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Avock v Government of the Republic of Vanuatu [2003] VUSC 105; Civil Case 140 of 2002 (19 December 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 140 of 2002.

BETWEEN:

SAMSON AVOCK
Claimant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
First Defendant

AND:

THE VANUATU JUDICIAL SERVICES COMMISSION
Second Defendant

Coram: Justice P. I. Treston

Mr. Toa for Claimant
Mr. Edwards and Mr. Gilu for Defendants

Date of Hearing: 1 December 2003

JUDGMENT

CLAIM

In an amended statement of claim dated 28 January 2003, the Claimant has sued the First and Second Defendants for alleged unlawful termination of his employment as Sheriff of the Supreme Court. It was alleged that he had commenced employment with the Courts as a clerk in 1980 and had been promoted to the position of Court Sheriff on 1 November 1995 and that his employment was unlawfully terminated on 25 June 2001 by the Second Defendant acting as a servant or agent of the First Defendant.

It was alleged that the Claimant was not given a fair hearing and that the Defendants neglected to provide an impartial tribunal to hear his case and that the Defendants breached the rules of natural justice in unspecified ways.

It was alleged that the Claimant had suffered damages and/or loss of three months wages in lieu of notice, loss of severance pay and other hardship suffered as a consequence of the unlawful termination of his employment. It was further alleged that Claimant had suffered loss of school fees and general damages as a result of publication and press release of the unjustified dismissal in the newspaper and on radio Vanuatu and that general damages and/or loss should be paid for emotional pain and anxiety, embarrassment and shame and damage to reputation. No particulars were pleaded in relation to those last three matters.

The total amount claimed was VT18, 752, 553.

The Defendants in a defence dated 4 February 2003 contended that the Second Defendant, The Vanuatu Judicial Services Commission, was not a legal entirety capable of being sued and was part of the First Defendant, The Government of the Republic of Vanuatu.

The Defendant admitted the employment of the Claimant but contended that he was dismissed after a disciplinary hearing with the Judicial Services Commission on the grounds of serious misconduct. The Defendants denied the allegation that the dismissal was unlawful and stated that the Claimant was given an adequate opportunity to answer the charges, was represented by Counsel and that the decision of the Judicial Services Commission was objective, unanimous, and justified. The Defendants denied that the Claimant's termination of employment was unjustified and as the Claimant's actions had involved serious misconduct, he was not entitled to payment in lieu of notice or severance pay.

The Defendants further denied in the event that the termination of employment was found to be unjustified that there is conjunctive relief for damages as claimed and under the Employment Act.

The Claimant filed a detailed reply to the statement of defence which was dated 9 April 2003 stating, inter alia, that the Second Defendant was just as liable as the First Defendant, that the Claimant was "not guilty" of any serious misconduct and that the Defendants had breached section 50 (4) of the Employment Act [CAP 160]. The Claimant contended that the tribunal consisting of the Second Defendant was unfairly constituted as a member of the tribunal was himself the employer and a witness against the Claimant and also a judge in the termination case against the Claimant. The Claimant contended that he only admitted that he had taken the money in response to a question from the Chief Justice not as a matter of guilt but for other reasons.

Many other new factors and issues were raised in the reply as to the make up of the tribunal and as to what were described as rulings in the Court of Appeal's decision of 1 November 2002.

HISTORY OF THIS PROCEEDING

The original action for unlawful termination of employment was filed in the Supreme Court on 6 August 2002 together with a memorandum of leave to apply for judicial review. On 4 October 2002 in response to an application by the Claimant for leave to apply out of time for the judicial review and for writs of Certiorari and Mandamus his Lordship Justice Coventry refused such leave and not only dismissed the application but also the substantive action for unlawful termination of employment.

The Court of Appeal decision on 1 November 2002 considered that the appeal should be allowed and directed that "There should be a one off hearing of the employment case with no challenge being taken to all the outstanding issues being agitated and determined in it." It directed that the substantive Employment Act proceeding be reinstated and remitted to the Supreme Court for hearing in its entirety as soon as possible.

That is where the matter lies and it is now for the relief sought by the Claimant under the Employment Act to be determined.

EVIDENCE

Directions were made by this Court on 2 September 2003 under which the Claimant was to file and serve any further sworn statement(s) with annexures attached by 3pm on 9 September 2003. A full sworn statement with annexures had been earlier filed on 2 September 2003 together with a sworn statement of Shirley Obediah on 3 July 2003.

Further Orders were made as to the filing of sworn statement(s) by the Defendants and it was directed that any sworn statement(s) of the Claimant in reply were to be filed and served by 3pm on 23 September 2003. A sworn statement of the Claimant in response to the Defendants' sworn statements was filed on 6 November 2003 together with an additional sworn statement of the Claimant on November 2003. Leave had been granted to apply for any further trial directions by 3pm on 10 October 2002 but no application was received from the applicant for late filing of further statements. The Defendants, quite rightly in my view, objected to these matters being considered first because the Claimant's later sworn statement was hearsay and second because the original sworn statement in reply was far too late. I agreed with that. (see Rule 11.3 (1) of the Civil Procedure Rules No. 49 of 2002)

The matter was then determined on the Claimant's sworn statement of 2 September 2003.

Before the sworn statement was produced by the Claimant the Defence objected to certain portion of it on basis that paragraphs 11 and the majority of paragraph 37 were hearsay. In addition it was submitted that paragraphs 39 to 50 were not relevant for a consideration of lawful termination of a contract of employment. I ruled that indeed matter of hearsay could not be considered.

In the statement itself the Claimant recited his period of employment between 1990 - 1999 some as Sheriff of the Supreme Court of the Republic of Vanuatu. He said that in about December 1998 he was on tour with Magistrate Steve Bani, for two weeks in the Tongoa and Shepherds group of islands and prior to leaving for that circuit a motor vehicle, a Daihatsu Charade Registration no. 581, which had been earlier seized pursuant to a certain Writ of Execution in the Magistrates Courts, was sold for tender for VT100, 000 pursuant to a tender advertisement.

The Claimant said that the successful tenderer paid him the tender price of a VT100, 000 at 4pm on the Friday prior to leaving for the Court circuit. He said that the money was in an envelop and he remembered counting it to confirm the correct amount and that as Ms. Shirley Obediah held the key to the Court safe he gave her the envelope with the money in it to deposit it into the safe until he returned from the circuit to account for the sale of the vehicle to the Chief Registrar, Mrs. Naviti. He returned to Port Vila from the Court circuit. He was due to travel to his home island of Paama. He was in a rush and returned to Court only to drop off the files from the Court circuit. He did not check if the money was still inside the envelope. When he left work he went to withdraw some money at the NBV bank to shop for supplies to take with him and his family to Paama and to pay for his passage. He said that he remained on the island from December 1998 to February 1999. When he resumed his duties he said that when he checked the Court safe the contents of the envelope which had been given to Ms. Obediah were not there. The envelop was there but it was empty.

When questioned by the Chief Registrar, he said that he had used the money and did not want others to be accused of stealing it. He said that he felt that he had to take responsibility for it so he could avoid anyone getting into trouble by paying the money back directly through his wages. He was concerned that Ms. Wilson and Ms. Obediah would lose their jobs. Thereafter he said that the acting Chief Justice called him into his office. He admitted to the acting Chief Justice that what he had told the Registrar was true and suggested to the Acting Chief Justice that he could pay the money back. Thereafter the Claimant said that he received a suspension letter from the Acting Chief Justice on 23 March 1999. He said that he appeared before the Supreme Court in Port Vila where his criminal case was dismissed and on 25 July 2001 he appeared before the Judicial Services Commission for a disciplinary hearing for the alleged misappropriation of the VT100, 000. He produced a copy of the minutes of the Judicial Services meeting and said that during the hearing the Acting Chief Justice questioned him about what the Claimant had told him. At that stage he denied the allegations against him and said that he felt harshly done by because he had admitted the misappropriation in the first place to try to protect his colleagues with a view to paying back the money now he was faced with losing his job before a tribunal that did not appear fair to him.

The Claimant said that on 12 July 2001 he received a letter from the Chairman of the Judicial Services Commission advising him that, following the disciplinary hearing, the Commission had resolved to dismiss him from his position. He produced a copy of the letter of dismissal.

The remaining parts of the Claimant's statement to which the Defence objected concerned other complaints made against him by the Chief Registrar, and his being placed on a redundancy list. The Claimant claimed that his dismissal was not just and that he was not given a fair hearing, and that the panel had pre-judged him. He said chances of finding future employment in other areas of the Public Service was also severely diminished, his reputation needed to be restored and that reporting by the media had made his position difficult and that public scrutiny had caused hem severe embarrassment and endless shame.

Under cross-examination the Claimant conceded that he had been in the judicial system for quite some time and knew how it worked. He said that he knew that if he sold a vehicle, he had to account for the money obtained from the sale and that the Chief Registrar was the person to whom he should account. He conceded that he had written a note to the Chief Registrar concerning the money saying so that he had used it but he would come and see her after 4.30pm on that date. He conceded that it was only at the Judicial Services Commission hearing that he said that he told the Registrar that he had given money to Ms. Obediah. He agreed he was represented by a lawyer at the Judicial Services Commission hearing but did not bring Ms. Obediah to that hearing because he was not told that he could bring witnesses. He said that he had not told anyone else that he had not stolen the money prior to that hearing. In re-examination said that he had only agreed that he had stolen the money and used it because he did not want to spoil the reputation of other officers.

The defence objected to the sworn statement of Shirley Obediah being admitted in evidence on the grounds that it was irrelevant. It was submitted that the issue for the Court to determine was whether or not the dismissal was unjustified or not, and that must be looked at by the light of the evidence that was available to the Commission at the time of its hearing. I ruled that the statement was indeed inadmissible as it went to the merits of whether or not the Claimant did or did not take the money. I found that it was not relevant to the question of whether the process of the dismissal was flawed or not nor as to whether or not the Claimant had been given ample option to be heard. I held that it was inadmissible for the purposes of this claim because the evidence could have been adduced at the dismissal hearing but had not been.

In view of the way that the trial had proceeded, although the defence had filed various sworn statements in accordance with the directions to which I have already referred, the defence elected to adduce no evidence but to rely upon submissions.

SUBMISSIONS

The Claimant in submissions conceded that there had been no proof to substantiate the Claimant's actual salary at the time of the alleged unlawful dismissal. Counsel conceded that no monthly salary had been detailed in paragraph 5 of the amended statement of claim, and although he submitted that the amount could perhaps be inferred from paragraph 7 (b) there had been no proof of it in the sworn statement to substantiate any figure of his current salary date of termination of his employment.

Counsel also conceded that there had been no particulars pleaded as to any breach of the rules of natural justice nor any evidence given to substantiate such a breach (see paragraph 6 (b) ).

Counsel for the Claimant also conceded that no proof had been offered to substantiate allegations of loss of school fees and hardship suffered as alleged in paragraph 8 of the amended statement of claim.

Counsel also conceded that no proof had been offered to substantiate loses as alleged in paragraph 9 of the statement of claim, and no evidence had been given to substantiate the figures alleged in that paragraph which totalled VT7, 000, 000.

Counsel also conceded that no particulars had been alleged as to the allegation to damage to reputation in paragraph 9 (c) of the amended statement of claim and that no proof had been adduced to justify the figures claimed.

On behalf of the Defendants, it was submitted that the proper Defendant was the Government of Vanuatu and that the Second Defendant, the Judicial Services Commission, was simply an arm of the Government and was not an entity which could be sued separately.

It was further submitted that the Claimant, in seeking damages for unjustified dismissal, must establish that, as an employee, he had not been given an adequate opportunity to answer any charges made against him in terms section 50 (4) of the Employment Act. It was submitted that the questions to be decided by the Court were:-

(1) Did the Claimant receive an adequate opportunity to answer the charges against him? and,

(2) If he did receive an adequate opportunity to answer the charges, was a decision to determinate him otherwise unjustified? and,

(3) If the decision to determinate the Claimant's employment was unjustified and what damages was he entitled to?

The Defendants submitted that the Claimant had had a more than reasonable and adequate opportunity to answer the charges against him, first to the Chief Registrar, second to the acting Chief Justice and third to the Commission itself.

It was submitted that the dismissal of the Claimant was otherwise justified first, because the position of Sheriff demands trust and if the Claimant had indeed appropriated the money that was serious misconduct justifying the dismissal and second, even if he had not misappropriated the money, he had lied on two occasions that is first to the Chief Registrar and second to the acting Chief Justice which was inconsistent with his holding such an office involving a position of trust.

In addition, the Defendant submitted that the Claimant had failed to lead any evidence to prove he had suffered any damage and on that basis alone his claim should be dismissed.

The Defendants also submitted that dismissal for serious misconduct did not involve any payment of compensation pursuant to the Employment Act.

LAW

This is a civil case where the Claimant must establish the allegations on the balance of probabilities.

Section 50 of the Employment Act deals with the question of dismissal of an employee for serious misconduct. The Section provides as follows:-

"SERIOUS MISCONDUCT

(1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.

(2) None of the following acts shall be deemed to constitute misconduct by an employee -

(a) trade union membership or participation in trade union activities outside working hours, or with the employer's consent, during the working hours;

(b) seeking office as, or acting in the capacity of, an employee' representative;

(c) the making in good faith of a complaint or taking part in any proceedings against an employer.

(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employer shall be deemed to have waived his rights to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct."

Under Section 55 (2) it is provided that an employee shall not be entitled to severance allowance if he is dismissed for serious misconduct as provided in Section 50.

FINDINGS

I am of the view that this Claimant has failed to prove his claim on the balance of probabilities. Not only has there been a failure to adduce evidence as to such a basic element as the amount of his salary at the time of the alleged unjustified dismissal but also there has been total failure to satisfy the Court to the requisite standard that he was unjustifiably dismissed. The facts from his own evidence are totally against him. It is clear that VT100, 000 which he was directly responsible for as Sheriff went missing and on two occasions first, to the Chief Registrar and second to the acting Chief Justice the Claimant admitted that he had used the money. As far as the Chief Registrar was concerned his initial admission in this regard, as he said under cross-examination, was in writing and was not a response to direct questioning. Even his verbal admission to the Chief Registrar was not in response to any accusations but was simply an enquiry about the money from the sale of the vehicle. In addition, when further questioned by the acting Chief Justice, the Claimant confirmed that what he had told the Chief Registrar was true and it was only, in the words of the Court of Appeal, "when he later realized the consequences of doing this he wanted to recant and to tell the true story". The Court of Appeal said "On its face that all appears somewhat unlikely for a man who has been employed in the Court system for a substantial number of years ..."

His complaint about the role of the acting Chief Justice in interviewing him, suspending him and then being part of a tribunal in hearing his case defies common sense. His only real evidence about that aspect was that he said that during the hearing the acting Chief Justice while sitting as a decision-maker questioned him about what the Claimant had said to the acting Chief Justice. That was really a non-issue because the Claimant had never denied that he had admitted to the acting Chief Justice that he had told the Chief Registrar that he had used the money. That is not a matter of contention or dispute and, as the defence has submitted, any other employment situation employer, in the position of the acting Chief Justice, would hear such an admission and on that basis would terminate the employment of an employee who had seriously misconducted him or herself. Usually an employer acts as investigator, judge and jury and terminator, as it were.

There could be no question that misappropriating VT100, 000 is serious misconduct and equally telling lies to the Chief Registrar and to the acting Chief Justice, in the context of a position of trust such as Sheriff, is also a matter of serious misconduct and grounds for justified dismissal of the Claimant's employment. Effectively, then, the Defendant is between a rock and a hard place because, even if it were found by this Court that his dismissal on the grounds of the misappropriation was unjustified, he could certainly have been dismissed on the grounds of twice lying to his superiors. Of course the process of his dismissal must not be flawed.

Accepting all that, however, I am not satisfied that the Claimant has alleged or proved that his treatment by the Second Defendant was unfair. In terms of section 50 (4) of the Employment Act the Claimant was given more than adequate opportunity to answer charge made against him first to the Chief Registrar, second to the acting Chief Justice and finally to the Commission. At the time of that last hearing it was not surprising that his employment was terminated. He then sought to resile from his earlier admissions and did not, at that stage, adduce any evidence that would have substantiated his version of events. He was represented by counsel, he and his counsel elected to call no other evidence and in those circumstances this Court cannot conclude that the tribunal did not act fairly and impartially. I find in terms of legislation that the Claimant was involved one way or the other in a case of serious misconduct and that he was given adequate opportunity to answer the charge made against him and that his dismissal was certainly justified. I find that, in terms of the legislation, the Defendant could not in good faith have been expected to take any other course.

CONCLUSION

It follows from that that the Claimant was properly dismissed without notice and was not entitled to compensation in lieu of notice and was not entitle to severance by virtue of the provisions of Section 50 (1) and Section 55 (2) of the Employment Act.

Having made that finding it is clear that the Claimant is not entitled to other damages which, in any event, he has totally failed to prove on the balance of probabilities.

For completeness, I also find that the only proper Defendant was the First Defendant and that the Second Defendant was always acting, as alleged, an agent of the First Defendant and was not an entity which was capable of being sued and was simply acting as an arm of the First Defendant and part of it.

JUDGMENT

I order that the Second Defendant be dismissed as a party and judgment is entered for the First Defendant against the Claimant.

I award costs to the First Defendant against the Claimant at the standard rate as agreed or as determined by the Court and a hearing for that is set for Wednesday 4 February 2004 at 8.30am.

Dated AT PORT VILA, this 19^th day of December 2003

BY THE COURT

P. I. TRESTON
Judge