IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 173 OF 2001S

Between:

ULAIASI HOLOFAKI
Plaintiff

and

PUBLIC WORKS DEPARTMENT
First Defendant

and

PUBLIC SERVICE COMMISSION
Second Defendant

A. Tikaram for the Plaintiff
S. Navoti for the Defendants

DECISION

From March 1993 to February 1998 the Plaintiff was an unestablished electrician Class B employed by the First Defendant.

On 16 February 1998 the Plaintiff left his place of work early and without informing his Supervisor. Later his time card was “punched off” by a colleague.

When this conduct was discovered the Plaintiff admitted asking one of his colleagues to “punch off” his card for him.

On 25 February 1998 the Plaintiff was summarily dismissed. In the letter of dismissal dated 25 February it was explained that his behaviour was “unfaithful” and fraudulent and had caused embarrassment and problems to his workmates. It was also explained that the dismissal was pursuant to clause 37 (a) of the Condition and Rules of Employment for Government Unestablished Employees issued by the Joint Industrial Council for Government Unestablished Employees which reads:

“For a serious act of indiscipline an employee may be summarily dismissed without notice on the authority of an Officer-in-Charge,”

On 26 April 2001 the Plaintiff issued a writ. He alleged that he had been unlawfully dismissed and sought just over $14,000 special damages for loss of wages plus general damages to be assessed.

On 24 May 2001 the Defendants filed the summons now before the Court which seeks dismissal of the Plaintiff’s claim under the provisions of RHC O18 r 18 (i) on the three grounds set out in the rule. The summons was supported by an affidavit by the first Defendant’s Permanent Secretary Anasa Vocea. The Plaintiff filed an affidavit in answer on 24 August.

On 29 August Mr. Navoti filed a written submission in support of the application. Citing established authorities Mr. Navoti submitted that the Plaintiff’s complaint was clearly in public law and should therefore have been brought by way of Judicial Review proceedings commenced as soon as possible and in any event no more than three months after the matter complained of as required by RHC O53 r 4.

Mr. Tikaram really offered no answer to that submission. Instead he focussed on the Plaintiff’s dismissal which he suggested was an unduly harsh punishment for the offence particularly when the Plaintiff’s long service with the PWD was borne in mind. He explained the delay in commencing proceedings by telling me that the Plaintiff only found work again in February 2000 and had not been able to afford to bring his claim to Court before. Citing Hubbock v. Wilkinson (1899) 1 QB 86, 91 Mr. Tikaram stressed that it was only in the clearest cases that the Court would strike out a claim under the provisions of Order 18.

In my opinion the Plaintiff’s claim is unarguable both procedurally and on the merits.

As to procedure the Courts in Fiji have always followed O’Reilly v. Mackman [1982] 3 All ER 1124 and held that it is an abuse of the process of the Court to permit a person to evade the restrictive provisions of Order 53 by initiating proceedings by way of an ordinary action (see e.g. Ram Prasad v. The Attorney-General ABU 58/97-FCA Reps 99/343). I do not accept that indigence can be a ground for departing from that principle, especially where there is provision, not here taken advantage of, for the fees normally leviable on the filing of a writ to be waived in cases of financial difficulty (see Proviso to appendix 2 to the schedule to the High Court (Amendment) Rules 1998 – LN 72/98).

As to the merits, it seems so clear to me as to be obvious that an employee who is dishonest or fraudulent in his employment “commits a serious act of indiscipline” (see e.g. Phillips v. Foxhall (1872) LR 7 QB 666). Even if the Plaintiff could somewhat how have successfully argued that he was not liable to be summarily dismissed the most to which he was entitled upon discharge was one week’s notice or one week’s pay in lieu (see clause 37 (b) of the JIC Agreement).

In all the circumstances I am satisfied that no useful purpose would be served by allowing this action to proceed further and accordingly the application succeeds and the writ is struck out.

M.D. Scott
Judge

4 September 2001