huey told him that the "Bank will look after you in terms of benefit, salary increases ... to the age of 55 years (i.e. retirement age) ...." The Plaintiff tendered to Court exhibits (exhibits 5A & 5B) from the Bank's Personnel Manual which deals, inter alia, with retirement, performance, counselling etc. He said that when he became part of management team he held various relieving positions - "posted to Sigatoka". The complaint in this action pertained to the years 1989 and 1990.
In 1981 P was posted to Sigatoka branch of the Bank as a relieving Manager, while there he came in contact with one Dukhan who operated a service station and whose house the Bank rented as P's residence.
He said that his forced resignation centred around these business people who operated the service station. These people had left the Bank and were customers of ANZ. The Plaintiff tried to get their business back to the Bank in 1989 and 1990. He said cheques would be written in favour of Shell Fiji Ltd. who were Westpac customers and drawn on ANZ. The ANZ dishonoured some cheques and P would authorize his staff to "represent" these cheques. He said that as part of management service the manager "has discretion to make it flexible". This is not unusual in a bank as managers have done it in the past. He said that this was "not something extraordinary" that he followed.
He said that he was already in the process of getting the customer back when ANZ came to know of this and they became aggressive towards the Sigatoka Service Station and the Station would ring him and request that he authorize "representation" of cheques. He denied that there were 53 such cases.
On 11 April 1990 at 3.00 p.m. he was called by Mr. Wilson to the bank's office in Civic House. They met in the Board Room when Mr. Wilson showed him a letter dated 11 April 1994 involving returned cheques. He called for an explanation in writing within 30 minutes of the circumstances surrounding the return of cheques. His request to look at the file was refused. He wrote an explanation (exhibit 8) there and then in the presence of WILSON and HITCHINSON.
Then on 17 April he was called again and was told by WILSON that the Bank "viewed" his "action very seriously" and that the Bank wants him "to resign or face dismissal" and said "here's dismissal letter". He said that under pressure he reluctantly tendered in his resignation (exhibit 9) and told them that he would be writing to them later to explain the circumstances surrounding the resignation. He did so on 19th (exhibit 10). The Bank informed him on 24.4.90 (exhibit 11) that the decision still stands. Thereafter he instructed his solicitors (exhibit 12) to take the matter up with the Bank.
The Plaintiff said that Mr. Huey told him that he will be employed until the age of 55 and there will be certain entitlements as Management Staff. He worked out his claim as per details attached to the Writ.
He said that no one from the Bank said anything about representation of cheques. No one brought any shortcomings to his attention verbally or otherwise until 1990. In 1986 he became part of management staff and after that he was no longer represented by Union. He said that when he authorized his subordinates to represent cheque he was not acting against any regulations of bank or instructions of his superior officer. He said that this was "certainly" within his discretion. Even today he says that he does not feel that he has done anything wrong.
The Plaintiff is claiming the sum of $745,022.00 as special damages for loss and damages suffered, interest on damages suffered, such further or other relief that may seem just and proper to this Court and costs of this action.
The Defendant's Evidence
MAXWELL JOHN WILSON who was regional manager for the Bank in Fiji from 1988 to 1992 testified as hereunder.
He outlined to Court the procedure to adopt on dishonour of a cheque. There are standing instructions in this regard and they are well known to staff and bank managers. He told the Court the implications of failure to inform the "depositor" of the outcome of the cheque. He said that any departure from the standard procedure would be considered a serious matter. In April 1990 Mr. Wilson's attention was drawn to the matter of cheques deposited by Shell Fiji drawn on account at ANZ Bank, Sigatoka. He made investigations and obtained reports on the matter. The Plaintiff was called, a letter of dismissal was ready but he was allowed to explain in writing which he did. The Bank decided to dismiss him from service with the Bank but he was given the opportunity to resign. The letter of resignation was accepted on 17 April 1990.
He said that the Plaintiff's actions in disregarding the standing instructions was "very serious because of implication to Shell Fiji and Bank; Shell Fiji was Bank's top 10 accounts which deserved special attention".
Consideration of the Issues
In a case of alleged wrongful dismissal the Plaintiff must prove breach of a contract of service. There is no doubt that an action will lie for unjustifiable repudiation of a contract (Re RUBEL BRONZE CO. (1918) 1 K.B. 315, 321).
Among other things, as an agreed issue, the question for my determination is whether the Plaintiff was wrongfully dismissed by the Bank.
Both counsel made written submission and I have carefully considered them.
No doubt in considering this matter I have to look at all the circumstances surrounding this case which led to the Plaintiff being summarily dismissed by the Bank after receiving the letter of resignation in the circumstances outlined by the Plaintiff.
The Bank's allegations are contained in exhibit 7 dated 11 April 1990. Since this and the reply thereto in exhibit 8 dated the same day gave rise to the issues for determination before me have a very important bearing on the issues before me I set them out below:
Exhibit 7
"11 April 1990
Mr Prem Narayan
Relieving Manager
Westpac Banking Corporation
SUVA
Dear Mr. Narayan
We have been made aware that cheques drawn by Sigatoka Shell Agency on the ANZ Bank Sigatoka which were deposited by Shell Fiji Ltd to their account at Suva were dishonoured by the ANZ Bank with the answer refer to drawer. These cheques were represented by Westpac without notice or debiting the Shell Account.
Would you please submit a full and extensive report in response to this matter and in particular covering the following specific issues.
Your report is for the information of the bank to take whatever course of action it so desires in this matter.
Would you please explain what instructions you gave the staff at Suva Office who handle the dishonour procedures which failed to advise Shell of the respective dishonours and the respective account was not debited."
Exhibit 8
"Regional Manager, Fiji
Ref to: Your letter dtd 11/04/90
Subject: Dishonoured Cheques - Sigatoka Shell Service Station
I have known owners of the Service Station through business association when I was attached to Sigatoka Branch. The Bank also rented their premises which I occupied for three years. The business account was with Westpac at the time. I have witnessed the business commence, and grow to its present size, through the hard work by the owners - and I believe present annual turnover is in excess of $1M.
The business was shifted to ANZ, Sigatoka, at the influence of M/S Yanuca Tours Ltd., owned by the brother of the service station owner, mainly to gain full access to security equity over a property where service station owner was the joint owner. By this time I was transferred to Suva and when I returned to Sigatoka on relief duties the position became known to me. I was also made aware that permanent Manager had spoken/approached owners of the service station to remain/return with/to Westpac. As I knew the principles closely and had confidence about their progress I became involved and determined to influence business back to Westpac. Recordings to this effect and my conversation/approach with/to the owners at the time may still be available at Sigatoka Branch - staff were also aware of our intentions. Ever-since I called onto them (occasionally) when I passed that way and talked about them approaching Westpac for takeover of business, and, I believe, proposal is before the Branch now-since the last two weeks.
I was also advised sometime back by the service station owners that ANZ Bank became aware about the possible shift of business back to Westpac, and were beginning to act aggressive by returning cheques occasionally despite arrangements by phone - requesting payment pending receipt of deposits to account.
It was in this manner I was contacted by phone to represent cheques, which I felt obliged to do in view of our continued mention about transfer of business to Westpac. All cheques represented in this manner were normally paid - and only recently I learned that a few cheques had been knocked back by ANZ Bank. To this I phoned owners to express concern about represented cheques being returned and they advised that suitable arrangement with ANZ is in place - and that proposal is also with Westpac with financials to assess business takeover.
Referring to questions raised -
(1) Cheque was represented upon my instructions (I believe - as sometimes they would ring Shell Co. direct requesting representation), however, when cheque came in again I believe it was processed to Shell Co. and they were advised by owners or ANZ to represent. The cheque was then dishonoured in error by ANZ Bank who I believe contacted Westpac Suva for representation.
(2) I think I authorised this representation which was paid subsequently.
(3) I am not aware the number of cheques that were represented but I know all cheques were subsequently paid on representation.
When I was requested to represent cheques - a few times by ANZ Bank - I would advise Sub-Accountant to do so - presumably normal representation fee would have been collected.
The above actions were taken in all sincerity and mainly with the aim of influencing business our way - as mentioned I believe proposal is before the Branch now.
Whenever I was not available similar approaches for representation were made direct to Shell Co.
I trust the Bank will view my explanations in the light it is presented - normally I would not authorise such actions for anybody. The clients are well known to Westpac as well - and proposal now before us will assess whether they are worth assisting further or we let the business pass.
(Sgd) P Narayan
Rlg. Mgr.
11/04/90"
As Mr. Sweetman states, it is common ground that the defendant through WILSON its Regional Manager confronted the Plaintiff with allegations relating to the re-presentation of cheques returned marked "Return to drawer" These allegations are more particularly contained in exhibit 7 (supra) which is a letter dated 11 April 1990 from WILSON to the Plaintiff. The Plaintiff gave an explanation in response to that letter which is exhibit 8 (supra).
It becomes clear from the evidence that a customer such as Sigatoka Shell Service Station whose cheques were continuously dishonoured would not or could not be accepted as a customer by Westpac Bank if they decided to move to Westpac. Hence in all the circumstances of this case the Plaintiff's explanation that the intention behind him accommodating them in the manner stated rings hollow.
The Bank had taken a very serious view of the matter in which the Plaintiff allowed representation of Sigatoka Service Station (SSS) cheques. In my view, any Bank would be concerned with this mode of running the Branch Bank.
There are very good reasons for having standing instructions pertaining to the procedures to be adopted on dishonoured cheques namely, inter alia, that the cheques be returned to Bank's customer with an advise that they had been dishonoured. No doubt there is a certain amount of discretion vested in a manager, but certainly not what the Plaintiff as Manager did in this case. The evidence reveals which I accept as fact that the Plaintiff had over a period without notice or debiting the customer's account (namely Shell Account) represented a number of Cheques of the Service Station including one for the amount of $37,998.82 (exhibit 6) which was dishonoured on three separate occasions. The Court cannot accept the Plaintiff's explanation, in his own words, when he said that he had authority "to bend the rules". In fact he had no authority whatsoever to do that contrary to the Bank's standing instructions.
The consequences of not following the correct procedure regarding the "representation" of cheques are serious. The Bank's customer suffers. The customer does not have the amount on the cheque credited to its account whilst all the time it expected the money to be there. It was not even debited to the customer's account. Therefore the customer did not know what happened to the monies which it deposited. The customer would have continued to supply goods to the service station in complete ignorance of breach of said instructions on the part of the Plaintiff.
The customer will have no confidence in the Bank and the Bank could lose the customer. In fact this modus operandi on the part of the Plaintiff's bank manager is nothing short of dishonesty to the detriment of the customer, a substantial one at that, who must have suffered tremendous loss by not having the amount of money involved in its account.
This is a clear cut case of a serious breach of bank's instructions to justify the Bank taking drastic action against anyone be it Manager or a junior officer particularly because of the serious consequences that flow from the practice adopted by the Plaintiff because he thought he had discretion to the extent of "bending the rules". One has only to put oneself in the shoes of Shell Fiji Limited (the customer) to realize its worth at this wrong doing with dire consequences.
This is not a case where the Plaintiff needed counselling as suggested by Dr. Sahu Khan. He was not a junior member of staff; he was a bank Manager and he should have known better. If he does not perform well and works to the detriment of the Bank he just has to go. The Bank acted swiftly as soon as this serious breach of instructions was brought to its attention by confronting the Plaintiff and calling for an immediate explanation for his actions. Although the Plaintiff raised the matter of breaches of instructions by other employees, I am not concerned with them here nor is this aspect marked for my decision in this case. The Bank found a ground for dismissing him summarily as distinct from keeping him in its employ and then relying on that ground for the purpose of dismissing him.
It came out during the hearing that the Plaintiff photocopied substantial portions of customers' files and took them away from the Bank, which I agree are in breach of declarations of Secrecy which he made in joining the Bank. Although some of the matters in regard to his general conduct were not known to the Bank at the time when they dismissed him, "it is well established law that they can rely at the hearing on matters not known to them when they dismissed the plaintiff". (UPJOHN J in ROBERTS v ROBERTS & DOUGLAS (STEVEDORES), LTD 1952 2 LL.L. Rep. p.155 at p.175
The suggestion that no loss has been suffered by anyone is neither here nor there; but exhibit 14 (the letter to the Permanent Secretary for Employment) as Mr. Sweetman says does establish "wrongdoing" on the part of the Plaintiff.
Nature of Employment
Mr. Sweetman has in his written submission clearly outlined the terms and conditions of the Plaintiff's employment as follows and this is borne out by the evidence before me:
"(b) The Contract of Employment
The Plaintiff joined the Bank in 1966 and signed the Agreement Exhibits 1 and 3.
By Exhibit 3 he bound himself to give six months' previous notice in writing if he wished to leave the Bank whilst acknowledging that the Bank could at any time dispense with his services without notice.
This rather severe provision was tempered in 1970 when, with the creation of the Fiji Bank Employees Union, collective arrangements were entered into.
The Plaintiff submitted in evidence Exhibit 13, which is a copy of a Collective Agreement between the Bank and the Union, and acknowledged that his terms and conditions of employment were still governed essentially by the terms implied into his Contract of Employment by virtue of this Agreement and which still continued on notwithstanding his appointment to management in 1986. He further acknowledged that although the Collective Agreement provided that the Banks did not recognize the Union for purposes of collective bargaining in respect of managers, the terms and conditions of the managers continued generally to be those expressed in the Collective Agreement subject to adjustments to salary levels and allowances and exclusion of anything relating to the Union, which no longer represented him.
The Plaintiff acknowledged that the Agreement contained provision in Clause 4.2 (a) that the services of any employee could be terminated by the giving of not less than four weeks' notice or by the payment of a sum equal to four weeks' salary. He also acknowledged Clause 4.2 (b) which provided that nothing in that clause was to be construed as in any way detracting from the employer's right to dismiss summarily for misconduct, wilful disobedience to lawful orders, lack of skill, substantial neglect of duties and so on." (underlining mine for emphasis)
Although the Plaintiff tried to show that there was a variation in the terms of his employment in relation to his retiring age by reference to the alleged statement of Mr. Huey that he would be able to continue until the age of 55 years, I am not convinced at all that that was so or that such an important term could be varied in a welcome speech, as stated by the Plaintiff, on the occasion of the Plaintiff's promotion as Manager.
On the evidence there is no doubt whatsoever that the Plaintiff's employment was terminated under the Collective Agreement on four week's notice by either party and in addition for summary dismissal for cause.
The Plaintiff held a very responsible post and it was incumbent on him to follow the standing instructions of the Bank regarding the procedure to be followed in representing dishonoured cheques for obvious reasons.
It was a general obligation resting on an employee pursuant to his obligation to render faithful service and to obey all lawful commands of the employer, namely the Bank.
Despite the fact that the Plaintiff held such a responsible post, there was wilful disobedience of the said standing instructions of the Bank. It was said by EVERSHED M.R. in LAWS v LONDON CHRONICLE LTD (1959) 1 W.L.R. 698 at 700 that:
"It is, no doubt, therefore generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and unless he does so the relationship is, so to speak, struck at fundamentally."
"In every contract of service [there is] an implied condition that if faithful service is not rendered the master may elect to determine the contract. The servant must duly and faithfully carry out his service contract. The servant must duly and faithfully carry out his service in a manner not inconsistent with the duties of his office. If he misconducts himself he may be summarily dismissed. There is no fixed rule of law defining the degree of misconduct which will justify dismissal ... misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal."
In all the circumstances of this case the Bank was entitled to summarily dismiss the Plaintiff for disobedience of the Bank's standing instructions because of the serious consequences that flow from non-compliance. This ground is a basic justification for the exercise of this remedy. On lawful disobedience of orders LORD EVERSHED M.R. in LAWS (supra) said:
"... since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that the question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally."
His Lordship continued:
"It is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is 'wilful' : it does (in other words) connote a deliberate flouting of the essential contractual conditions."
I agree with Mr. Sweetman that even if the Plaintiff had not resigned he would have been summarily dismissed for the grave situation which the Plaintiff created by "bending the rules". The resignation was accepted by the Bank on 17 April 1990.
In the situation that was created by the Plaintiff the dismissal in this case was not wrongful as there was no breach of contract on the part of the Bank.
In SINCLAIR v NEIGHBOUR (1966) 2 Q.B. C.A. 279 at 280 it was held that:
"allowing the appeal, that even though the plaintiff's conduct might not have been dishonest, it was nevertheless conduct of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant, and, therefore, the defendant's summary dismissal of the plaintiff was justified."
There SELLERS L.J. said at p.287:
".... It was sufficient for the employer if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent - incompatible - with his duty as the manager in the business in which he was engaged"
It was conduct of this nature which justified the Bank in taking the actions it took against the Plaintiff.
The following passage from the judgment of DAVIES L.J in SINCLAIR (supra) at p.289 is apt:
"The facts were established. The fact that the manager took the money from his employer's till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether that justifies the label "dishonest" or not. The judge ought to have gone on to consider whether even if falling short of dishonesty the manager's conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately.
In my judgment, on the facts of this case the manager's conduct clearly fell within that latter category; and I have no doubt at all that the employer was, therefore, entitled to dismiss him."
Further SACHS L.J. in SINCLAIR (supra) at p. 289 said:
"It is well-established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them. That was said by BOWEN L.J. in his classic judgment in Boston Deep Sea Fishing and Ice Co. v. Ansell."
In the case before me the Plaintiff as manager deliberately followed a procedure which was not only not permitted but the Bank as employer would not have allowed to be followed had it been asked. The Plaintiff's conduct was utterly reprehensible and improper.
The wrongful conduct of the Plaintiff goes to the basis of confidence between employer and employee and the Plaintiff well knew that the Bank will never approve. That is sufficient, in my view, as SACHS L.J. (supra) at p.290 put it "to establish that as between the employer and the employee this conduct is dishonest."
I find that a conduct of the nature referred to herein is sufficient to justify a dismissal bearing in mind that in CLOUSTON & CO v CORRT [1905] UKLawRpAC 66; (1906) AC 122 the Privy Council said that "there is no fixed rule defining the degree of misconduct which will justify dismissal". Also in PEARCE v FOSTER (17QBD 536 at 539) it was said:-
"The rule of law is, that where a person has entered into the position of servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has a right to dismiss him."
It does not mean that one ignores the degree of misconduct. One has to look at the law in this regard and not look at it from the point of view of a reasonable man and excuse the Plaintiff for his long service. As COTTON CJ pointed out in BOSTON DEEP SEA FISHING & ICE CO v ANSELL [1888] UKLawRpCh 123; (39 ChD. 339 - 358) that that view had nothing to do with the law.
The post that the Plaintiff held, it raised a condition of uberrima fides which was of vital importance; and where it became known that the Plaintiff as Manager went contrary to the Bank's standing instructions, the Bank's reputation would be tarnished. The situation arose in this case that the Bank could not keep in their employment a Manager who gave a bad reputation to the Bank resulting in a serious loss of confidence in the Bank by the customers and others. And as GRIFFITH CJ said in ENGLISH AND AUSTRALIAN COPPER CO LTD v JOHNSON (1911 13 ChR 490 at 499):
"It would be incompatible with the successful carrying on of their business. In law, I think, that was sufficient ground for dismissal."
In the outcome, in my judgment, the Plaintiff has pursued a course of conduct which amounted to a misconduct as a responsible employee of the Bank emanating from his persistent disobedience of standing instructions of the Bank. The nature of the misconduct was of such a serious nature which entitled the Bank to take the action it did in dismissing the Plaintiff as outlined hereabove. Accordingly, his action for wrongful dismissal in all the circumstances of this case is misconceived and fails.
For these reasons the Plaintiff's action is dismissed with costs to be taxed if not agreed.
D. Pathik
Judge
At Suva
22 November 1995
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