IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 210 OF 1994

Between:

AWADH NARAYAN SINGH
Plaintiff

and

FIJI POSTS AND TELECOMMUNICATIONS LIMITED
Defendant

Mr. S. P. Sharma for the Plaintiff
Mr. I. Tuberi for the Defendant

JUDGMENT

In this action the Plaintiff is alleging that he was unfairly dismissed from employment with FIJI POSTS AND TELECOMMUNICATIONS LIMITED (the defendant - the "FPTL") effective from 15 February 1993 and is claiming damages arising as a result thereof.

Background facts

The facts and circumstances leading to the dismissal, as stated in the Plaintiff's Statement of Claim, are as follows:

2.	BY an agreement made between the Plaintiff and the Defendant the Defendant agreed to employ the Plaintiff who agreed to serve as an officer initially in the Fiji Postal service and thereafter in the Service of the Defendant as a Postal Officer.

3.	IT was an express term and condition of the said employment that:

(a)	The Defendant would afford to and accord the Plaintiff natural justice in respect of any disciplinary matters which were or were to be the subject of a disciplinary inquiry in accordance with the disciplinary code contained in clauses 9.0 - 9.6 of the FIJI POSTS AND TELECOMMUNICATIONS LIMITED - CORPORATE INSTRUCTIONS MANUAL 11 (Terms and Conditions of Employment for Employees levels 1-5).

(b)	That there would be afforded and accorded to the Plaintiff as a worker all due manner and process of law that is to say a right to be heard in his defence in respect of any matters that were the subject of a disciplinary inquiry.

4.	ON 11 February, 1993 by letter of the said date the Defendant wrongfully and in breach of the said agreement terminated the said employment and wrongfully dismissed the Plaintiff therefrom and refused to employ him any longer.

5.	IN further breach of the contract of employment referred to aforesaid the Defendant dismissed an Appeal against the termination of his employment on 31 March, 1993 in circumstances where it amounted to a denial of natural justice thereby constituting a breach of contract between the Plaintiff and the Defendant.

6.	BY reason of the matters aforesaid, the Plaintiff has lost the benefit of his employment together with all the emoluments both statutory and contractual and he has lost the use and enjoyment of his employment as a result of which he has sustained loss and damage.

At the time of dismissal the Plaintiff was Senior Assistant Postal Officer at the General Post Office, Suva. He was allegedly dismissed for "tampering with mail" while he was the Supervisor at the Primary Sorting Section. He appealed twice to have his summary dismissal reconsidered but was unsuccessful.

The issues

The issues for Court's determination (as contained in the Minutes of Pre-trial Conference) are as follows with no 'statement of agreed facts':

(a)	Whether the purported termination of the Plaintiff by the Defendant on 11th February, 1993 is lawful and valid.

(b)	If so the relief available to the Plaintiff including reinstatement, damages and costs.

As ordered written submissions were filed. I found them very useful.

Plaintiff's submission

The learned Counsel for the Plaintiff has made the following submissions in writing:

2.1.	he had worked in the service of the Defendant initially as P & T and ultimately as FPTL since 18 March 1977;

 .	he denied the misconduct, referred to as gross misconduct in the Defendant's manual of employment - Corporate Instructions manual 11 (Terms and Conditions of Employment For Employees Levels 1-5);

 .	he referred to past incidents when he had come under notice but was adamant in chief that he had never been reprimanded prior to the incident in question - D;

 .	reference was made to a prior conviction for larceny as a juvenile for which he was given 12 months probation and ultimately came to be pardoned on 6 April 1983 receiving the Presidential Pardon on 11 December 1996;

 .	further matters of alleged transgressions were put to the Plaintiff based on discovery from the Defendant's documents

 .	which were all denied, and were referred to in the Defendant's bundle D12 as set out hereunder:

(a)	allowed unauthorised withdrawals of up to $320.00;

(b)	transmission of tax (fax?) to Australia 22.1.91 and collected payment for it;

(c)	10/91 payment of 7MO altered from $10 to $112;

(d)	underpaid a Canadian Money Order;

(e)	private dealings - D22-D25

 .	in essence no letter of warning was produced by the Defendant to highlight the gravity of the allegations which were put in cross-examination;

 .	the Plaintiff never conceded any wrongdoing as put to him which in effect sought to reactivate matters quite dated in currency.

2.2	The Plaintiff then dealt with the incident in question upon which these proceedings are based, viz Tampering with mail between 17 August - 24 August 1992. In P6, the Defendant served on the Plaintiff a show cause letter concerning two allegations against him for tampering with mail on 17 August and 24 August 1992 - their reply called for was by 28 August 1992 - 4 p.m. A reply denying all the allegations was made the same day, 27 August 1997.

2.3	The Plaintiff as a witness to be adjudged on his demeanour, credit and the responses which he gave to his evidence would in our 

2.4	submissions be seen to be a frank and truthful witness who denied all allegations yet admitted to matters that were sought to impugn his testimony in respect of previous acts of misconduct. It is considered that the prior acts for which he was the subject of communication and/or investigation amounted to misconduct, let alone did they come to any such act that could be seen as such.

2.4	The Plaintiff was subjected to an incredible lack of courtesy with not even the veneer of an attempt to carry on an investigation in accordance with the clause 9.1 and its subsequent provisions, especially clause 9.4 of the investigative procedures as provided for. It is our central submission that the investigations that were embarked upon from on or about 9 September 1992 and into 1993 culminating in his termination in February 1993 did not in any way, shape or form amount to an observance of a hearing where the matter was investigated between the Plaintiff and the Defendant and in particular his accusers being employees from within the Service. In short, we rely on the extensive cross-examination of the Defendant's employees and its officers to show that at no stage was anyone prepared to confront the Plaintiff with the accusations and have them determined before a tribunal contemplated as being able to be set up to investigate the matters in accordance with the machinery provisions of clause 9 of the Manual.

2.5	In short, we would submit that on the Plaintiff's evidence as given, he has effectively denied each of the matters that has been raised against him and in particular has shown what are his damages and has given proper mitigation - evidence thereof - in support of his

2.6	claim for the lump sum as referred to in the annexure to these submissions which was handed up as a basis of the calculations at the close of the Plaintiff's examination in chief.

Mr. Sharma submitted that the defendant (the 'FPTL') called Mr. Mohammed Asmin Khan (Manager in Human Resources), Mr. Tevita Peni Mau (Managing Director, Post Fiji Ltd) and Mr. Peni Silatolu (Superintendent of Mails) in support of the allegations that the plaintiff had tampered with mail and that he had been the prior recipient of several warnings, thus enabling FPTL to rely on them in addition to and apart from the allegation in question of tampering with mails.

He submits that Mr. Silatolu was not satisfied of the commission of the offence or that it had been proved so that he recommended a warning. He argues how then could one embark upon an investigation when the primary chain of command had been satisfied that there was no offence warranting the summary dismissal procedure or the invoking of the machinery pursuant to clause 9 of the Agreement to embark upon the consideration of serious and/or wilful misconduct. Hence the Plaintiff relies on the admission as discovered in the documents and tendered from Mr. Silatolu to the effect that the matter should have been the subject of a warning.

The Plaintiff he says was denied natural justice and also there was a denial of 'legitimate expectation' that he would be afforded the opportunity to participate in an investigation if such were to be the case.

Mr. Sharma further argues that apart from it being patently apparent that there was no investigation in accordance with clause 9.4 of the agreement, there similarly was no foundation for any of the consideration given to any prior matters as amounting to misconduct or being relied upon as misconduct. If they were, then the Plaintiff was not afforded the opportunity to be confronted with these allegations which was again in breach of clause 9.4.

In a nutshell, Mr. Sharma submits that "the failure to accord the machinery provisions of clause 9 are fundamentally fatal to the resistance of the claim by the Defendant that the Plaintiff was the subject of a dismissal which was harsh, unjust and unreasonable and/or unconscionable". (Mr. Sharma's written submission).

Plaintiff's claims

The Plaintiff claims as follows (as per his Statement of Claim):

1.	Declaration that the Plaintiff's purported termination of employment by the Defendant is unlawful, illegal, invalid, null and void; and/or

2.	A Declaration that the Plaintiff is and remains an employee as a Postal Officer of the Defendant on a continuing and permanent basis; and/or

3.	A Declaration that there exits a valid and binding employment agreement between the Defendant and the Plaintiff in respect of the position of Postal Officer;

4.	Damages in the sum of

(i)	$209,100.00 (based on 20 year service at $10,455.00 p.a.)

 (ii)	$29,274.00 being FNPF benefits

5.	Interest on the said sum or such sum as may be awarded;

6.	General Damages;

7.	Exemplary Damages;

8.	Costs;

Such further or other relief as this Honourable Court deems just. 

Defendant's contention

The learned counsel for the Defendant (FPTL) commenced his submission by stating that the Plaintiff was summarily dismissed under clause 9.1.7 of FPTL'S Corporate Instructions Manual 11 ("the Manual") as revised on 24 September 1991 and contained in circular No. 82/91 (dated 24/09/91) (exhibit D19).

The said clause 9.1.7 states:

"If an act of gross misconduct is committed, the employee may be liable to summary dismissal".

Mr. Tuberi then refers to clause 9.4 of the Manual which provides for 'misconduct' subject to summary dismissal which is in the following terms:

"9.4	GROSS MISCONDUCT SUBJECT TO SUMMARY DISMISSAL

If in the opinion of the Managing Director, an employee has committed an act of gross misconduct or charged with a serious criminal offence, the employee may be suspended immediately without pay pending the finalisation of the case and liable to summary dismissal following an investigation and confirmation of the offence. For the purposes of this clause, an employee shall be subject to summary dismissal in the following circumstances.

(a)	where the employee is found guilty of a serious criminal offence or imprisoned;

(b)	where the employee is guilty of misconduct inconsistent with the fulfilment of the expressed or implied conditions of his contract.

(c)	for lack of skills and knowledge which the employee expressly or by implication warrants himself to posses.

(d)	for habitual or substantial neglect of his duties.

(e)	for wilful disobedience of lawful orders and instructions given by his immediate supervisor.

(f)	for habitual absence from work without the prior permission of the General Manager or Managing Director and without other reasonable excuse."

Mr. Tuberi says that the question to be asked by the Court is whether the tampering of mail contributes gross misconduct under clause 9.4 of the Manual. He also refers to section 133 of the Posts and Telecommunications Decree 1989 (dated 30 November 1989) (Decree No. 37 of 1989) which prohibits the tampering of mail and it provides:

"133 - 	(1) Subject to subjection (2) of this section if any postal officer contrary to his duty opens or procures or suffers to be opened any postal article in the course of transmission by post or wilfully detains or delays or procures or suffers to be detained or delayed any such article he shall be guilty of an offence and shall be liable to imprisonment and fine.

(2)	Nothing in this section shall be extended to the opening, detaining or delaying of a postal article returned for want of a true direction or returned by reason that the person to whom the same is directed is dead or cannot be found or shall have refused the same or shall have refused or neglected to pay the posted thereof or to the opening or detaining or delaying of a postal article under the authority of this Decree."

Mr. Tuberi submits that the said Decree has 'criminalised' the act of tampering or opening letters and submits that this act constitutes a gross misconduct under clause 9.4(b) and (e) of the Manual because "it would be misconduct inconsistent with the fulfilment of the expressed or implied conditions of his contract of service." (9.4(b))

He further submits that on 17th and 24th days of August 1992 the Plaintiff was aware that this act of tampering constituted an act of gross misconduct. There is the evidence of the two eye witnesses whose allegations showed that the Plaintiff did commit an act of gross misconduct and in this respect FPTL had discharged the burden of proof that lay upon it by common Law.

In reply to the alleged failure to carry out an investigation, Mr. Tuberi submitted that there was an investigation before summarily dismissing the Plaintiff. He referred to Document D11 (letter of dismissal dated 11.2.93) and stated that it involved clauses 9.1.7 and 9.4 (b) and (e). There was an offer of employment letter dated 15.12.89 (Exhibit D1) which stated, inter alia, "All other terms and conditions of employment are as detailed in the Corporate Instructions Manual II (Terms and Conditions of Employment for employees, levels 1-5) as amended from time to time ...."

This Manual was amended by the said Staff Circular No. 82/91 of 24 September 1991 in regard to Disciplinary Procedures and now contained in clauses 9.1 to 9.6. The Plaintiff he said was given the opportunity to reply and give an explanation to the allegations contained in Defence documents D2 and D3 and the notice of such opportunity was contained in the letter to the Plaintiff by Mr. P. Silatolu dated the 27th day of August 1992 which is Defence document D4, where in the last paragraph he was asked:

"Please give me your explanation on both allegation made against you for tempering letters on 17/8/92 and 24/8/92 respectively to reach me no later than Friday 28/8/92 at 4.00 p.m."

In response to the above letter the Plaintiff gave his explanation which is contained in Defence document D5 (letter dated 27.8.92 from Plaintiff to the Superintendent of Mails). The Plaintiff denied the allegations.

On the aspect of investigation the learned Counsel further submitted that in the letter of Dismissal (exhibit D11) it is stated, inter alia, "I have carefully perused the relevant reports along with your explanation regarding the allegation against you for opening letters". The Defendant then invoked the said provisions of clauses 9.4(b) and (c) and 9.1.7.

He further stated that there was an investigation is evident from exhibit D7 which is a letter dated 4.9.92 from the Postmaster, Suva wherein in the second paragraph it is stated thus:

"I personally interviewed the Officers who saw Mr. Singh tampering with mails on different occasions. The Officers confirmed that what they have seen is the truth and that is what they have written in their report".

Mr. Tuberi points out to other reports which are Defence exhibits 8, 9 and 10. Exhibit D8 is a letter dated 10.9.92 from T. Talemaibau (MPCE) to General Manager Posts; Exhibit D9 is Report dated 1.2.93 from T.P. Mau (MPO) and Exhibit D10 dated 9.2.93 is referral of disciplinary cases including Plaintiff's case from S. Prasad (MPA) to GMPCR.

Mr. Tuberi says that FPTL has discharged the burden required under clause 9.4 and the common law requirement that the Plaintiff be heard and an investigation to be carried out. The Plaintiff was provided with a written notice of the allegation against him (vide D4) and he knew about the nature of the allegations (vide D5) but he denied
them.

Consideration of the issues

I have given due consideration to the evidence adduced by the parties and have also considered the submissions made by both counsel. It was a lengthy trial running into 260 pages of typewritten (verbatim) evidence of the proceedings.

From what I have stated hereabove it is clear what the facts and circumstances were which led to the Plaintiff's summary dismissal.

(i)	The Manual - Disciplinary provisions

The decision in this case depends upon whether the provisions of the employment agreement as contained in the Corporate Instructions Manual 11 (Terms and Conditions of Employment for Employees Levels 1-5) (exhibit P15 and also D19) (hereafter referred to as the "Manual") and its revision as contained in FPTL Staff Circular No. 82/91 of 24.9.91 on the subject of 'Disciplinary Procedures' clause 9.00 to 9.06 have been complied with on the facts of this case.

Hence the issue as agreed is whether the summary dismissal from employment is lawful and valid. The 
Plaintiff's bone of contention it appears to me is that the alleged offence of 'tampering with mail', which he had denied, does not amount to 'gross misconduct' to give rise to summary dismissal. Furthermore, the Plaintiff contends that he had been denied natural justice by not being heard in person on the allegations and that, most importantly, there was no 'investigation' or proper "investigation and confirmation of the alleged offence" as required under clause 9.4 of the Manual. 

Before I proceed to consider the issues before me, I would like to state that there was a provision in the Manual (exhibit P16) under 9.6 for a Disciplinary Inquiry before the Revision of clause 9 on 24.9.91. The clause 9.6 on Disciplinary Inquiry reads as follows:-

"9.6	Where the company is not satisfied as to the truth of the charge it shall cause an enquiry to be made into the alleged breach of discipline. The person appointed to conduct the enquiry shall submit a report of his findings thereon to the Company within 28 days or within such extended time as the Company may allow."

With the revised clause 9 there was no need for an Inquiry of the sort envisaged under the previous 9.6. We are left with just the revised clause 9.4 which talks of an "investigation" about which I shall discuss later in my judgment.

For the purposes of this case, some of the relevant clauses in the Manual under the caption "Disciplinary Procedures" which are pertinent are as follows and I set them out for a clear picture of the situation in so far as they are relevant to his case:

9.1.1	Employment is conditional on the employee continuing to render satisfactory service and to contribute to the achievement of the Company's corporate objectives.

9.1.2	Every employee is expected to follow all rules and instructions issued by the Company and to obey lawful orders issued by his immediate supervisor.

9.1.5	Every employee is expected to act in a responsible manner in relation to his duties and fellow employees.

9.1.6	Any employee who fails in this respect or commits a breach of discipline may have his employment terminated or to such lesser penalty as hereinafter provided.

9.1.7	If an act of gross misconduct is committed, the employee may be liable to summary dismissal.

On what constitutes a disciplinary offence the Manual states, inter alia:

9.2.1	An employee commits a disciplinary offence if he: 

(c)	fails to comply with any work related instructions given by his superiors.

(d)	fails to comply with any standing instructions or any other instructions issued from time to time by the Company;

(g)	is guilty of any improper conduct;

The most relevant clause for the purposes of this case is 9.4 which has already been set out in full hereabove.

(ii)	Outline of events

The evidence reveals that two Postal Officers, namely, Netava Tagi (cleaner) and Susau Mausio (postman sorter) reported on the Plaintiff (exhibits D2 and D3) that they 
had seen him tampering with mail. The Superintendent of Mails (Silatolu) wrote on 27.8.92 (exhibit D4) seeking an explanation which was given by the Plaintiff on 27.8.92. (exhibit D5) denying the allegation. In his letter dated 1.9.92 (exhibit D6) to Manager Post Mr. Silatolu wrote, inter alia, "..... it is only appropriate that Awadh Narayan Singh should be warned in writing on the consequences one will face for tampering letters. However Awadh Singh has been removed from the Primary Sorting Area and transferred to the dispatch section as a precautionary measure". Mr. B. Levu (Postmaster, Suva) after having personally interviewed the said complainants who saw Mr. Singh tampering with mails on different occasions was satisfied that the allegations were true and commented on the Plaintiff's conduct in his letter of 4.9.92 (exhibit D7) to Mr. Talemaibau (MPCE) and recommended his termination. Mr. T. Talemaibau in his letter of 10.9.93 (exhibit D8) stated that the Plaintiff "be terminated from his employment or alternatively, he be suspended without salary for a period of 15 days in terms of Clause 9.6 2(i) or (h)". In his opinion this was a 'major offence'.

Mr. T.P. Mau (MPO) addressing his letter of 1.2.93 (exhibit D9) to GMPCR stated, inter alia, that "although Mr. Singh has denied the above two allegations his track record showed that he is a dishonest person" citing three instances in the past. He also stated that "Mr. Singh's action is an offence under P & T Decree 1989 and is liable to imprisonment of a term not exceeding one year or fine of $1,000.00 or both if found guilty in a court of law". He concluded by saying that "In view of the seriousness of the offence and to discourage other officers attempting to do the same thing in future a deterrent punishment is warranted. Accordingly it is recommended that Mr. A. N. Singh be dismissed from the company".

Thereafter followed a letter dated 11.2.93 (exhibit D11) from the Managing Director dismissing the Plaintiff from the service of the Company in terms of clause 9.1.7 of the Manual with effect from 15 February 1993.

Subsequently the Plaintiff appealed against his dismissal but that was disallowed after consideration on 29.3.93 for the reasons given in writing (exhibit D13 and D14). The second request for reconsideration was also disallowed and communicated to the Plaintiff on 1.2.94 (exhibit D17).

(iii)	Investigation by employer under clause 9.4

The abovementioned steps were taken by FPTL to investigate the matter of the complaint. These steps in my view fulfil the requirement of clause 9.4 wherein it states "following an investigation and confirmation of the offence".

The "investigation" referred to means an investigation by the employer and not by a tribunal or a body for which there is no provision in the Manual.

The defendant as employer, as required by 9.4, carried out an internal investigation. It was not required under the Manual to set up a tribunal or a court-like body to hold a hearing with the complainants and Plaintiff being present personally to be questioned like in a Court of law. The Plaintiff was heard when allegation was put to him in writing and he denied it. After denial there was no point in having a hearing with all concerned being present in person. All that was required of the FPTL was that it had to be satisfied after investigation that "in the opinion of the Managing Director" (clause 9.4) the Plaintiff committed acts of gross misconduct. Here the FPTL had to be master of its own procedure subject of course to clause 9.4. Here there was no right to a personal hearing before the person who is to make the decision. The said clause 9.4 did not entitle the Plaintiff to any oral hearing or a hearing.

On the extent of the investigation and the factors to be taken into consideration I consider the following extract from the text book at 7.17 p.235 LAW OF EMPLOYMENT by N. Selwyn (1991 Ed.) apt:

7.17	There are certain limits to the extent an employer may properly make enquiries into an incident, particularly if the charge is a serious one, such as theft, for there may well be an improper interference with the processes of justice (Tesco v Hill) 1977 IRLR 63. The important thing is that the employer does not have to prove that an offence took place, or even satisfy himself beyond all reasonable doubt that the employee committed the act in question. The function of the employer is to act reasonably in coming to a decision. Thus in Ferodo Ltd v Barnes, an employee was dismissed for vandalism. The industrial tribunal was not satisfied that the employee was guilty, and therefore held that the dismissal was unfair. This finding was reversed by the EAT. The question was not whether or not the industrial tribunal was satisfied that the employee was guilty, but whether they were satisfied that the employer had reasonable grounds for believing that the employee had committed the offence, and had acted reasonably in dismissing for that offence. (emphasis added)

The author goes on to deal with standard of proof and past acts of an employee as follows (ibid):

The employer is not concerned to apply standards of proof which may be relevant in a criminal court. In Docherty v Reddy, the employee was dismissed for stealing 50p from the till. The employers took into account that they had suspected him of stealing similar sums on previous occasions, and it was held that they were entitled to have regard to their past suspicions. Clearly, a suspicion of previous theft is hardly evidence which would be admitted in a criminal court, but the issues are different. The employer is having to decide whether or not he wishes to retain the employee, not whether or not he was guilty of a particular offence. Thus the test is, what would a reasonable employer have done on the facts which he knew, taking into account the Code of Practice and current industrial relations practice (Parkers Bakeries Ltd v Palmer). The industrial tribunal must not act as a court of appeal, nor retry a case, and the fact that in subsequent criminal proceedings an employee is acquitted of a charge against him is irrelevant to the issue of whether or not the employer has acted reasonably (Davies v GKN Birwelco (Uskside) Ltd) 1976 IRLR 82. (emphasis added)

On 'degree of proof' John Bowers in his book A PRACTICAL GUIDE TO EMPLOYMENT LAW at page 164-165 clause 10.8.3.2 states:

The crucial question as formulated by Arnold J in BHS Ltd v. Burchell [1978] IRLR 379, is whether the employer:

entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time... First of all, there must be established by the employer the fact of that belief; that, the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

He goes on to state further on the extent of 'hearing' as follows (ibid at 7.19 p.236):

7.19	The employer is not obliged to hold a full scale trial, but there must be a careful examination of all the relevant matters. An investigation should not be conducted with such haste that important evidence is overlooked (Johnson Matthey Metals v Harding), 1978 IRLR 248 neither should it be delayed so long that issues become stale and hazy in the minds of witnesses (Marley Homecare v Dutton). 1981 IRLR 380 There is no particular form of procedure to be adopted, as long as the employee is given a fair hearing (Bentley Engineering Co v Mistry). 1978 IRLR 437. If it is necessary to consider disciplinary action in advance of criminal proceedings, it is still possible to discuss the matter without prejudicing a fair trial (Harris (Ipswich) Ltd v Harrison) 1978 IRLR 382, and a decision may be made on the basis of known facts, even though the employee has been advised to remain silent. If the evidence produced is sufficiently indicative of guilt (in the absence of any explanation) the employer is entitled to take some action. If, however, there are doubts, fairness may require the employer to wait until the criminal proceedings have been concluded (Harris and Shepherd v Courage (Eastern) Ltd 1982 IRLR 509). The object in holding a full investigation is to confirm suspicions or clear up doubts as to whether or not a particular act of misconduct has occurred (see British Home Stores v Burchell). If an employee admits the offence, there is no need for a full investigation, unless some useful information could come to light (Royal Society for the Protection of Birds v Croucher). 1984 IRLR 425. (emphasis added)

(iv)	Principle on termination after investigation

The principle to be followed on investigation before termination has been stated by BUCKLEY L.J in STEVENSON v URTU (1977) 2 All E.R. 941 in the Court of Appeal which was a case where the plaintiff a full-time employee of the defendant trade union, was dismissed by its executive after disciplinary proceedings, and his claim that this was invalid because he was not given an adequate opportunity to defend himself. The facts there were different in that the Plaintiff was not given the opportunity to explain his conduct or put his own case.

The following passage from the judgment of BUCKLEY L.J in STEVENSON (supra) at p.949 is pertinent and should be borne in mind:

"In our judgment, a useful test can be formulated in this way. Where one party has a discretionary power to terminate the tenure or enjoyment by another of an employment or an office or a post or privilege, is that power conditional on the party invested with the power being first satisfied on a particular point which involves investigating some matter on which the other party ought in fairness to be heard or to be allowed to give his explanation or put his case? If the answer to the question is Yes, then unless, before the power purports to have been exercised, the condition has been satisfied after the other party has been given a fair opportunity of being heard or of giving his explanation or putting his case, the power will not have been well exercised." (emphasis added)

(v)	Natural justice

The Plaintiff claimed in his Statement of Claim that the "Defendant would afford to and accord the Plaintiff natural justice in respect of any disciplinary matters" (clause 3(a) of Statement of Claim).

The procedure that should be adopted when summarily dismissing an employee is set out in the Manual and I have already dealt with this aspect hereabove. The following passage from SZAKATS INTRODUCTION TO THE LAW OF EMPLOYMENT 
(1975) paragraph 128 in this regard under this head is apt irrespective of the agreement:

"The employer's right of summary dismissal arises not from a 'divine' managerial 'right to fire' but from the terms of the contract, express, incorporated and implied. When an employee commits a sufficiently fundamental breach of the contract by failing or wilfully refusing to carry out his duties, the employer has the right to dismiss him 'on the spot' without giving the requisite notice." 

The question of natural justice does not arise in this case. All that the employer in this case has to do is to pay heed to the provisions to the clause in the Manual pertaining to Disciplinary Procedure and this it has done without being in breach of rules of natural justice if they do apply under clause 9.4. This was not a case of the type which required a hearing before dismissal for here dismissal was governed solely by the contract of employment under the terms and conditions contained in the Manual as revised (partly).

There are certain rights which a master possesses and the common law position is stated thus in MALLOCH v ABERDEEN CORPORATION (1971) 1 W.L.R. 1528 at p.1581 by LORD REID:

"At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."

I find that there was no breach of contract in the case before me. Also under the employment agreement there was no right to be heard given before dismissal as I have already stated. 

(vi)	Findings on evidence

On the whole of the evidence before me I am satisfied beyond doubt, although only a civil standard on a balance of probabilities is required, that the Plaintiff did tamper with mail on the two different occasions as alleged which culminated in his dismissal after investigation by the employer.

(vii)	Summary dismissal

The author of the text book A PRACTICAL APPROACH TO EMPLOYMENT LAW (supra) at p.125 at 9.4.2 states that the general test of whether summary dismissal is justifiable was stated in LAWS v LONDON CHRONICLE (INDICATOR NEWSPAPERS) LTD (1959) 1 WLR 698 as 'whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service'. Summary dismissal has been held to be justified in a case of dishonesty (SINCLAIR v NEIGHBOUR 1967 2 Q.B. 279). He further states that the "lawfulness of the dismissal depends inter alia on: (i) the position of the employee; (ii) his past record, and (iii) the social conditions of the time;"

In this case the Plaintiff was caught 'red-handed' in a way when seen by the two employees tampering with mail. Hence there was no need for a long inquiry. At the investigation stage there is no need to involve the employee, "but once the facts are fully gained, it must be put before him at a hearing. The two processes often merge into one, especially when only the employee can give information about the incident; in that case a distinct second stage of hearing is unnecessary" (Bowers, supra). On the facts of this case when there was a denial of the allegation no purpose would have been served with the type of hearing where parties are present.

As I said before the Plaintiff was clearly seen by two people tampering with mail. It is like in PARSONS (C.A.) LTD v McLOUGHLIN (1978) IRLR 65 where LAWTON L.J said that:

"Cases can occur when instant dismissal without any opportunity for explanation being given would be fair, as for example, when on the shop floor a worker is seen by the works manager and others to stab another man in the back with a knife."

Further to what I have already said on 'natural justice', in a further	reply to Mr. Sharma's argument about according natural justice and a hearing, I would say following the case of DUNNING (A.J) & SONS (SHOPLIFTERS) LTD v JACOMB (1973) IRLR 206, "the approach developed that a procedural defect would only make the dismissal unfair if the decision might have been different at the end of the day. The trend is to see procedural matters as issues of substance to be weighed in the scales of the overall merits of the case". (BOWERS ibid at 10.9.1 p.168).

Further in Bowers (supra) ibid it is stated:

In British Labour Pump Co Ltd v. Byrne [1979] IRLR 94, Slynn J posed two essential questions:

"(1) Have the employers shown on the balance of probabilities that they would have taken the same course had they held an inquiry, and had they received the information which that inquiry would have produced?

(2) Have the employers shown - the burden is on them - that in the light of the information which they would have had had they gone through the proper procedure, they would have been behaving reasonably in so deciding to dismiss?"

This applies as much to contractual procedural requirements. (See also Gray Dunn and Co Ltd v. Edwards [1980] IRLR 23.)

Conclusion

To sum up, the conduct of the Plaintiff on the facts established amounted to a misconduct for which, applying the law as well as the provisions of the Manual particularly clause 9.4 the FPTL (the defendant) as employer was justified in summarily dismissing the Plaintiff (the employee). What the Plaintiff has been found by FPTL and the Court on evidence to have done was a conduct which was inconsistent, in a grave way - incompatible - with the work in which he was engaged by the FPTL.

The FPTL carried out an investigation within the meaning of the word under clause 9.4 before dismissing the Plaintiff and it took into account factors which ought to have been taken into account in relation to the allegation. Here, the following statements of DAVIES L.J in SINCLAIR (supra) at p.289 are pertinent:

"The judge ought to have gone on to consider whether 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 this case, as SACHS L.J. said in SINCLAIR (supra) at p.290 that there was 

"misconduct of a type which justified instant dismissal; .... I would add that, where you get such wrongful conduct as goes to the basis of confidence between employer and employee, it is wrong to suggest (as the judge did) that such a set of circumstances ought in law not to be met by immediate dismissal, unless accompanied by a payment of money in lieu of notice".

The FPTL was also quite right in regarding the Plaintiff's conduct as "dishonest" when he knew very well or ought to have known that his conduct will not under any circumstances be approved by his employer.

In the outcome on the whole of the evidence before me I find that the dismissal summarily was justified. It was a lawful dismissal disentitling the Plaintiff to any form of relief. The action is therefore dismissed with costs against the Plaintiff which is to be taxed unless agreed.

D. Pathik
Judge

At Suva
8 September 1998
HBC0210J.94S