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Kaun v Telecom Vanuatu Limited [2002] VUCA 17; CA 21-01 (26 April 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case 21 OF 2001

BETWEEN:

MR. JERRY ESROM KAUN
Appellant

AND:

TELECOM VANUATU LIMITED
Respondent

CORAM: Justice B. ROBERTSON
Justice J. VON DOUSSA
Justice D. FATIAKI
Chief Justice V. LUNABEK

COUNSEL: Mr. Saling Stephens for the Appellant
Mr. Nigel Grant Morrison for the Respondent

DATE OF HEARING: 22nd April 2002
DATE OF JUDGMENT: 26th April 2002

JUDGMENT

Jerry Esrom Kaun was employed by Telecom Vanuatu in various technical capacities from the 01^st of September 1989 until on the 08^th of November 1996. His employment was suspended by the personnel manager on that date and subsequently on 28^th November 1996 the managing Director dismissed him from his employment.

This all arose from the fact that at the end of October 1996 it came to light that there had been a misuse of two Vanair tickets, which were in the appellant’s possession. These were tickets, which had been acquired in the usual course of employment by the respondent for use by its employees for the company’s benefit.

On 31^st October 1996 Mr. Kaun was asked for an explanation. He did so in a letter of that date. Subsequently on 4 November he gave a totally different explanation and conceded that his first explanation had been untrue but said that the second was true. The appellant accepted he had converted the unused tickets into one return ticket to the same destination and that he used the ticket partly himself and had let another person use the other part.

The disciplinary response was governed by the provisions of Telecom Vanuatu Internal Regulation. No. 20 of those regulations provides :

20. ACT OF DISOBEDIENCE.
    

“Any act of disobedience shall be punishable after the relevant parties have been heard and subject to the approval of the District Labour Department.

Depending of the seriousness of the offence, the employee shall

- be given a simple warning without financial penalty;
- be given a reprimand;
- laid off without pay for a period of time to be decide;
- instantly dismissed (i.e. without prior notice).

The trial Judge heard evidence from the appellant and from Epheriam Mathias who worked at the Labour Department and Simeon Tavoa who was also at the Labour Department. For the respondents evidence was given by Jean Yve Bibi who was the personnel manager who had been involved with the issue.

The Judge accepted the evidence of Mr. Bibi who he found clearly had a full knowledge and recollection of events. He specifically noted that where there was difference between the evidence of Mr. Bibi and that of the appellant, he preferred that of Mr. Bibi. In respect of the two officers of the Labour Department he was of the view that they were working from memory with no contemporaneous documents and he found their evidence showed confusion as to the attitude of the Labour Department.

On the basis that the provisions of Regulation 20 had been dealt with the Judge concluded:

“I find the misuse of the defendant’s funds and giving an untrue explanation was sufficient in itself to justify dismissal without notice. The plaintiff was supplied in writing with the defendant’s concerns (memo of 31^st October 1996) and given the opportunity to give an explanation. He was given a further chance to explain when the first explanation proved untrue. The Labour Department was consulted between suspension and dismissal and approved the dismissal”.

The appeal is advanced on the basis that the judge erred in fact and law

(a) in not giving proper weight to the whole evidence including a reference provided in 1998 by the person who is now the respondent’s Managing Director.

(b) in finding the misuse of funds and giving an untrue explanation was sufficient to justify dismissal without notice and
(c) in failing to consider and decide the disciplinary issues particularly whether there had been a breach of the procedural requirement relating to the principle of natural justice in dismissing the appellant.

There is no issue now about the fact that Mr. Kaun misused tickets, which were clearly the property of the respondent and obtained for the benefit of the respondent. Secondly, there is no question but that he provided a totally untrue explanation about having done so when he was first confronted with the situation.

Thirdly, although Mr. Stephen Saling argues that the judge could not have been satisfied that the Department of Labour had been involved because of the conflict in the evidence of Mr. Bibi on the one hand and the recollection of events of Mr. Mathias and Mr. Tavoa on the other but we do not agree.

Counsel’s initial submission was that there was a problem about the fact that there was no written evidence of the approval of the Department of Labour and no corroboration of the assertion by Mr. Bibi.

Mr. Stephen eventually agreed that the regulation does not require that the approval of the District Labour Department should be in writing. The judge heard and saw all witnesses who were called. On the basis of what was said by Mr. Bibi the court was satisfied that Mr. Mangawai of the District Labour Department had provided the necessary approval. Mr. Mangawai was not called. Either party could have called him. In the absence of direct evidence from him the Court was entitled to assess the material, which was available. There is no basis to interfere with the finding that there was an approval.

Further we agree with the assessment of the Judge at first instance that what occurred was sufficiently serious to warrant instant dismissal. The misuse of the tickets was of itself a particularly serious matter within a relationship, which must rely on trust, confidence and total fidelity. That was aggravated by the appellant’s deliberately being untruthful when the matter first came to light.

We are unable to see how the view of the man who had supervised the appellant in the period 1989 to 1991 could markedly alter that assessment even if he is now the managing director of the respondent company.

Dishonesty within an employment relationship must always be treated as a serious matter. It is the sort of thing which is easy to effect and difficult to detect.

We could not possibly reach the view that the trial judge’s conclusion was not available on the evidence presented. The requirements of the regulations were met. It was a serious matter and it was clearly open for the respondent to conclude that the most severe of the available consequences should apply.

There is no basis to interfere. The appeal is dismissed. The respondent is entitled to costs.

Dated at Port Vila this 26^th day of April 2002.

Justice B. Robertson
Justice J. Von Doussa
Justice D. Fatiaki
Chief Justice V. Lunabek