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Wong v Fiji National Provident Fund Board [2018] FJHC 739; Civil Action 219 of 2015 (14 August 2018)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 219 of 2015

BETWEEN : WILLIAM WONG

PLAINTIFF

AND : FIJI NATIONAL PROVIDENT FUND BOARD

DEFENDANT

Coram : The Hon. Mr Justice David Alfred

Counsel : Mr Babu Singh for the Plaintiffs.
Ms S Sara, Ms L. Bula with her, for the Defendant.

Dates of Hearing : August 2018
Date of Judgment : 14 August 2018

JUDGMENT

1. The Plaintiff in his Statement of Claim says as follows:
   • (1) In May 2009 the Defendant advertised for Senior Management Positions, one of which was Assistant General Manager – support services (AGM-SS).
   • (2) The Plaintiff applied for this position and was selected to attend the interview.
   • (3) By a letter dated 7 October 2009, the Defendant offered the said position to the Plaintiff.
   • (4) On 15 October 2009 the Plaintiff accepted the offer and the parties formalised an employment contract (contract) with terms and conditions for a term of 3 years.
   • (5) The Plaintiff was to resume (sic, assume) employment with the Defendant upon a date to be nominated by the Defendant.
   • (6) The Plaintiff waited from 15 October 2009 to commence work but was notified by the Defendant to until further notice.
   • (7) The Defendant never sent any formal letter of termination of employment or notice thereof.
   • (8) Upon establishing the Defendant’s intention of not complying with the contract the Plaintiff mitigated losses by seeking alternative employment. The Plaintiff lost the opportunities of 2 executive positions.
   • (9) The Plaintiff managed after 21 months (15 October 2009 to 15 July 2011) commenced an senior executive position.

(10) As a result the Plaintiff suffered loss and damage and mental stress etc.
(11) Wherefore the Plaintiff claims specific (sic, special) damages of $175,822.50 and general damages.

2. The Defendants in its Statement of Defence says as follows:
   
   • (1) Due to reforms and its strategic planning process the position offered to the Plaintiff was no longer required.
   • (2) It was communicated to the Plaintiff that the said position offered to him would no longer be available to him.
   • (3) The Plaintiff had not performed any work for the Defendant and thus was not entitled to any salary.
   • (4) There was no reason for the Plaintiff to have foregone opportunities of the employment when he was aware of the Defendant’s restructure plans.
     
3. The Plaintiff in his Reply to the Defence says as follows:
   • (1) He denies there was any written communication between the Plaintiff and the Defendant on the job.
   • (2) He states he was employed by the Defendant from the day he entered into the Employment contract and is entitled to the salary and benefits therein. Further he was never given any termination letter.
     
4. The Minutes of the Pre-Trial Conference dated 25 April 2017 include the following:
   

Agreed Facts

(1) The Defendants via a letter dated 7 October 2009 offered the position of AGM-ss to the Plaintiff (offer).
(2) The offer sets out the remuneration package for the said position.
(3) On 15 October 20098 the Plaintiff accepted the terms of offer made by the Defendant.
(4) The Defendant advised the Plaintiff to wait until further notice to commence work with the Defendant.
(5) The Defendant kept on waiting and waiting.

Issues to be Determined

(1) Whether the Defendant (sic, Plaintiff) was notified that the position offered no longer existed on the Defendant’s organizational structure?
(2) There was no formal letter given to the Plaintiff advising of the change in structure?
(3) How compensation is the Plaintiff entitled to?

5. At the commencement of the hearing the Defendant’s Counsel confirmed that the documents in the Appeal Bundle of Documents were agreed and admitted.
   
6. The Plaintiff (PW1) gave his evidence. He said in July 2011 he obtained employment with Fiji Post and retired in 2017. He applied for the position of AGM-ss and was interviewed in July 2009 by the C.E.O. and the Manager Human Resources (MHR). He signed the letter of offer and gave it to the MHR. He communicated with the MHR on the telephone and saw him personally and he told PW1 he would let him know. During the 21 months he was waiting he was unemployed. There was no letter from the Defendant to date stating the job was not available.
   
7. Under cross-examination PW1 said he was unemployed when he applied to the Defendant. There was a letter of offer only but never a contract. He was aware it was likely reforms were taking place with the Defendant but was not aware that this would make my position no longer available. His e-mail of 29 January 2010 to the Defendant stated he was applying for another job – a lower position. If other job was not available because of the reformsfiled a writ for vacant possession in Nasinu Magistrates’ Court Civil Action No 82 of 2009 when after waiting from 11 December 2008 till 5 August 2009, they saw no sign of the Plaintiff “taking its rotten steel”.