IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 408J OF 1999S

BETWEEN:

EASALA KAMA
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
DEFENDANT

Counsel for the Plaintiff: K. Muaror): MUAROR & CO.
A. Herman)

Counsel for the Defendant: (W. Clarke: HOWARDS
(T. Bukarau: NATIVE LAND TRUST BOARD, LEGAL DIVISION
(S. MATAWALU: S. MATAWALU & CO.

Date of Judgment: 23 March, 2007
Time of Judgment: 9.30 a.m.

JUDGMENT

This action began on 27 August 1999. The Plaintiff action on his own behalf filed an Originating Summons seeking declarations that the Defendant's action to suspend him from its employment was null and void and in any case, the Defendant's action was contrary to its terms and conditions or employment. The remedies sought are claim for unpaid salary and benefits and special and general damages. At a subsequent interlocutory hearing, the Court ordered that the proceedings continue as though it had been commenced by Writ. However, no consequential directions were made until the matter came before me in July 2002 whereafter, the Plaintiff filed his Writ on 5 August, and defence filed on 19 August.

Background Facts

The Defendant, the Native Land Trust Board ("NLTB") is a statutory body set up under the Native Land Trust Act (Cap 134), and vested with the control and administration of native land. The Plaintiff began, as an employee of NLTB, in February 1980 as an accountant cadet. A year later, he became an accountant, and in 1983, he was further promoted to senior accountant. In 1986 he was sent on attachment to the international accounting firm of Coopers and Lybrand in their Sydney office, where according to the Plaintiff, he also spent time and working experience with QANTAS and the New South Wales Department of Housing. He returned to Fiji in September 1987. In 1989 the Plaintiff was given an opportunity to pursue further studies towards his Masters in Business Administration degree in the United Kingdom, and returned at the end of 1990. The Plaintiff became Manager Finance and Corporate Planning upon his return. In July 1992, he was appointed Deputy General Manager, Administration. In a letter dated 8 July 1992, the then Acting General Manager, M. Bulanauca, conveyed as follows:

"I am pleased to confirm that the Native Land Trust Board in its meeting of 8th June, 1992 approved your appointment on promotion to the position of Deputy General Manager/Administration with effect from 1 June 1992.

You will be subject to the NLTB Conditions of Employment as well as the Senior Management Condition of employment of the Board for the time being in force.

As Deputy General Manager/Administration, you will be incharge of all the Administrative Services Departments (Finance & Corporate Planning, Human Resources and Information System) of the Board."

Earlier in January 1991, the Board had approved the job description of the Deputy General Manager, Administration. The document first confirms that the office "reports to" the General Manager. It also clarifies what Departments/Sections and Managers come under him. These are Manager, Finance & Corporate Planning; Manager, Human Resources; Manager, Information System; and the Senior Supervisor, Administrative Services. The "prime tasks" of these Departments are identified in the document. Specifically, the Finance and Corporate Planning's prime task is to provide "accurate and reliable planning and financial advise, reports and financial informations."

The job description states that the "purpose" of the Deputy General Manager Administration is:

"Plans leads, organises and controls the policy and functional areas of the Board's Head office to forster and support achievement of the organisation's missions and objectives."

Other specifications for the post are:

"Work Knowledge and Experience

▪ Extensive knowledge of business and management principles

▪ A thorough understanding of the policies, financial and accounting practices and systems of the organisation

▪ Demonstrated ability to manage people effectively

▪ Ability to coordinate and manage diverse functions

▪ Previous experience in one or more professional disciplines under area of responsibility

▪ Prior experience at senior management level.

Qualifications

▪ The position requires a tertiary qualification in one of the relevant disciplines i.e. Accounting, Computer Science or a broad business based degree,

▪ Participation in an advanced management programme such as MBA or Havard Business School would be an advantage.

Personal Skills and Qualities

▪ Able to work under pressure

▪ Proven analytical skills

▪ Well developed written and oral skills

▪ Proven ability to delegate authority whilst maintaining control."

There is a schedule to the job description that sets out in details the "key areas", "key tasks", "performance standards", and "performance measures", that are required and expected of the Deputy General Manager, Administration. Key area number 1 is intended to " "ensure achievement of agreed goals and targets" " and the key tasks, inter alia, are the establishment of effective information and management reporting system and communicating regularly with the staff of the progress. The "performance measures" to these tasks includes the production of projects including reports written in the timeframe envisaged. In key area number 3 dealing with accounting and financial services, the "performance measures" required that financial informations to be provided in an accurate and timely manner.

Conditions of Employment

The Plaintiff's letter of appointment makes it clear that he was subject to the "NLTB Conditions of Employment" as well as the "Senior Management Conditions of Employment."

The document "Native Land Trust Board Terms and Conditions of Employment" ("the Agreement") represents the agreement between the Board and the employees Association ("the Association") to forster "good relationship between the Native Land Trust Board and its Employees Association as well as to set the procedure for the settlement of grievances and disputes." Paragraph 1.03 of the Agreement clarifies that as far as employees in Grades 1 to 7, the Association is the "sole negotiating body with the Board." The Agreement, under paragraph 1.06,

"apply to all employees of the Board including those employed on contract terms except insofar as the contract terms specifically conflict with this Agreement."

According to the Board through the affidavit of its official, Serupepeli Naqase, the Agreement did not apply to the Plaintiff as he fell outside Grades 1 to 7 (the Plaintiff was on Grade 12) as set out in paragraph 1.03 above. Instead the Plaintiff was covered by the "Senior Management Conditions of Employment," which was recommended by the Hays Report of 1991. According to Mr Naqase, although this Agreement did not come into force until 1998, it had in fact been followed by the Board and the Senior Management since 1992, when the Plaintiff was appointed as the Deputy General Manager, Administration.

Production of Annual Accounts

As Deputy General Manger Administration, one of the Plaintiff's main tasks has to produce the Board's annual accounts, especially the accounts of 1990, 1991, 1992, 1993, 1994 and 1995 which were long overdue. This responsibility is conceded by the Plaintiff. In paragraph 7 of his affidavit he states:

"THAT one of the work targets of my position as Deputy General Manager Administration was the completion and auditing of the Defendant Board's annual accounts."

Towards this end, the Plaintiff with the endorsement of the Board in 1993 put in place an Action Plan that contained the following:

"Annual Accounts and Annual Reports for the years 1990, 1991 presented for Board approval in February 1993.

Annual Accounts and Annual Reports for the year 1992, presented for Board approval in June 1993."

These targets were not met as no annual accounts or reports were ready for the Board's consideration in either February or June of 1993. The Plaintiff revised the target and in his Action Plan 1994, he stated:

"Annual Accounts and Annual Reports for the years 1990, 1991, 1992, and 1993 are finalised as indicated in the 1994 Corporate Plan."

Again these accounts and reports were not ready on the time indicated by the Plaintiff. Concern was beginning to be expressed by the Board's management on these outstanding matters. This is clear from the extracts of the minutes of the Executive Management Committee ("EMC") meetings exhibited as "Exhibit 8" in the Plaintiff's bundle of documents. What is also abundantly clear from these minutes, was the difficulty and in the end the capability of the Plaintiff to meet the deadlines which he had set for the completion of the annual accounts and reports (1990 - 1995). For example at its 14th October 1995 meeting, the EMC was advised by the Plaintiff that the 1990 account would be ready for the Board to consider at its meeting of 18 December 1995. This did not happen. The 1990 account was finally placed before the Board on 13th March 1996. Even then, the account was accepted with conditions.

At the EMC's meeting of 12 November 1995 the Plaintiff gave his assurance that the 1991-95 accounts would be completed as follows:

1991 by 31 March 1996

1992 by 31 March 1996

1993 by 31 July 1996

1994 by 30 September 1996

1995 by 30 November 1996

Again none of these targets were ever met and throughout the EMC meetings of 1995 and 1996, the Plaintiff continued to give his assurances that the organisation's overdue accounts will be delivered, although the delivery dates kept shifting forward.

The growing disenchantment with the non-delivery of accounts on promised targeted dates as set down by the Plaintiff was beginning to gather momentum, not only amongst the executive management but also with the rank and file. The Association, on 25 August 1995, wrote to the General Manager expressing its grave concern with the outstanding 1990-95 accounts. The Association, placed the blame squarely on the door of the Deputy General Manager, Administration, the Plaintiff. The Association was especially concerned that through the Plaintiff's assurance, the Board had advertised to the public in a letter to the editor's column, in one of the dailies, of its undertaking that "NLTB expects to publish its Annual Accounts [1990, 1991, 1992, 1993, and 1994] shortly in April 2005." The Association noted that "this promise has not materialised."

According to the General Manager, Mosese Volavola, giving evidence before the Court, he continued to persevere with the Plaintiff's "action plan" because he was the only qualified accountant for the job and already in place. His faith in his ability seemed unperturbed by the criticisms already expressed and received from members of the organisation. However, on 28 June, 1996, the Board's auditors, Coopers and Lybrand wrote to the Chairman of the Board recommending actions to be taken within the organization, including the issues restructuring, the computer system and annual accounts. These areas mainly fall within the responsibility of the Plaintiff. The General Manager now felt that the whole question of the Plaintiff's capability was being questioned and in his memorandum of 8 July 1996 he urged the Plaintiff to give the Coopers and Lybrand recommendations his utmost consideration. He further requested the Minister of Finance to relieve the Plaintiff from the membership of the Board of the National Bank of Fiji to allow him to concentrate with his task at the Board. The General Manager had earlier, (23 March 1995) temporarily transferred away from the Plaintiff responsibilities over the Information Systems, again to enable the Plaintiff to focus on the task of bringing the accounts up-to-date.

By mid 1996, the ability of the Board to produce its 1991-95 accounts was, according to Mr Volavola, "causing much consternation and becoming a crisis". Discontent with the Plaintiff's performance spread to the top management resulting in a petition by almost all of the very senior executives of the Board sent on 16 August 1996 to the General Manager. It is important to set out the contents of the petition in full. It states:

"We the undersigned do hereby petition your office individually and collectively that:

• SINCE the Board's Audited Annual Accounts for the years 1991, 1992, 1993, 1994 and 1995 (5 years) which are KRA's of DGM/A are still outstanding despite promises after promises year in year out since 1993 that such would be completed at times set by him, and

• SINCE the Board's promise to the Public through the media (on the advice by DGM/Admin) that all outstanding accounts will be finalised by April 1996 was again not fulfilled, and

• SINCE Management's undertaking to the Board (on the advice by DGM/Admin) that legal option to restraint public scrutiny of the annul accounts is now certain to be challenged by the Fiji TV, thereby exposing the Organisation to further ridicule, and

• SINCE it has become apparent to us at this time of the year that the audit of such outstanding Annual Accounts will not be completed by the time again set by DGM/A which was announced publicly in Parliament by the Hon. Prime Minister in his capacity as Chairman of the Board, and

• SINCE the annual accounts saga will now, more than ever, become the subject of further public inquiry and/or investigation.

WE BELIEVE that

• The Deputy General Manager/Administration Mr Esala Kama is accountable and responsible for the state of affairs which has brought disrepute and ridicule to the Board.

• The reasons attributed (on advice by DGM/Admin) to the systems as the cause of inadvertent delay in finalising outstanding annual accounts is negated by the fact that the same systems were in place since 1986 and that annual accounts then were properly completed and audited.

• It is dangerous precedent for the Board not to appropriately respond to public expectation by eliminating the source of "professional negligence" that contributed to the NLTB annual accounts saga.

• Since 1992 Mr Esala Kama in his position as DGM/Admin had the opportunity but failed to provide effective leadership in this area.

• Mr Kama is a liability rather than an asset especially after the Board had invested heavily on him by sending him to attached to Coopers and Lybrand, Sydney when his management style was questioned by his subordinates and later sent to England to do his MBA, he has not changed from being destructive element to being productive within the organisation.

Considering all above, with our signatures endorsed herewith, we jointly declare that we have no confidence in Mr Esala Kama and consequently we urge you to terminate his appointment immediately, first, by asking him to resign gracefully, failing which termination. For the future of this organisation which we all treasure, given all we have shown above, a demotion is not recommended."

The situation deteriorated further when on 19 February, 1997, one of the Plaintiff's main aide in the preparation of the accounts, Isikeli Vosailagi, Manager of the Trust Section, in a memorandum to the Plaintiff, stated that he was ceasing all efforts to assist in the completion of the annual reports. Mr Vosailagi cited irreconcilable differences between himself and the auditors on one hand, and the plaintiff on the other, on the best approach to follow to hasten the production of the annual accounts. Despite the Plaintiff's request that he reconsider his decision, Mr Vosailagi remained adamant. He went further, in his memorandum of 20 February, saying that he was willing to be transferred, demoted or to resign.

Finally the General Manager decided to act and on 21 February, 1997, he suspended the Plaintiff from his employment with the Board citing non-performance, and specifically his inability to produce the 1991 to 95 annual accounts, amongst other shortcomings, as the reasons.

Plaintiff's Suspension and Court Action CA 336/1997

The Plaintiff's suspension was with immediate effect from 21 February 1997, the date of the letter. The Suspension was to remain.

"...pending the result of full investigation which the Board shall carry out in due course in accordance with Section 4 clause 4.05 paragraph (i) of the Native Land Trust Board Terms and Conditions of Employment.

In accordance with Section 4 clause 4.07, during the course of our investigations you will be given the opportunity to present and explain yourself with regards to all of the above."

On 28 February 1997, the General Manager appointed an Investigation Committee comprising the three next senior-most officers of the Board to investigate the allegations against the Plaintiff. The Committee met on 13 March 1997, with the Plaintiff on these allegations, and the minutes of the meeting show that the Committee had given every opportunity to the Plaintiff to explain and defend himself. Meanwhile on the same day the Plaintiff wrote to the Chairman of the Board informing him of the investigation while raising doubt as to the independence of the members of the Committee and the General Manager.

The Committee's report was subsequently received by the General Manager, confirmed the allegations of lack of expertise, care and in the end the non-performance of the Plaintiff especially in the completion of the 1991 to 1995 annual accounts. In addition the report and found that the Plaintiff did not have the necessary skill to develop "healthy working relationship" with his subordinate staff and others. The General Manager, then decided to impose the following disciplinary measures:

- demotion from Grade 12 to Grade 10, Manager special duties.

- Reduction in rent subvention.

- Reduction in entertainment allowance.

- Loss of vehicle privilege.

These were conveyed to the Plaintiff in the General Manager's letter of 19 March, 1997 to take effect from 24 March.

The Plaintiff appealed on 11 April 1997 to the Chairman of the Board which resulted in a newly constituted Sub-Committee of the Board chaired by Ratu Timoci Vesikula, hearing the Plaintiff's case. The result of the Sub-Committee's investigation and hearing was conveyed to the Chairman in a letter dated 3 June 1997. The Sub-Committee found the allegations against the Plaintiff proven, and recommended that the Board agree to the disciplinary measures earlier decided by the General Manager. The Board did so.

On 14 August 1997 the Plaintiff came to Court with an Originating Summons seeking the following declarations and orders:

(1) That the decision made on 19th March 1997 to demote him and deprive him of other benefits, was in breach of the principles of a natural justice was unlawful and therefore null and void.

(2) That the decision made on 19th March to 1997 to demote him and deprive him of other benefits was in breach of procedural fairness and therefore null and void; and

(3) An Order that the Plaintiff be reinstated.

The action (CA 336/1997) also sought special and general damages.

On 19 August 1997, the Board suspended the Plaintiff without salary and other benefits for an indefinite period, "pending the outcome of the Court action you have now instituted against the Board." According to the General Manager, in his letter of 19 August, to the Plaintiff, the Plaintiff's action in taking the Board to Court was a serious breach of ethics and constituted misconduct by the Plaintiff as an employee. Given that the matter of the Plaintiff's discipline and demotion was already before the Court, the Court expressed grave concern at the decision to suspend, stating that the Board's decision boarded on Contempt of Court. The Court's concern was met when the Board paid the sum of $29,460.67 to the Plaintiff on 17 June 1999. This represented his full salary entitlement from 19 August 1997, the date of his "indefinite suspension" to July 1998. In the meantime, the Court after having heard Counsel on the Plaintiff's summons, dismissed his application. It was satisfied that the Plaintiff was not denied natural justice nor the Board guilty of breach of procedural fairness, in dealing with the General Manager's allegations against him, and the Board's decision to demote him.

The position after the Plaintiff's Originating Summons was dismissed by the Court on 27 August 1999 is that the Plaintiff remained an employee of the Board on demotion in the position of Manager Special Duties. The Plaintiff after the decision of the Court, did not return to work, although he wrote no less than on 4 occasions to the Board as to whether and when he should resume his duties. He did not receive any reply and according to him, he stayed at home as he was still "suspended". The Board for its part did not attempt to respond to the Plaintiff's enquiries and one gets the impression that the Board did not get out of its way to seek a meeting with him. Mr Mosese Volavola himself in his sworn statement produced in Court said, "I, as General Manager of the Defendant did not want the Plaintiff to return to or work for the Defendant because, as I felt at that time (and now), there was a fundamental breakdown in the relationship between him and the Defendant."

On the same day the Plaintiff's action above was dismissed, he filed this Originating Summons seeking reliefs referred to above. The Defendant's late attempt to counter-claim was dismissed by the Court on 28 January 2000.

NLTB Re-Organisation

In May 1998, following a report by Coopers and Lybrand on the Board's structure and recommendations, the work of re-organising the Board began. It resulted in "clearing the deck" of all incumbent senior office holders and advertising anew their posts. For example the positions of General Manager and Deputy General Manager, (the two Deputy General Managers posts now merged into one) were advertised in the dailies on 2 May 1998.

To support the re-structure, a redundancy scheme was aligned alongside it. There is some debate as whether the Plaintiff was made a part of and benefited from this scheme. The Defendant claimed that the $29,460.67 paid on 17 June, 1999 was part of the redundancy payment. I shall deal with it later.

It is common ground that the Plaintiff applied for the position of General Manager but was unsuccessful.

The Status of the Plaintiff at Re-organisation of the Board

The confusion surrounding the Plaintiff's status between CA 336/1997 and the re-organisation of the Board arose as a result of the action taken by the Board's management to pay "on without prejudice basis" the sum of $29,460.67 to the Plaintiff following the Court's expression of concern that the General Manager's decision to suspend the Plaintiff without pay after he had begun action CA 336/1997, was tantamount to dismissal and would in turn, in the light of redress being sought, be contempt of Court. The Court noted that it was:

"… pleased to record that upon the Court disclosing its concerns, defence Counsel sought instructions and a "without prejudice" payment in excess of $29,000.00 was made to the Plaintiff on the 17 June 1999, being his full salary entitlement from the date of his indefinite suspension i.e. August 1997 until July 1998."

As far as the Court in CA 336/1997 was concerned, the Plaintiff remained on full salary from 19 August 1997 the date of his suspension, to July 1998. The Court did not hand down its judgment until 27 August 1999. The question is whether he remained suspended and if so to when, and in any event was the suspension unlawful.

Plaintiff's Suspension of 19 August 1997

The Plaintiff claims that the decision to suspend him without salary and benefits and without full investigation of the allegations against him and for over 30 days is in breach of Clause 4.05(1), 4.07, 4.09 and 4.11 of the NLTB Terms and Conditions of Employment. The General Manager's letter of suspension had relied on the Plaintiff's alleged breach of Clause 4.01 (Code of Conduct), as the ground for the decision.

Clause 4.05 requires the Board, where it has suspended an employee for a serious breach of the Code, to constitute full investigation "which the Board shall carry out in due course, provided that the notice of suspension shall indicate the nature of breach." Alternatively, the Board may require the employee to explain himself in writing. Clause 4.07 requires the Board to comply with the principles of natural justice when carrying out such investigation. Clause 4.09 states that the Board shall communicate directly with the employee any decision to impose disciplinary measures, and Clause 4.11 requires the Board to pay the suspended employee half of annual salary during the period of suspension, and upon reinstatement the employee will be reimbursed with salary forgone.

According to the Plaintiff, the Board did not comply with the provisions of the Terms and Conditions of Employment. The Board for its part seems to argue that the Plaintiff was in the management cadre of the organisation and did not come under the Terms and Conditions of Employment, which were intended only for those employees in salary grades 1 to 7. This is because Clause 1.03 specifically stipulated it.

With respect to the Board's view, Clause 1.03 does not say that the agreement is solely between the Board and those employees in salary grades 1 to 7. All that the provision stipulates is that in any negotiation between the Board and those in grades 1 to 7, the Association shall be the sole representative. Even Clause 1.06 does not support the Board's arguments. It merely states that the Agreement applies to grades 1 to 7 but also "including those employed on contract terms…", which could incur any other employee of the Board. Nowhere in the whole body of the Agreement does it specifically state that terms and conditions of employment that constitute the Agreement, applies only to employees in salary grades 1 to 7. It could very well be that the Association's Constitution limits its membership to employees in grades 1 to 7, and ipso facto the Agreement signed between the Association and the Board only applies to its members. The Court cannot assume this without evidence to show that this is so. In any case, the Court agrees with the Plaintiff that his letter of appointment, specifically states that he was subject to the NLTB Terms and Conditions of Employment.

The Court having found that the provisions of the Agreement apply, it follows that the disciplinary and grievance procedure set out in Clause 4 and Clause 9 of the Agreement apply to the Plaintiff. There is no doubt that when the Board through the General Manager, decided to suspend the Plaintiff without salary, following the Plaintiff's instituting CA 336/1997, it was required to carry out a full investigation into the Plaintiff conduct that resulted in his suspension. It is also common knowledge that the Board failed to follow through with an investigation. It had instead preferred to await the outcome of the Court action. The Court dismissed the Plaintiff's action for reinstatement as Deputy General Manager, which meant that he remained as an employee of the Board, as Manager, Special Projects.

The question is whether he remained suspended pursuant to the General Manager's letter of 19 August 1997. As far as the Board is concerned, the Plaintiff remained suspended until he was made redundant following the Board's reorganisation in July 1998. The Court does not necessarily agree. The Court is firstly of the view that the Board was obliged to carry out an investigation on the Plaintiff's alleged misconduct, as conveyed to him in the General Manager's letter of 19 August, as provided for under Clause 4.05 of the Agreement. Even although Clause 4.05 provides for the investigation to be carried out "in due course" the presumption must be that such course of action should be taken within a reasonable time in any case within 30 days provided for under Clause 4.05. The fact that the investigation may impinge on some issues in CA 336/1997 does not take away the Board's responsibility to act under Clause 4.05. This is especially so when the central question to the suspension dealt with the fundamental right of an individual.

The Court wishes to emphasis that the investigation being called for here is quite different and separate from the investigation earlier held following the Plaintiff's first suspension in February, 1997.

There are, the Court recognises, mitigating circumstances in the Board's inability to meet with the requirements of Clause 4.05 of the Agreement. The Plaintiff's claim and remedies sought in CA 336/1997 appeared to be inexonerably woven into the allegations of misconduct against the Plaintiff. The Defendant did not only accuse the Plaintiff of bringing the organisation into disrepute, but also that he had disregarded all the Boards procedures and the findings of the Sub-Committee of the Board. It would not have been possible for the Board, one could argue, to comply with Clause 4.05 until the Court had decided CA 336/1997. The fact remains that where the fundamental rights of individual is in issue, as was in this case, the Board is required to strictly comply with the redress and grievance procedures as laid down under the law; in this instance, Clause 4.05 of the Agreement. The Board is expected to act within the 30 days provided for under Clause 4.05. It did not do so. The Court's veiled warning against the Board's position which precipitated the payment of $29,460.67 representing the Plaintiff's overdue salary, can only be a reflection of the Court's general position with regards to any purported breach of the individual's fundamental right.

In all of this circumstances, the Court agrees that the Board's action to suspend the Plaintiff from employment on 19th August, 1997 was unlawful and contrary to the terms and conditions of his employment.

Finally I turn to the question whether the Plaintiff's employment was terminated by the re-organisation of the Board in May 1998. There is general agreement that the Board was re-organised in May 1998 resulting in redundancy package offered to some employees if necessary re-employed under contract, in the case of Senior Management. The posts of Deputy General Manager, and General Manager were advertised together in the daily newspapers from April to May 1998. According to the Plaintiff, he was made aware of the re-organisation and especially the vacancies created as a result, including the posts of General Manager and Deputy General Manager, only from reading the newspaper. At no time was he informed by the Board of the re-organisation, nor that he had been made redundant as a result. He had assumed all along that he remained an employee of the Board.

The Board's position is that the Plaintiff was no longer an employee and that the re-organisation had made him redundant. He was aware of his redundancy firstly, as he had received a redundancy package of $29,460.67, paid to him through his solicitors, Matawalu & Company, during the hearing of CA 336/1997, and secondly, he had himself applied for one of the vacant posts, that of the General Manager.

As I observed earlier, there is nothing on the record of the proceedings in CA 336/1997 to support the redundancy payment argument advanced by the Defendant. The Court had been quite specific what the sum represented, that is, the salary of the Plaintiff from 19 August 1997 to July 1998. The Plaintiff stated that the payment was for his salary that the Board decided not to pay upon his suspension. This position must be correct given the Court's expression of concern at the Board's "letter of suspension without salary". The Plaintiff's application for the General Manager's post was in response to the vacancies to the posts of General Manager and Deputy General Manager, advertised in the Fiji Times on 25 April 1998. Coopers and Lybrand, acting on behalf of the Board, responded on 3 June advising that the Plaintiff's application was unsuccessful.

The Court must assume that the Plaintiff was very much aware that the re-organisation of the Board had resulted in the Senior Management positions being declared vacant. This had led to redundancy packages being offered. More revealing in terms of the Plaintiff's state of knowledge, is the public notice of vacancies of these posts as they appeared in the daily papers. That the Plaintiff had applied for one of them, the General Manager's, supports the Defendant's argument that the Plaintiff, must have known that, as a result of his post of Deputy General Manager being advertised, he no longer was employed by the Board. The Court can only, given all of these, come to the inevitable conclusion that the Plaintiff's employment was effectively terminated at the re-organisation of the Board in July 1998. There is enough evidence to impute knowledge to the Plaintiff of his redundancy from the organisation, although no formal notice was personally given to him.

In reaching the conclusion that the Plaintiff's employment was terminated when the Board was re-organised and his substantive post of Deputy General Manager advertised, the Court must nevertheless express grave dismay at the conduct of the management of the Board. The Board's treatment of the Plaintiff following his filing of his action in CA 336/1997 was a disgrace. Even after the Court had censured the Board for trying to "dismiss" the Plaintiff because of CA 336/1997, the management did nothing to rectify the anomaly it had created in the Plaintiff's status; nor did it sought any clarification on it from the Court following its judgment. Instead, the Board avoided the Plaintiff like a plague. After the judgment, which still recognised the Plaintiff as an employee of the Board, the Board did nothing at all to communicate with the Plaintiff, let alone respond to his many letters of enquires concerning his resumption of duties. At no time was the Plaintiff told directly of the re-organisation of the Board, which he only found out, according to him, from reading the newspapers. More important, is the fact that he was not formally informed that he had become redundant as a result of it. He was left in the wilderness to read in the newspapers that his post of Deputy General Manager was being advertised and to assume for himself that he had been made redundant by the Board. It is an appalling treatment of an employee notwithstanding what one may think of his professionalism and competence.

The Plaintiff had every reason to cry foul, for not only was his post advertised without his knowledge, but there were no notice from the Board that his service had also been terminated. Furthermore, the Board had not offered him the redundancy package that it had availed the other senior officers of the Board affected by the re-organisation. It is after all just plain common decency and the very least expected of an employer to its employee or the master to his servant, to inform him, if not face to face, then by a letter of his redundancy and/or termination of employment as well as the re-organisation that has brought it about. The Board's failure to notify the plaintiff of all of these does great harm and discredit to the organisation and its role prescribed by law.

Court's Findings

In summary the Courts finds as follows:

(1) That the Plaintiff's suspension without salary on 19 August, 1997 was unlawful;

(2) That the Plaintiff remained an employee of the Defendant on demotion as Manager, Special Duties until the re-organisation of the Board on July 1998;

(3) That the Plaintiff's employment with the Board, ceased in July 1998 following its re-organisation.

I will deal now with the issue of damages.

Claim for Damages

Although the claims by the Plaintiff in the pleadings are anything but concise, there are clearly claims for special damages and general and punitive or exemplary damages.

Under special damages, the plaintiff claims unpaid salary and other entitlements during the period of suspension, that is August 1997 to July 1998 (one year). The Court is mindful of the fact that the sum of $29,460.67 (nett) was paid to the Plaintiff by the Board in CA 336/1997 and which the Court accepted as representing the salary of the Plaintiff for the period in question. It now is the Board's contention that the sum in fact represented the redundancy package that was owed to the Plaintiff following the Board's re-organisation. The sum represented the formula adopted by the Board in its redundancy scheme with its other employees, namely, 3 months salary plus 2 weeks pay for every year of service together with annual and sick leave accruing thereto. The Board also now contends that the Plaintiff's salary for the same period together with all his entitlements would have been $41,804.71 (gross). If this is indeed the case, then obviously the court in CA.336/1997 had been misinformed by the board to say the least. This Court nevertheless if of the view that the payment of $29,406.67 in CA.336/1997 remained as described by the Court albeit now representing a partial payment of the Plaintiff's salary for the period of suspension. Therefore the remaining unpaid balance of the salary should represent the $41,804.71 less the gross of $29,460.67, given at $36,579.20, being $5,225.51. This sum, $5,225.51 represents the unpaid portion of the Plaintiff's salary for the period of his suspension.

The Plaintiff had also, under this sub-head of loss of salary and entitlements, claimed mileage, loss of bonus opportunities, as well as loss of increment opportunities. The Court considers these claims to be without merit and therefore unsustainable.

Next is the Plaintiff's entitlement to a redundancy package offered to the management staff in 1998. According to the Board, the Plaintiff and those in similar grades, using the formula already described above, would have been paid the sum of $29,460.67 nett. The Court accepts this figure as payment due to the Plaintiff under this sub-head.

There is also special damages claimed by the Plaintiff for the loss of his house for the non-payment of his Fiji Development bank loan that is the direct result of the Board withholding his salary for the one year period he was suspended. Under this sub-head, the plaintiff is claiming $67,287.00. While the Court takes note of the Counsel for the Defendant's argument that the Plaintiff must give particulars of his special damages, the Court recognises that the degree of particularity required will depend on the facts of each case. In this instance, the court has already noted that the Plaintiff's pleadings were anything but precise. However, there had been extensive exchange of correspondence that included particulars to the plaintiff's claims between parties, which also contained detailed breakdown of the special damages. These documents had been tendered into Court thereto can usefully rely on them to accentuate the Plaintiff's claim under this sub-head.

The Court believes that there is merit in the Plaintiff's claim for damages resulting directly from the withholding of his salary between August 1997 and July 1998. This is firmly based on this Court's finding above that the Plaintiff's suspension without salary on 19 August 1997 was unlawful. That being so then the Plaintiff was entitled to receive his full salary throughout the one year period up to July 1998 at the time of the re-organisation. This in turn would have allowed him to continue his loan repayment with FDB on a monthly basis without default thus preventing re-possession and the subsequent sale of his house by the mortgagee. The damage is calculable and the details are set out in the Board's bundle of documents on Costs ("Doc 29"). I do not believe these damages to be "consequential". It arose directly from the Board's non-payment of the Plaintiff's salary, which action the Court in CA.336/1997 found to be patently wrong in law. The injury is in fact to his credit worthiness with the FDB and injury to credit in law must be pleaded and proved as special damages: Gibbons v. Westminster Bank Ltd. [1939] 2 KB 882. I am therefore satisfied that the Plaintiff's claim is sustainable in law and he is entitled to his claim of $67,287.00.

Under his claim for special damages, the Court allows the Plaintiff the following:

1.	Balance unpaid salary	$5,225.51	(net)	
2.	Redundancy package	$29,460.67	(net)	
3.	Loss of home	$67,287.00		
		$91,973.18		

As for general damages, the Plaintiff claims that owing to the Defendant's action, he had suffered loss of reputation, humiliation and mental anguish. It is trite law that a person is not entitled to damages for injury to feelings for breach of contract: Addis v. Gramophone Ltd. [1909] AC 488. Damages may nevertheless be awarded for injury to the Plaintiff's credit or reputation, or for inconvenience or loss of enjoyment where the injury, inconvenience or loss was within the presumed contemplation of the parties as likely to result from the breach of contract. This action is however, also grounded in tort, based on the Plaintiff's allegation that the Defendant's conduct, that is, in unlawfully suspending him without salary, was deliberately aimed to defame him and subject him to indignity. It being an illegal act, it ipso facto became a tortuous action.

The Plaintiff claims that because of his suspension without salary, he suffered loss of reputation resulting in him being refused job opportunities elsewhere. It is true that the Plaintiff is a qualified accountant and that he had tried without success to find temporary or alternative employment while on suspension. The Court can find no evidence to support the argument. The Plaintiff's reputation is in fact localised to the Board where he had spent all his working life. I do not find any merit in the claim under this sub-head.

There is however evidence that as a result of the Plaintiff being ignored and ostracised by the management of the Board, he was humiliated suffered damage to his dignity and pride. During the period of his suspension he was subject to the harassment by the Board, through the police, accusing him of receiving from abroad illegal payments as commission for the supply of the Board's computer system. Documents produced before the Court show that the management wrote to the police to investigate the Plaintiff's dealings and his bank accounts. He was subsequently interviewed by the police and requested to produce evidence of his overseas fund source, which he claimed was from his family members. He readily obliged to the satisfaction of the police. Again this episode is particularly unsavoury in character.

The Plaintiff was already disciplined by being demoted. When he sought redress from the Court he was suspended without salary. His attempt to invoke the grievance procedure under the Agreement was ignored by the Defendant. Instead, the Defendant began a police investigation behind his back. I find the Board's conduct spiteful and high-handed, if not insulting to the Plaintiff. The Defendant's behaviour contributed enormously, the Court finds, to the damage of the Plaintiff's dignity and pride. Under the circumstances, I find merit in the claim by the Plaintiff for compensation for injured feelings. The sum of $15,000.00 is reasonable under this sub-head.

Finally the Plaintiff is claiming for punitive or exemplary damages. In law, this head of damages are normally awarded to punish the Defendant. The House of Lords decision in Rookes v. Barnard (1964) AC 1129 is the leading authority on exemplary damages. In the first place, exemplary damages are quite different from compensatory damages, although they have often been merged into a single award. The Court, in considering whether to award exemplary damages, has first to be satisfied that the Defendant's conduct was oppressive and arbitrary and was pursued unscrupulously against the Plaintiff.

There can be no doubt that the actions by the Defendant, in first suspending without salary the Plaintiff for filing CA 336/1997, in ignoring the Plaintiff's urgings for the grievance procedures under the Agreement to be invoked; in covertly initiating a police investigation into his financial position without his being first granted the opportunity to explain, were all attempts, vendetta even, by the management of the Board, to get rid of a man who not only had defied them, but had brought much shame and disrespect to the institution. Each of these actions or non-actions were either illegal or highly improper.

The Court is mindful that exemplary damages are the exception and only in exceptional circumstances will it award them. There is also the fact that it has already awarded $15,000.00 in compensatory damages above. I am nevertheless satisfied, having taken into account all the surrounding circumstances not the least, the Plaintiff as a wage earner for a young family, that the Defendant's actions were deliberate and malicious and with reckless indifference to the Plaintiff. They constitute punishable behaviour. An award for exemplary damage against the Defendant is therefore in order and the Court finds in favour of the Plaintiff in the amount of $20,000.00.

Interests of 4 per cent per annum on the special damages from 19 August 1997 to 13 November, 2002 the start of the hearing. As for general damages the more appropriate rate would be 4 per cent from the date of issuance of the Writ to the date of judgment.

Conclusion

In summary the Plaintiff's application to be re-instated is dismissed.

The Plaintiff's claim for damages succeeds under the following heads:

1. Special Damages

(i)	Unpaid Salary	$ 5,225.51	
(ii)	Redundancy pay	29,460.67	
(iii)	Loss of home	67,287.00	
		$91,973.18	
	
	Interest at 4 per cent	19,260.46	
(from 19 August 1997 to 13 November 2002)	__________	
	Total:	$111,233.64	

2. General Damages

(i)	Compensatory damages
(for loss of dignity and pride)	$15,000.00	
(ii)	Exemplary damages	20,000.00	
		$35,000.00	
	
	Interest rate at 4 per cent		
	(from 27 August 1999 to 23 March 2007)	10,603.84	
		$45,603.84	
	Total damages awarded	=	$111,233.64	
		45.603.84	
		$156,837.48	

Judgment is entered for the Plaintiff in the sum of $156,837.48.

Costs of $1,200.00 is summarily assessed against the Defendant.

F. Jitoko
JUDGE

At Suva
23 March 2007