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Supreme Court of Vanuatu |
IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 192 of 2002
BETWEEN:
HALING WILLIAM
Claimant
AND:
SHEFA PROVINCIAL COUNCIL
Defendant
Coram: Justice Treston
Mr. Stephens for Claimant
Mr. Boar for Defendant
Date of Hearing: 24 October 2003
JUDGMENT
CLAIM
The Claimant, in a further amended statement of claim, contended that from on or about 9 January 1995 up until May 2002 he was employed by the Defendant in various acting appointments in the post of Secretary General and Assistant Secretary General. The Claimant alleged that his employment was terminated without any valid reason being given on or about 20 May 2002 and that as a result, he suffered loss and damage. He claimed severance pay, pay in lieu of notice and annual leave entitlement in the sum of VT1, 616, 520.
He claimed in the statement of claim:-
The Defendant claimed that the Claimant's employment was terminated for gross misconduct and that he was not entitled to the amounts claimed. The Defendant counterclaimed for unauthorized personal advances made by the Claimant to the then President of the Council during 1994 and 1996 and for personal cash advanced to the former President between 1995 and 1996 and for executing a lease agreement with the National Bank of Vanuatu in 1995 for usage of a vehicle by the then President. The Defendant also counterclaimed for items which it alleged that the Claimant had taken without the approval of the President and the Council in or about January and April 2002 by using his official capacity as assistant Secretary General for items for personal use on his home island on Epi. A counterclaim was also made against the Claimant for his rental of the Council's Nakamal which it was alleged he had failed to pay and for the use of the Council's premises for officiating at various marriage ceremonies and failing to pay the Council for his use of the premises. The Defendant sought an order that the Claimant's claim be dismissed in its entirety and for the claims as detailed above and for the costs of and incidental to the matter.
EVIDENCE
The Claimant tended two sworn statements by way of evidence in chief. The first was dated 25 November 2002 and a second was dated 14 March 2003. Effectively the Claimant said that the termination of his employment as acting Secretary General for the Defendant by letter dated 20 May 2002 was a shock and a surprise to him. The letter was as follows:-
"SHEFA PROVINCIAL COUNCIL
PRIVATE MAIL BAG 078
PORT VILA
VANUATU
20th May, 2002
From: Councillor Jack John KALOTITI - President
To: Mr. William HALLING
Subject: Termination of Service
Dear Mr. HALLING,
Mi writem leta ia ikam blong informem you long Full Council decision long subject ia antap folem Staff Regulation.
Disison blong Ful Kaosel emi beis long ol valid risons ia:
Follem kopi blong leta ia - Mi stap informem ofis blong Akaotan blong preparem Peimen blong ol likol entaetolmen blong yu. Emia emi kalkiulesen blong liko entaetolmes ia.
Vt 95, 200 x 3..............................Vt 285, 000
Vt 4, 327/day x 15 days..................Vt 259, 620
______________________________________________
Decision blong Full Council ia ikam efectif bifor 11.30am long tede Mande namba 20 Mei, 2002.
Kaonsel I stap givim yu 1 manis blong veiketem haos blong Kaonsel mo riten ol keys wetem eni nara properti blong kaonsel long posession blong yu.
Long bihaf blong Kaonsel, Mi olsem President istap thankem yu long ol services blong yu we renderem during long emploiment period we yu bin sefem kaonsel
Thankyu tumas,
"sign (& Stamped)"
Councillor Jack John KALOTITI
PRESIDENT OF SHEFA PROVINCE
CC: Department of Provincial Affairs
CC: Accountant
CC: Ag. Assistant Secretary-General "
"Translated Version in English"
SHEFA PROVINCIAL COUNCIL
PRIVATE BALI BAG 078
PORT VILA
VANUATU
I write this letter to inform you on the Full Council's decision as to the subject above in line with the Staff Regulation.
The decision of the Full Council is based on these valid reasons:
Following a copy of this letter - I hereby inform the accounts department to prepare payment on your legal entitlement. Here is the calculation of your legal entitlements............
The decision of the Full Council is effective before 11.30am on today Monday 20 May 2002.
The Counsel gives you one month to vacate the Counsel's house and to return all keys with any other properties belonging to the Counsel that is in your possession.
On behalf of the Counsel, I as President I thank you for your services that you have rendered to the Counsel during your employment.
Thank you very much".
The Claimant deposed that he had never heard of the allegations and had never been given any opportunity to answer them. He contended that the termination was in breach of the statute as he had never been suspended by the Council prior to the purported dismissal.
The Claimant contended that he never refused to carry out any instructions from this superior the then Secretary General of the Council. He referred to when he had prepared reports but never had them returned to him and how he had declined to dismiss several staff members when requested by the President because he had no power to do so. He denied having any knowledge of any account that he committed the Council to pay on his behalf between 31 January 2000 and 30 April 2002 because he was on sick leave on 27 February 2002 and received the Council's approval to go on leave without pay. He said, that it was whilst he was on sick leave that he was dismissed.
As to the Vanuatu National Provident Fund matter, he said that he met with the manager of the fund and there was an agreement that the outstanding amount would be settled by way of instalments.
He denied counter signing any cheques payable to the former President and he said he could not recall officiating at weddings on Council premises for which he was paid. Under cross-examination the Claimant stated that in Nakamal in the Council's area was run by his son according to a Council decision.
He denied signing cheques or LPO documents for ordering goods and did not concede that he ordered any goods himself.
As to the marriages he agreed that he did officiate but contended that all documents or cheques or payments were put into the accounting services of the Council.
As to paying money to the former President he said that any decision as to payment of money without the consent of the Council had been made well before he joined the Council. The Claimant denied signing cheques with the former Secretary General and former President for the President's own use.
Mr. Jack John Kalotiti, the President of the Defendant, produced a sworn statement dated 10 March 2003, and confirmed that he had been the President from 2000 until now. He said that he had noticed administrative failures and total ignorance by the Claimant in running and managing the office and that staff record and books of accounts were not properly kept nor were easy to access. He produced a copy of the Auditor General's report which indicated that the Council had failed to keep proper financial reports for some years. Mr. Kalotiti also said that it was obvious to him that the Claimant had failed to pay the Provincial staff's Vanuatu National Provident Fund payments, and made allegations about the Claimant counter signing cheques and agreements without Council or Ministers' knowledge in relation to the former President.
Mr. Kalotiti produced true copies of invoices from Port Vila Hardware Limited which, he said, indicated that the Claimant had ordered items. He said that items had been destined for use in the Provincial Centre on Epi island but that he had seen on a personal visit that items had been diverted to the Claimant for use in his own village.
Mr. Kalotiti referred to the Kava Bar operation whereunder no rental had been paid between March 1999 and April 2002. He referred to Claimant's performing of marriages within the Province without paying fees. References were also made to Magistrates' Court proceeding in relation to return property and vacation of Provincial Council's premises and outstanding rental.
Under cross examination, Mr. Kalotiti confirmed that he had signed the letter of termination of employment and that the six items had been determined at a council meeting about 14 May 2002. He did not have the minutes of that meeting. The Court heard that the Claimant had not been asked to be present at the meeting so he could answer any allegations. He said that the Council stuck to the Staff Regulations and that the decision was made by full Council. Mr. Kalotiti said that he had political power to make the decision as the Claimant was ill and was not present.
He referred to the items 1 to 6 in detail.
As to item 1 he said that the Claimant contested the General Election which he lost and then became ill and did not comply with a lot of things he was asked to do and that is why the Council took the decision to terminate his employment. He did not return to work after the election.
As to item 2, Mr. Kalotiti said something was not good so they did not talk around it but went according to the Council's decision.
As to item 3, he accepted that he personally went into files and looked at them and there was only records kept as to sick leave and the filing in general was not good.
As to item 4, Mr. Kalotiti said that the Council had faced a lot of problem resulting from poor bookkeeping and the Council still faces those problems up to now. He accepted that the Claimant was not an accountant but was assistant Secretary General.
As to item 5, Mr. Kalotiti said that there was some issue with the Speaker of Parliament about the donation of 1 ton of cement and use of a truck, which the Claimant had denied. There was reference to a man from Tongoa but that person was not present at the Council meeting.
Mr. Kalotiti conceded that before going into the meeting as President he did not discuss any of the items 1 to 6 with the Claimant and said as all Council members were political appointments and as staff were appointed by the Council it was his view that if one of his staff did not comply with what the Council said the Council would make a decision and that decision would come from the full Council. He said the Council used political ways to put the Claimant out of a job. Mr. Kalotiti said that to throw out staff from the job, Council would write a letter to the staff member and if that person did not reply they would have a Council meeting. He contended that a letter had been written to the Claimant but there was no reply. He could not produce a copy of any such letter.
The second defence witness was not available, but the Claimant accepted that his sworn statement could be tended and it was. Mr. Martin Tete said that he was currently acting as Secretary General for the Defendant and had investigated the financial affairs of the Council and said that it became obvious that the former President, with the assistance of the Claimant, had countersigned cheques payable to the former President by way of allowances. He referred to a letter written to the Commissioner of Police which in fact did not refer to the Claimant at all, and another letter which he had also written to the Police on 20 August 1996 which again did not refer to the Claimant.
SUBMISSIONS
The Claimant submitted that it was clear that at the Council meeting when the Claimant was dismissed the Council's actions were politically motivated and that appropriate procedures were not followed. No notice had been shown to have been given to him of the meeting itself. No notice had been given to the Claimant of the grounds for dismissal prior to the meeting and there had been no opportunity given to the Claimant to answer the charges made against him.
The Defendant submitted that this was effectively not an unjustifiable dismissal. The Claimant had committed such gross misconduct that he could be terminated without following any procedures. It was, the defence submitted, an employer / employee relationship properly terminated and the Claimant was not entitled to what he was seeking.
The defence submitted that the Claimant ought to repay all the money in respect of the Port Vila Hardware accounts and the Nakamal rental and for marriages conducted. It was submitted that counterclaims were properly proved and that the Claimant was only entitled up to be reimbursed to the date of termination of his employment, namely 22 May 2002.
LAW
The Claimant must prove his allegations on the balance of probabilities.
Section 50 of the Employment Act [CAP 160] states as follows:-
"MISCONDUCT OF EMPLOYEE
50. (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 employees' 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 grounds of serious misconduct unless he has given the employee adequate opportunity to answer any charge 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 right to dismiss an employee for a serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct."
It is accepted by both Counsel that the Local Government Council (Staff Regulation) Regulation No. 1 of 1994 applies. Chapter 7 provides as follows:-
"DISCIPLINE
7.1 Any officer or employee of the Council who fails to comply with the provision of Chapter 6 of these Staff Regulation shall be guilty of a disciplinary offence.
7.2 Notwithstanding the previous paragraph every officer or employee of that Council commits a disciplinary offence for the purposes of disciplinary proceedings who -
- (a) by any wilful act or omission fails to comply with the requirements of the Act or of any order hereunder or of any official instrument made under the authority of the Council or of the head of the section in which the officer or employee is employed;
- (b) in the course of his duties disobeys, disregards or makes wilful default in carrying out any lawful order or instruction given by any person having authority to give the order or instruction or by word or conduct displays insubordination;
- (c) is negligent, careless, indolent, inefficient, or incompetent in the discharge of his duties;
- (d) behaves in a manner calculated to cause unreasonable distress to other officers or to affect adversely the performances of their duties.
- (e) uses intoxicating liquors or drugs to excess or in such manner as to affect adversely the performances of his duties;
- (f) improperly uses or removes property, stores, monies, stamps, securities or negotiable instruments for the time being in his official custody or under his control, or fails to take reasonable care of any such property, stores, monies, stamps, securities or negotiable instruments;
- (g) otherwise than in the proper discharge of his duties directly or indirectly discloses or for private proposes uses any information acquired by him either in the cause of his duties or in his capacity as an officer or employee;
- (h) absents himself from his office or from his official duties during hours of duty without leave or valid excuse, or is habitually irregular in the time of his arrival or departure from his place of employment;
- (i) is guilty of any improper conduct in his official capacity, or of any other improper conduct which is likely to affect adversely the performance of his duties or is likely to bring the Council into disrepute;
- (j) is guilty of any other offence prescribed from time to time by orders of regulations made under the Act.
7.3 Where the President receives a report that an officer or employee has committed and disciplinary offence and such disciplinary offence warrant his immediate suspension from carrying out his official duties, the President may suspend the officer on half salary and shall immediately report the suspension to the Council.
- (i) The Council shall either reject or confirm the suspension.
- (ii) Where the Council rejects the suspension the officer or employee shall resume his duties.
- (iii) Where the Council confirms the suspension, the Council shall give the officer or employee adequate opportunity to answer any charges made against him.
7.4 If the Council finds that the charges do not result in disciplinary punishment or if the punishment is a warning, the officer or employee shall receive the salary withheld during his suspension.
7.5 The Council may impose any one or more of the following punishment as it shall fit:
- (a) warning;
- (b) reprimand;
- (c) suspension of increment;
- (d) demotion
- (e) temporary suspension from employment for a period not exceeding six months with any consequential loss or retirement benefits or a part thereof;
- (f) dismissal and loss of retirement benefits in whole or in part."
Section 49 of the Employment Act [CAP 160] provides as follows:-
"NOTICE OF TERMINATION OF CONTRACT
(1) A contract of employment for an unspecified period of time shall terminate on the expiry of notice given by either p[arty to the other of his intention to terminate the contract.
(2) Notice may be verbal or written, and, subject to subsection (3), may be given at any time.
(3) The length of notice to be given under subsection (1)-
- (a) where the employee has been in continuous employment with the same employer for not less than 3 years, shall be not less than three months;
- (b) in every other case-
- (i) where the employee is remunerated at intervals of not less than 14 days, shall be not less than 14 days before the end of the month in which the notice is given;
- (ii) where the employee is remunerated at intervals of less than 14 days, shall be at least equal to the interval.
(4) Notice of termination need not be given if the employer pays the employee the full remuneration for the appropriate period of notice specified in subsection (3).
Section 56 provides as follows:-
"AMOUNT OF SEVERANCE ALLOWANCE
(1) Subject to the provisions of this Part, the amount of severance allowance payable to an employee shall be calculated in accordance with subsection (2).
(2) Subject to subsection (4) the amount of severance allowance payable to an employee shall be -
- (a) for every period of 12 months-
- (i) half a month's remuneration, where the employee is remunerated at intervals of not less than 1 month;
- (ii) 15 days' remuneration, where the employee is remunerated at intervals of less than 1 month;
- (b) for every period less than 12 months, s sum equal to one-twelfth of the appropriate sum calculated under paragraph (a) multiplied by the number of months during which the employee was in continuous employment.
(3) where remuneration is fixed at a rate calculated on work done or includes any sum paid by way of commission in return for services, the remuneration shall, for the purposes of this section, be computed in the manner best calculated to give the rate at which the employee was being remunerated over a period not exceeding 12 months prior to the termination of his employment.
(4) The court shall, where it finds that the termination of the employment of an employee was unjustified, order that he be paid a sum up to 6 times the amount of severance allowance specified in subsection.
(5) Any severance allowance payable under this Act shall be paid on the termination of the employment.
(6) The court may, where it thinks fit and whether or not a claim to that effect has been made, order an employer to pay interest, at a rate not exceeding 12 per cent per annum from the date of the termination of the employment to the date of payment.
(7) For the purposes of this section the remuneration which shall be taken into account in calculating the severance allowance shall be the remuneration payable to the employee at the time of the termination of his employment.
FINDINGS
This was clearly a contract of employment for an unspecified period of time under S. 49 (above). The Claimant had been in continuous employment for not less that 3 years.
It is my view that the reasons set out in Council's letter of 20 May 2002 dismissing the Claimant are possible disciplinary offences rather than serious misconduct but in any event under both procedures an employee must be given "adequate opportunity to answer any charges made against him". The Claimant was given no notice of the meeting and was then deprived of any opportunity to answer the allegations made against him. He was not suspended either. I have no difficulty at all in finding that this dismissal was unjustified.
The Claimant is still unemployed. Under S.56 (4) the Court shall, in the case of such an unjustified termination of employment, order that he be paid a sum up to 6 times the amount of severance allowance calculated under S. 56 (2). In these circumstance I am of the view that the maximum amount of payment should be allowed under S. 56 (4) involving 6 times the amount of severance allowance specified in S. 56 (2). In my view, that is commensurate with the fact that the Claimant has remained unemployed from the date of the unjustified termination of his employment until now. That is by way of special damage (see Melcoffee Sawmill Ltd & Croucher v George CAC18/03)
As to the counterclaims made by the Defendant I am of the view that the Defendant has failed to prove these on the balance of probabilities. The defence accepted that it could not continue with the counterclaims for advances to Charley Kalmet and for Council money spent on signing a lease with National Bank of Vanuatu because those claims were statute barred by the Limitation Act No. 4 of 1991.
The counterclaim in relation to seeking an order that the Claimant refund VT2, 938, 670 being invoices from Port Vila Hardware has certainly not been proved on the balance of probabilities. The evidence in relation to those came from Mr. Kalotiti in paragraph 6 of his sworn statement, and the exhibits "D" do not, on the balance of probabilities, indicate that Mr. Haling William ordered items. The Claimant denied that in cross-examination and there is simply an inadequacy of proofs in relation to that counterclaim.
As to the counterclaim for usage of the Nakamal I accept the Claimant's evidence that that Nakamal was run by his son and that he himself has no responsibility for paying any rental to the Council.
As to the counterclaim in relation to use of Shefa Provinces premises for marriages, while that was set out in the body of the claim no figure was ever pleaded and no particulars have ever provided that the Court could possibly enter judgment for, even if it were so minded.
DECISION
I give judgment for the Claimant against the Defendant in relation to his claim on the finding that he was unjustifiably dismissed. Because of the overall circumstances and the passage of time which has passed, I am not prepared to make an order for reinstatement of the Claimant to the Shefa Provincial Council.
It flows from that decision that the Claimant must now be paid outstanding remuneration and other entitlements in relation to his dismissal on 22 May 2002.
The Claimant set out the figures he claimed in the Particular of Loss in the further amended statement of claim. Although these figures were not challenged during the hearing, the Claimant has failed to prove any outstanding leave entitlement. Equally, there is no evidence as to any deductions for outstanding VNPF contributions or advanced made to the Claimant as set out in the letter of 20 May 2002 that would justify any reduction of his claim. However, the Claimant's figures require close scrutiny because there are some arithmetical errors.
It is my view that the Claimant's correct proven entitlement is as follows:-
| Three months salary in lieu of notice VT95, 000 x 3 = VT285,000 Severance as claimed for 4 years 2 months VT47, 500 x 4 years = VT190,000 Two months = VT7,916 Severance under S. 56 (4) (see above) VT197, 916 x 2 = VT1, 187,496 ____________ VT1,670,412 =========== |
Although that seems slightly more that the amount claimed there were clear addition errors in the Particular of Loss, which actually totalled VT1, 814, 853.
Accordingly, there will be judgment for the Claimant against the Defendant for VT1,670,412 together with interest at 12 per cent per annum from the date of the termination of the employment to the date of payment (see S. 56 (6)).
As to the counterclaims, as agreed by the Defendant counterclaims 2 and 3 are struck out as been statute barred. As I have indicated above, I find that the Defendant has not proved counterclaims 4 and 5 and on those counterclaims there will be judgment for the Claimant against the Defendant.
I award costs at the standard rate to the Claimant against the Defendant, as agreed or as determined, both on the claim and the counterclaims.
Dated AT PORT VILA, this 21st day of November 2003
BY THE COURT
P. I. TRESTON
Judge
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