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Inia v Niue Philatelic and Numismatic Corporation Board [2016] NUHC 5 (7 November 2016)

IN THE HIGH COURT OF NIUE
(CIVIL DIVISION)

CV9/2016

IN THE MATTER OF: Application for a High Court Judgment to reverse the decision of the Philatelic & Numismatic Corporation to terminate the employment of the Plaintiff in her contract capacity of manager Article 62; Article 69(3)(c) Constitution of Niue Clauses 2.1, 5, 10.1, 10.2(a)(b) & 16

BETWEEN: AROHA TAUMOKATAMA M INIA

Plaintiff

AND NIUE PHILATELIC AND NUMISMATIC CORPORATION BOARD

Respondent

DECISION OF COXHEAD J

[1] The plaintiff in this matter originally sought reinstatement to her position she held since 2014 on a fixed term basis.
[2] She now seeks:

1. An increase in the bonus she received in 2015 for the 2014-2015 period;
2. Payment of bonus for the 2015-2016 part of her contract; and

100. A lump sum payment of over $400,000.00.
     

Respondents Claim:

[3] The respondents in this matter seeks an order for the plaintiff to immediately return all property including original and copied material and/or data information belonging to Niue Philatelic and Numismatic Corporation Board (NPNC).
[4] I will deal with this matter first.
[5] I heard from Ms Vanessa Lovini. The most telling pieces of evidences that she presented being and invoice for a hard drive and an invoice for a printer.

[6] However the plaintiff explained that the hard drive was purchased by Matthew for Simon’s house as stated on the invoice.

[7] Based on the computer screen shots, invoices and the statement of Ms Lovini it is difficult to be conclusive that the plaintiff has downloaded onto a hard drive the information the respondent claims she has taken.

[8] However, what is telling is that the plaintiff has attached copies of confidential, sensitive and private correspondence that she could only have obtained in the course of her time when employed with NPNC.

[9] She readily admits that she photocopied the material. This she did while she was under contract with NPNC. She admits that she knew the material was confidential. To her credit, she accepts that the copying of the material was a breach of confidentiality - a breach of her contract.

[10] I could infer or presume that given that the plaintiff has these documents - that she also has other documentations in hard copy or electronic form. I could also infer that given she has this documentation, she has a hard drive, and a printer and other documentation and a keyboard. But there are gaps in the evidence which do not allow such an inference.

[11] The respondent states in the application that “we suspect” that the plaintiff has certain materials - and I too suspect the same. But I cannot conclude that the plaintiff does actually have that material. The respondents motion is therefore dismissed.

[12] For completeness I note that I did make orders this morning that the materials that is attached to the plaintiff statement remains and should remain out of publication.

Plaintiff’s Claim

NPNC Contract

[13] The plaintiff had been contracted in her role since 2014. She and NPNC had in my view operated on the basis of the contract presented to the court. The plaintiff was paid as per to the contract, she performed the duties as noted in the contract. That contract was for a fixed term and ended on 18 July 2016.
[14] NPNC knew that - the plaintiff knew this and confirmed as much in court today
[15] The plaintiff also knew there was no expectation that the contract would be renewed. She confirmed today that she understood Clause 3.3 of that contract and that provides that, and that contract would not automatically be renewed.
[16] When the contract finished, the plaintiff continue to work in the NPNC role and this was on an interim temporary basis.
[17] The plaintiff confirmed for the court that she knew that it was a temporary role and she knew that this could end by resignation or by a new appointment.
[18] The plaintiff in my view was in an interim caretaker position at this stage and I don’t see any other evidence to suggest otherwise.
[19] On the 29 June Mr Wayne Harris-Daw on behalf of the Board informed the plaintiff that the Board had decided to set her - review, extension of contract, and bonus consideration - aside until the Board meet in July.
[20] How I read this is that the Board would consider those issues at its July meeting. The plaintiff was therefore on notice.
[21] On 1 August by letter the Board informed the plaintiff that they would not be renewing her contract and that the position would be advertised and she could apply for that position.
[22] On the 5 August, 4 days later the plaintiff emailed to say:

1. She would not apply for the job; and
2. She would not finish work on Wednesday 10 August.

[23] As matters transpired that is exactly what happened.
[24] NPNC looked to get someone to cover these duties from 10 August.
[25] The plaintiff left work on10 August but not before she provided a letter of 7 August that looked to retract her resignation.
[26] It is clear to me that the plaintiff and NPNC operated on the basis of the fixed contract and that contract came to an end. It is also clear that after July 2016 the plaintiff was employed on a temporary interim basis.
[27] Once notified that the Board did not intend to renew her contract she could have kept working until the position was filled and looked to apply for the position or she could have done what she did and that was she choose to resign. Which by her email of 5 August she did and also by her actions of finishing work on 10 August.
[28] Her retraction was too late and did not have the effect of re-contracting her.
[29] NPNC had acted on her resignation and as Wayne Harris-Daw has stated “were left with no choice but to get someone in quickly to cover the position”.
[30] In my view that the temporary contract of employment was justifiably terminated through the plaintiff resignation.

Bonus

[31] So what are the issues with regard to the bonuses?
[32] The plaintiff was paid a $6,000.00 bonus in 2015. I agree with counsel for the respondent that it is a performance related bonus and is discretionary.
[33] If the plaintiff had issues with the bonus the plaintiff should have raised questions at that time.
[34] In terms of her right to the most recent bonus it is difficult for the court to intervene in matters of discretion.
[35] The court is being asked to assess performance without being given criteria and then asked to assess a bonus based on an unknown criteria.
[36] Even if the court were to intervene I have nothing before me to guide me of what a proper assessment of performance would be or anything to guide the court as to how the bonus is calculated.
[37] The bonus is discretionary and the court will not look to intervene in these particular circumstances.

Constitutional issue

[38] The last matter for consideration is Constitutional. The submissions made in regards to this are in my view somewhat misguided. I do not read Article 62 of the Niue Constitution as guaranteeing a right to employment.

Decision

[39] The plaintiff applications is therefore dismissed.
[40] Given the respondent indications as to costs, costs will lie where they fall. That is the decision of the court.
[41] Copy of the decision is to be served on all parties in this matter.

Dated at Alofi, Niue this 7^th day of November 2016.

_____________________

C T Coxhead, J