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Titili v Secretary of the Cabinet [2018] SBHC 67; HCSI-CC 318 of 2016 (8 June 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 318 of 2016

GABRIEL TITILI
Claimant

SECRETARY OF THE CABINET, ATTORNEY GENERAL
1^st 2^nd Defendant

Date of Hearing: 23 May 2017
Date of Hearing: 8 June 2017

Mr. Ghemu for Claimant
Ms. L. Fineanganofo for Defendant

Claim for moneys under employment contract

Brown J

1. The claim seeks damages for breach of employment contract. The damages are for an amount of $ 1,464,854.03 as set in the statement of case. The claimant had been contracted as Policy Secretary Sectoral Reform Productive Sector, PIMEU, office of the Prime Minister and Cabinet pursuant to Agreement for Service dated 26 December 2014. The document evidencing the Agreement was annexed to the sworn statement in support filed by the claimant, Gabriel Victor Titili on the 15 September 2016. The Agreement was signed on the 15 February 2015 but backdated to take effect from 26 December 2014. The fact of the Agreement is not in issue since the Secretary to Cabinet, Office of the Prime Minister also relied upon the Agreement in his sworn statement filed in support of the Defence to shown there had been no repudiation. Part of that statement was objected to on the basis of relevance and has been, at paragraph 4 struck out.
2. An amended statement of defence denied the relief sought, while admitting the Agreement and relying on clause 18(d) of the Agreement.
   • “18.0 Termination of Agreement

The employment of the officer under this Agreement may be terminated on any of the following grounds-

(a) – (c) (not relevant)
(d) If the officer or employee gives a 3 months’ notice of the intention to repudiate this Agreement or payment in lieu of the notice,”

3. Contract of Employment: Not under an Award, but bound by terms of the document. If it were under an Award, the ability for freedom of contract may be curtailed by the terms of Award. In other words, the right to terminate employment may be curtailed and the circumstances restricted to those prescribed by the Award.
4. By the normal employer/employee relationship, should it collapse, an employer cannot force an employee to continue to provide services, whether by court order or otherwise, and conversely an employee may decline to continue to work for the employer. It is wholly logical for that relationship to have such implied incidences or conditions for were it to be otherwise, it may be seen as forced labour, a construct unacceptable in a free society.
5. Where a written contract is concluded between employer and employee, the basic tenants of freedom to choose whether to maintain the relationship may be circumscribed or addressed by particular intentions, written into the agreement, especially in this case, for provision for notice or payment in lieu, to ameliorate the effect of the underlying right to withhold services or dispense with the services of the employee at any time. In other words, in an attempt to be fair, a notice provision may be included in an agreement, so as to allow an employer for instance time to find a replacement employee where the employee intends to cease his services and on the other hand, an employer may seek to pay out the value of the notice period where the employer no longer has use for the employee. The latter reason is the case of the Secretary of the Cabinet in these proceedings.
6. It would be wholly unfair if an employer who did not for whatever reason, want to continue the relationship to be forced by court order to pay an employee he no longer needs, wants or for whatever reason, has no further use for. This type of termination must be distinguished from instances of good reason to dismiss, for theft by an employee for instance. In these proceedings the respondent to the application makes no criticism of the claimant but relies wholly on the supposed right to terminate or conclude the employment contract.
7. The argument here concerns the use of the phrase “intention to repudiate this Agreement” in clause 18(d) of the document of service dealing with the right to terminate continued employment.
8. The verb “to repudiate” is used in the sense of “to rescind”.

Rescind is used in the sense “to cancel” so that, taking account of the common law right to end the continued employment, whether by act of the employer or employee, when read with the Agreement or contract I am satisfied the Agreement by clause 18 [d] allows rescission of the employment relationship by either party. The clause provides for a period of notice before “termination” of employment takes effect or in the case of termination by the employer, that notice period incumbent upon the employee to continue to work, may be waived by payment of the moneys due for the period.

9. By letter dated 19 February 2016 under hand of the Secretary to Cabinet, notice of termination was sent the Claimant, relying on the provision of Clause 18.0(d) of the Agreement, effective from the date of the letter. By paragraph 13 of the Defence the Government pleaded payment of the total sum of $99,392-39 in satisfaction of its liability under clause 18.0(d) of the Agreement. [The moneys due for the 3 months]
10. By clause 2.0(d) of the Agreement Operation Period, by sub clause (d) the officer, Dr. Gabriel Titili may be terminated pursuant to any of the paragraphs under clause 18 (b) to (i).

The letter of termination expressly relied upon clause 18.0(d).

11. The Category B Claim sought damages for breach of contract, the “Agreement of Service” being for a sum of $ 1,464,854.03 and ancillary moneys.
12. The claimant by his lawyer wrote to the 1st defendant denying the purported repudiation under clause 18(d) of the contract and affirmed the contract. The damages claimed represent moneys calculated to be the balance of moneys from the date of purported termination until the end of the 4 year contract period.
13. While the appointee, the “Officer” named in the Contract of Service or employment was named to be a “political appointee” the description does not affect a fair reading of the meaning to be attributed to clause 18(d). That meaning is set out above.

The fact that the contract describes the “officer” as a political appointee does suggest that changes to political office may result in changes to such political appointments. There are no particular clauses in the contract providing for the particular circumstance of the political officer being “put off” rather the general clause 18 (d) addresses termination in all cases.

14. Mr. Ghemu for the claimant was allowed 14 days for submission for he appeared unable to make argument on the day fixed for hearing, rather stating that the case was one of repudiation yet advanced neither facts nor law to support the argument.
15. In answer the defendant showed the Agreement had not been repudiated. The moneys paid to the claimant were detailed with some particularity in paragraphs 10-18 of the Statement of James Remobatu filed on the 19 May 2017.

Payment in accordance with the notice term in clause 18(d) is evidence in support of the defendants’ denial of repudiation. The fact of payment illustrates acceptance of the contract, not an intention to repudiate. I accept the evidence and find the Secretary to Cabinet, as the employer has not been shown to have repudiated the contract.

16. This is not a case where a party has by word or act, refused to continue with the contract in some essential respect thus allowing the other party to forth-with be exonerated from any further performance of his promise and is at once entitled to bring his action.^[1]For this agreement has terms providing for termination in various circumstances, and the principles affecting renunciation during performance of the contract do not arise. No good reason has been advanced by the claimant by any subsequent submission to reconsider my findings on the facts.
17. The defence has been made out.
18. There shall be judgment for the defendant.

The claimant shall pay the defendants costs.

THE COURT
_____________
BROWN J

^{[1] 2} Court v The Ambergate Railway Company [1851] EngR 510; (1851) 17 QB 127