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Tovio v SV Mackenzie & Co Ltd [2004] WSSC 22 (23 September 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MAUGA SALA TOVIO
of Vailima
Plaintiff

AND:

S.V. MACKENZIE & CO LIMITED
a duly registered company carrying on business as wholesalers
Defendant

Counsel: Mr S Toailoa for the Plaintiff
Ms R Drake for the Defendant

Hearing Dates: 18 October 2003; 10 December 2003; 11 December 2003
Judgment: 23 September 2004

JUDGMENT OF JUSTICE VAAI

The plaintiff aged 59 commenced employment with the defendant in June 2001 as a Small Goods Supervisor in the defendant’s wholesale business. He was dismissed on Monday morning the 8th April 2002 after a heated exchange with the General Manager of the defendant over a box of cigarettes which the General Manager discovered on Saturday afternoon 6th April before closing for the week end to be lying around in the small goods area, contrary to company policy, instead of being locked away in the bond room. Both the plaintiff and his immediate supervisor were questioned by the General Manager on Monday morning and both insisted that when they left work on Saturday afternoon there were no cigarettes in the small goods area. Although the plaintiff admitted raising his voice as he argued with the General Manager he was neither rude nor disrespectful; he insisted (with the support of his immediate supervisor) that all cigarettes were locked away before they finished work on Saturday. Immediately after the cigarette fiasco the plaintiff was summoned to the General Manager’s office where he was summarily dismissed and paid one week’s salary in lieu of notice.

The plaintiff claims he was wrongfully dismissed and as the duration of his employment with the defendant was for an unspecified time he claims it was an implied term of his employment contract that it should be determinable only by reason of just cause. And at the age of 59 years when his services were severed he was fit to work for another 10 years so that he should be compensated for the loss of salary for 10 years amounting to $83,200. He also seeks general damages of $62,640 for the anxiety and distress he suffered as a consequence of the abrupt unlawful termination.

On the claim for wrongful dismissal an employee is entitled to the salary he would have received during the period of express or implied notice for termination. He cannot treat the contract as if it is still existing; he cannot say that because the contract terms have not been complied with there has been no effective dismissal; his only remedy as a general rule is to claim damages for wrongful dismissal: See Keil (Hans Joachim) v Polynesian Airlines Ltd (1980-1993) WSLR 222.

An employee who has received salary in lieu of notice will generally not be able to recover damages. What amounts to reasonable notice depends on the facts of each case amongst the matters which need to be taken into account are the status and nature of the position of the employee, responsibility which he carried and the size and importance of the employer : Brandt v Nixdorf Computer Ltd (1991) 3 NZLR 750; 759.

An employer is free to dismiss an employee on reasonable notice without any cause or grounds and without obligation to reveal or justify his reasons for termination : Keil v Polynesian Airlines Ltd; Lui Lauano v Yazaki EDS Samoa Ltd (unreported decision of Wilson J 9/8/2000).

Whether or not the contract of employment expressly provides for termination, such contracts are terminable either according to the expressed terms or by the implication of a term to the effect that the contract may be determined on reasonable notice in the absence of an expressed provision : Clark v Independent Broadcasting Co. (1974) 2 NZLR 47; Keil v Polynesian Airlines (supra).

No damages are available to compensate an employee for distress, anxiety or injured feelings resulting from the dismissal. Addis v Gramophone Co. (1909) AC 488; Brandt v Nixdorf Computer Ltd (supra); Lui Lauano v Yazaki EDS Samoa Ltd (supra).

In these proceedings, in the absence of any written contract between the plaintiff and the defendant, the employment of the plaintiff by the defendant is therefore governed by section 21 Labour and Employment Act 1972 which empowers either party at any time to give the other party notice of intention to terminate; the length of notice shall be equal to the length of the wage period; and in the absence of notice the employee shall be paid a salary which would have accrued the contract had been terminated on notice. As the plaintiff had no written contract with the defendant the length of notice required by section 21 is one week as the plaintiff was paid weekly, and as the plaintiff was paid one week’s salary in lieu of notice the defendant has therefore complied with the provisions of section 21 Labour and Employment Act. As a consequence I reject the assertion by the plaintiff that the employment of the plaintiff with the defendant was for an unspecified time and as such it was an implied term of his employment that it should be determined only by reason of just cause.

But even if it is a term of the contract of employment that the plaintiff should only be dismissed by reason of just cause, the defendant has in my view established sufficient grounds of the plaintiffs continuous poor conduct at work which would justify summary dismissal. As a small goods supervisor part of the plaintiff’s duties was to check goods going outwards onto delivery trucks and goods returned or coming inwards from the delivery trucks. Due compliance with established procedure for checking outgoing and incoming goods was necessary to prevent and to minimize pilfering of goods. Records of goods taken out and of those returned are passed on to the accounts section for processing into the defendants stock program to determine the goods which should be returned by matching the goods sold against the cash collected.

Odd human errors can be expected and can be tolerated. But when these errors persist and are traced to a particular individual than the individual, as the source of the error must vanish.

The plaintiff’s immediate supervisor gave evidence for the plaintiff and under examination in chief she conceded that the defendant’s General Manager did speak with her on past occasions concerning the plaintiff’s work performance and she in turn talked with the plaintiff. The defendant’s Financial Controller also testified for the plaintiff, and under cross examination she conceded that on numerous occasions the plaintiff neglected to comply with company procedures in relation to small goods taken out for delivery and those sold or returned by the delivery trucks. On numerous occasions the Financial Controller had to confront the plaintiff to conform the correct status of the records of the goods taken out received back or sold before the defendant’s accounts section enters the appropriate information into the stock program. Under cross examination the plaintiff himself conceded that the Financial Controller sometimes spoke to him when there was a mistake or oversight on his part in counting and checking. Although he insists he was not warned in writing or orally about being habitually careless and incompetent in performing his duties, the evidence of the plaintiff and his witnesses clearly demonstrates a worker who was virtually a liability to the defendant and whose conduct on the morning of the 8th April 2002 blew away all remnants of tolerance of the defendant’s General Manager resulting in the summary dismissal of the plaintiff. It is in these circumstances which lead me to the only conclusion that the dismissal was justified. See Laws v London Chronicle Ltd (1959) 2 All ER 285; Blyth Chemical Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66; Ida Pouono v The Corporation of Presiding Bishop to the Church of Jesus Christ of Latter Day Saints (Unreported decision of Vaai J 25/10/02).

As a consequence of my findings and determinations the plaintiffs claim must fail.

I give judgment for the defendant. The defendant is entitled to costs which I fix at $1,400.00.

JUSTICE VAAI