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Naikarua v Airports Fiji Ltd [2012] FJHC 966; HBC132.2005 (22 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC 132 OF 2005


BETWEEN:


SIMIONE NAIKARUA
of Carreras Road, Votualevu, Nadi.
PLAINTIFF


AND:


AIRPORTS FIJI LIMITED
a limited liability company established under the Public Enterprises Act
and duly incorporated under the Companies Act
and having its registered office at Nadi International Airport.
DEFENDANT


Before : Priyantha Nāwāna J.


Counsel for Plaintiff : Mr F S Koya
Counsel for Defendant : Mr Kemueli Qoro


Dates of Trial : 20-21 February 2012
Date of Judgment : 22 March 2012


JUDGMENT


  1. The plaintiff, by his writ of summons dated 16 May 2005, instituted this action against the defendant seeking inter alia:
  2. The plaintiff abandoned his plea for re-instatement with pay and other benefits from the defendant prior to the trial.
  3. It was admitted that the plaintiff was employed by the defendant from 12 April 1999 on the basis of a written Contract of Employment dated 15 February 1999. The plaintiff's employment was terminated with effect from 18 March 2005.
  4. The suit, which was founded on breach of the contract of employment, proceeded to trial on the disputed issues of:
  5. Under clause 12 of the Contract of Employment, termination was provided for as follows:

....

12.2 The contract may be terminated at any time by the employee giving AFL, or AFL giving the employee, not less than three months' written notice of its termination.


12.3 Notwithstanding the terms of this agreement, AFL may terminate this agreement at any time by notification in writing (but without prejudice to the rights of either party against the other in respect of any antecedent breach of this agreement) if the employee shall:


a. be guilty of any gross misconduct; or


b. unreasonably neglect or refuse to carry out any duties as described in annex 1, or subsequently assigned to him. Provided, however, that reasonable enquiries shall have been made into any alleged misconduct or neglect of or refusal to carry out duties, and the employee shall have been given full and proper rights to be represented and heard, before this agreement is terminated in terms of this clause 12.3.


  1. At the trial, the plaintiff gave evidence and produced the Contract of Employment as P1 and the Letter of Termination as P2, which were in the Agreed Bundle of Documents [ABOD] filed on the eve of the trial.
  2. The plaintiff said that he assumed office as the Manager/Financial Services at the defendant company with effect from 12 April 1999 having entered into the contract on 15 February 1999. He said that his duty was specified under clause 3 of P1, which was principally for provision of accounting and financial services to the defendant company. The plaintiff was also appointed as the Secretary to the Board of Directors [Board] from December 2000 with additional emoluments and other fringe benefits. It was his duty to prepare 'papers' for presentation to the Board and make records thereof and maintain minutes of the Board meetings.
  3. The plaintiff said that his employment was terminated with effect from 18 March 2005 on the basis of the letter marked P2. He said that there was a 'Board Paper' for the payment of COLA for members of the staff of Airports Fiji Limited Staff Association (AFLSA) and Fiji Public Service Association (FPSA) pursuant to two memoranda of agreements dated 21 December 2004 and 20 December 2004 marked as P4 and P5 up to an amount of $ 198 591.00. The plaintiff said that, following the Board's meeting on 22 December 2004, he had prepared the minutes based on what was agreed by the Directors of the Board. Thereupon, the Chief Executive Officer [CEO] of the defendant-company issued a staff circular, too, certifying the payment on 23 December 2004, which was marked as P3. Payments, however, had been made in a total amount of $ 655,740.00 in December 2004.
  4. He said that, in January 2005, questions arose on an issue of overpayment and the negotiations between the defendant and FPSA and AFLSA began. However, it was not possible to recover the over-paid amounts from the employees.
  5. Answering cross-examination, the plaintiff admitted that he was paid three months' salary in lieu of the notice before termination of the employment as provided for by the Contract of Employment. The plaintiff further admitted that it was permissible under clause 12.2 of the Contract of Employment in lieu of such notice.
  6. The plaintiff confirmed that he was the Secretary to the Board of the defendant and it was his duty to take down minutes of the Board Meetings and prepare papers for discussion by the Board. He admitted that the payment was discussed on 22 December 2004 on the basis of a working paper where approval was granted only for payments in a total of $ 198,591.00. The plaintiff admitted that the payments in an amount of $ 655,740.00 as COLA payments to the respective employees were not in accordance with the authorization of the Board; but, was far in excess of the authorized amount. The plaintiff admitted that he paid the amount in excess of what was authorized on his assumption that it was the amount approved by the Board.
  7. The defendant did not offer any evidence after the close of the plaintiff's case; and, instead submitted that the plaintiff's case must fail on his own admissions in court in light of the provisions of the Contract of Employment-P1. Both counsel, thereupon, moved for time to file written-submissions by 06 March 2012. No written-submissions, however, were filed by that date.
  8. In light of the above evidence, it is not difficult for me to answer the issues as set-out in paragraph 4 above. Accordingly, I answer the issues in (i) and (ii) in the affirmative and the rest in (iii) and (iv) in the negative.
  9. I hold that the careless and negligent conduct of the plaintiff invested the defendant with the power of terminating the employment of the plaintiff as provided for under clauses 12.2 in terms of the Contract of Employment-P1. However, the defendant, in my view, had been far generous and compassionate in awarding three months' salary in lieu of a purported notice under Clause 12.2 of P1 without proceeding in terms of Clause 12.3, in the event of which, the plaintiff would not perhaps have been able to reap that benefit.
  10. I further hold that the right to a hearing is not an inveterate rule; and, that there had been no failure in the observance of the applicable rule of natural justice in the circumstances of this case as the defendant had made reasonable inquiries to satisfy itself as to the cause for the overpayment of the large amount. A formal inquiry to ascertain the cause would, in the circumstances, have been a useless formality.
  11. The plaintiff has not proved his case on any of the grounds on a balance of probabilities. I dismiss the plaintiff's action subject to costs fixed at $ 750.00 payable to the defendant.
  12. Orders, accordingly.

Priyantha Nāwāna
Judge
High Court
Lautoka
22 March 2012

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