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Cox v Fielder Industries (SI) Ltd [1990] SBHC 27; HC-CC 102 of 1989 (3 May 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 102 of 1989

WARREN F. COX

-v-

FIELDER INDUSTRIES (SI) LIMITED

High Court of Solomon Islands
(Stanford-Smith J.K.R.)

Hearing: 15 March 1990
Judgment: 3 May 1990

ASSESSMENT OF DAMAGES

This is an action by the Plaintiff for wrongfully dismissal issued on the 9/5/89. Judgment was ordered on the 23rd November 1989 in default of production of a report by the defendant.

The normal measure of damages is the amount of salary the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less the amount he could reasonably be expected to earn in other employment.

The Contract of Employment is dated the 14/1/88 and was signed on the 20/1/8. It sets out the terms of employment for a fixed period of three years from about February 1988. There is no provision for earlier termination by notice by either party. The Plaintiff commenced employment 25/2/88. He was dismissed on the 28.2.89. The Court is now asked to assess damages for loss of salary and benefits for the period 28/2/89 - 25/2/91.

It is settled law that the dismissed employee must take reasonable steps to minimise his loss, that is he must seek and accept any reasonable offer of other employment. The onus of proof is on the defendant employer to produced evidence to show that the Plaintiff ought reasonably to have obtained alternative employment. Apart from being addressed on the point by Mr Campbell for the Defendant Company he has adduced no evidence on behalf of the defendants.

The Plaintiff has clearly been attempting to find alternative employment in his profession. Whether he is attempting to obtain positions beyond his qualifications or experience is questionable. According to his affidavit sworn on the 21.3.90 he had still not obtained employment (13) months later. He has sent out 14 CV's. He did not start looking for work until July and applications tail off in Oct - Dec 1989. There is no evidence of any attempt this year. One CV a month is not a convincing effort, and I am not satisfied that real efforts have been made to seek and accept any reasonable offer of other employment and restrict his claim to 12 months salary being a reasonable period in which a professional should find employment.

The Plaintiff claims not only his basic salary as specified in Para 3 of his affidavit but also loss of an enhanced amount as a result of salary reviews. It is clear that an employee cannot claim for the loss of benefits which the employer is not contractually bound to give. From the Plaintiff's affidavit it is demonstrated that the Defendant Company had exclusive power or discretion to award the review, and in fact, in the Plaintiff's case this was specifically withdrawn. In those circumstances the Defendant Company must be said to have an unferrered [sic] discretion of which there is evidence that they did not award the enhanced rate to the Plaintiff.

The contractual rate of salary was A$45.00 pa. That salary is gross. Any assessment of damages for loss of salary in an action must take into account a deduction for tax. There has been no evidence as to the defendant’s tax position in Australia. The positions here in the Solomon Islands according to Counsel, would be that a gross amount should be awarded to the Plaintiff as this will taxed in his hands, and any sum paid to his counsel would impose a liability upon him to pay any sums due. S44(1) Income Tax Act.

The Plaintiff would have received a sum by virtue of NPF provisions at a rate of 7½ gross salary, and I accept in this assessment a figure be included to take this into account for a period of 12 months.

In respect of fringe benefits, the defendants were obliged to provide furnished accommodation. That clearly was part of the salary package. The Plaintiff has simply claimed a monetary equivalent. He has not demonstrated any loss in that he rented out his own premises in Australia and I decline to make any award under this head.

Use of the Company vehicle was provided to assist the Plaintiff in the performance of his job. Use was restricted to company business and there is no loss to the Plaintiff. The same applies to the claim for petrol. The contract of employment restricts fuel to that used whilst on company business.

Professional fees were agreed at the rate of A$310 pa. Electricity and gas, telephone rental were dependent upon the employment and whilst the Plaintiff's skill as an accountant is displayed I feel that these are too speculative, as with house staff, and they again are part of the salary package.

National Insurance is agreed at $68.46 per month for twelve months.

Superannuation is also agree at 5% of salary.

The maximum personal baggage allowance the company accepted was 5Kg excess and 10 unaccompanied. ie 4 X 5 Kg excess. [20 Kg]. I allow SI$169.80,

Storage of goods is agreed at A$152.00.

Expenses in seeking new employment would be incurred at the end of contract and therefore would be an expenses normally incurred by the Plaintiff. I decline to award these costs.

Leave loading is agreed at 17½%.

Club membership is agreed at $260 pa

In Paragraph 7 the Plaintiff claims return airfairs [sic] Honiara Brisbane. Evidence adduced from the defendant was that his fares were paid upon taking up employment. He went on leave half way through his first year which would be his entitlement for the period 2/88 - 2/89 and his fare was paid upon termination. The entitlement is not convertible. I do not allow this aspect of the claim.

Departure Tax is a personal liability that would be payable by the Plaintiff and Meals would be payable again.

Cost to be agreed or Taxed to the Plaintiff.

(J.K.R. STANFORD-SMITH)
Registrar of High Court