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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL No. ABU 0055 of 2012
(High Court Civil Action No. 29 of 2008)
BETWEEN :
RICHARD CAMERON CROSS
Appellant
AND :
SPEEDY HERO DEVELOPMENT LIMITED
Respondent
Coram : Calanchini P
Chandra JA
Almeida Guneratne JA
Counsel : Mr. I. Fa for the Appellant
Ms. M. Muir for the Respondent
Dates of Hearing : 05 and 20 February 2014
Date of Judgment : 05 March 2014
JUDGMENT
Calanchini P:
I have read the judgment of Almeida Guneratne JA and agree that the appeal should be allowed.
Chandra JA:
I agree with the reasons and conclusions of Almeida Guneratne JA.
Almeida Guneratne JA:
Background to this Appeal
[1] This is a case in which the High Court of Fiji dismissed the action of the Employee-plaintiff who alleged that his employment was unlawfully terminated by the employer-Respondent and accordingly sought reliefs as per his statement of claim.
[2] The Appellant had been employed on a contract which, in terms of the letter of offer dated 2nd July, 2007 is shown on the face of it as he having commenced work on 20th July, 2007.
[3] His employment was terminated on 3rd November 2007 summarily without notice.
Matters arising for determination in this Appeal
[4] The several matters that arise for determination in this appeal may be set out as follows:
(a) Whether the contract in question was for a fixed period or otherwise;
(b) Whether the contract in question was an oral or a written contract as envisaged in the Employment Act (Cap. 92) which was the applicable law at all times material to the action;
(c) If the termination fell outside the period of probation what procedural requirements the employer was obliged to comply with;
(d) Whether the termination itself was lawful or otherwise;
(e) Whether the Appellant was entitled to any reliefs upon the said termination;
Re: Whether the Contract in question was for a fixed period or otherwise?
[5] As evidenced by the letter of offer of employment dated 2nd July, 2007 the contract was not for a fixed term but open-ended although counsel for the Appellant sought to contend that the understanding was that it was for a three year period.
[6] I am unable to accept that position in as much as there is only the self-serving evidence of the Appellant on that.
Re: Whether the contract in question was terminated within or outside the period of probation and the Non-Issue of a letter of confirmation.
[7] Counsel for the Respondent contended that, although the letter of offer mentioned 20th July, 2007 as being the date of commencement of work, in as much as the Appellant's passport and visa showed that his date of entry to Fiji was 14th August, 2007, that latter date must be construed as the date on which he commenced work.
[8] Consequently, Counsel argued that, 3rd November, 2007 being the date the Appellant's services were summarily terminated, the termination was within the three months period of probation as provided in the letter of offer of employment dated 2nd July, 2007.
[9] The said letter of offer itself did not provide for an extension of the period of probation although the Respondent's counsel appeared to suggest that, the fact that, the Appellant was allowed to go on till November 3rd impliedly showed that the probationary period had been extended and therefore the reason why the Respondent summarily terminated his employment with a payment of a sum of $3,652.00.
[10] However, it is to be noted that the said letter of offer does not provide for such extension of the period of probation, certainly not expressly.
[11] If so, immediately one is put on enquiry as to whether that could have been done impliedly and unilaterally, when the said letter of offer which is a writing which was the best evidence on the matter contained express words to the contrary, particularly in view of the fact that the said letter provided for review periods once in every six months on the employee's performance.
[12] However, that would have been after the completion of the probation period of three months as stated in the said letter of offer, a factor therefore that could not have assisted the Respondent's contention in that regard.
[13] It is to be noted that, although the passport and visa theory was put forward the same had not been pursued to any logical conclusion and remained unresolved and in vacuo.
[14] The trial judge himself has not made a finding on that matter either way.
[15] In the result one has to look at the terms of the said writing viz: the letter of offer of employment dated 2nd July, 2007 which gives the date of commencement of work as 20th July, 2007.
The Law On The Matter
[16] The said letter of offer of employment dated 2nd July 2007, shows the date of commencement of work as 20th July 2007?
[17] Could the court ignore that and read 20th July as 14th August 2007?
[18] "It is not the function of the Court to ascertain the intention otherwise than the words used in a deed." Skelton v Younghouse [(1942) AC 571].
[19] The same would hold good and apply to any writing.
[20] Consequently, the date of termination admittedly being 3rd November, 2007, the said termination was clearly outside the date of the probationary period.
[21] For the aforesaid reasons, I cannot agree with the learned High Court Judge when he appears to have proceeded on the premise that, the termination had been effected within the period of probation.
The Non – Issue Of A Letter Of Confirmation
[22] Respondent's Counsel also contended that, the non-issue of a letter confirming the appellant's employment was a further indication that, he had not satisfactorily completed the period of probation.
[23] That amounts to begging the real question.
[24] Once the period of probation had lapsed (and we have held it to be so) it was not for the employee to take any initiative and procure such a letter. It was an obligation in terms of the letter of offer of employment to have issued the same. The employee's patience in waiting for it to be sent cannot be held against him.
[25] Accordingly, I hold that, the Respondent was in breach of the said term in the said letter of offer of employment in failing to issue the Appellant with a letter of confirmation upon the completion of the probationary period of three months.
[26] I now proceed on the basis that, the termination was outside the period of probation and the non issue of a letter of confirmation does not affect the Appellant's case.
What Procedural Requirements Were The Employer Obliged To Comply With?
[27] In Suva City Council v Semiti Koroi (Civil Appeal No. ABU 0001/2010), this court held that, the words "satisfactory performance" is synonymous with the term "probation" (Vide; page 8 per Chandra, J.A.)
[28] The letter of offer of employment dated 2nd July, 2007 uses the expression "satisfactory completion".
[29] I see no distinction between the expressions "satisfactory performance" and "satisfactory completion". If there is such a distinction in language, it is a distinction without a difference.
[30] Thus, for all intents and purposes, the Appellant had successfully completed his period of probation.
[31] "Even if the contractual terms could be said to have been ambiguous or admit of more than one interpretation, both equity and the principles of interpretation concur in requiring that they be interpreted "contra proferentum" against the employer and in favour of the employee" (vide: a Sri Lankan Supreme Court decision cited with approval and followed in the Suva City Council, Supra).
[32] I hold that, for the reasons adduced above, the Appellant had completed the probationary period.
[33] Given the approach I have adapted, deriving support from this Court's ruling in the Suva City Council Case (Supra), and in the light of it, it cannot be said that, the Respondent- employer had complied with the statutory requirements mandated by the Employment Act (Cap.92), the applicable law at the relevant time, in failing to give notice of termination of whatever duration as decreed in Section 24 of the said Act.
[34] In the instant case, no notice whatever was given either orally or in writing to the Appellant. He was summarily dismissed.
[35] Upon the dismissal the Appellant was paid a sum of $3,652.00 (Fijian Dollars), which would approximate to two weeks wages of the salary he was entitled to.
[36] Apparently, the Respondent had done so on the basis that, the Appellant's services had been terminated within the period of probation and therefore, he was entitled to wages up to that date.
[37] In that regard, I have already given my reasons for not accepting the Respondent's position.
Was The Contract In Question a Written Or An Oral Contract?
[38] In the course of the hearing, Court wished Appellant's Counsel to address on the question whether the contract in question was a written or an oral one as envisaged in the Employment Act (Cap.92) which was the applicable law at the relevant time.
[39] Upon Counsel's application, Court permitted him to tender a written submission limited to that question.
[40] I have gone through that submission wherein the Appellant takes up the position that, "the provisions of Sections 22 – 30 of the Employment Act do not apply to the Appellant's claim in the present case......... We submit the Appellant has a written contract, pursuant to Section 32 of the employment Act".
[41] I have examined Section 32 in the light of Section 2 of the Act and regret to say that there is nothing in that section which supports the Appellant's contention.
[42] The letter of offer dated 2nd July, 2007 no doubt provides evidence of a contract but it does not satisfy the requirements of a written contract as contemplated by Part VI of the Act read with Section 2.
[43] In this context I have also perused the Judgment of the Supreme Court in the case of Central Manufacturing Company Limited v Yashni Kant (unreported CBV 10 of 2002; 24 October 2003) which provides the answer to the issue under consideration. In any event, the said decision is binding on this court.
[44] Consequently in the facts and circumstances of this case and in the light of the Central Manufacturing Company Case, I conclude that, the contract in question was an oral contract and was not, or did not, constitute a written contract.
Was The Termination Lawful Or Unlawful?
[45] Section 28 of the employment Act (Cap.92) (hereafter referred to as the Act) decrees as follows:
"An employer shall not dismiss an employee summarily except in the following circumstances:
Section 29 of the Act states as follows:
"Where an employee is summarily dismissed for lawful cause, he shall be paid on dismissal the wages due to him up to the time of his dismissal."
[46] A perusal of the evidence as reflected in the record of the case shows that the grounds enumerated in (d) and (e) of Section 28 of the Act have no bearing on this case.
[47] In the result, only (a), (b) and (c) warrant examination.
Could The Appellant Be Said To Have Been Liable On Ground (c) Of The Act?
[48] The Appellant was the Executive Chef. There had been no complaints from the guests. There were no shortcomings in his performance of work. His past service record exemplified this. The "Wine Dinner" (the Dinner Station Menu) held in September, 2007 puts further light on that.
[49] On that score, there could not have been any adverse finding against the Appellant.
Re: Ground (a)
[50] "Misconduct" of an employee, finds several interpretations such as being drunk while in employment or being insubordinate to superiors etc.
[51] There is not an iota of evidence on any alleged "misconduct" in either a factual sense or "legal sense" on which the Appellant's conduct could have been put on issue on that score. An allegation in regard to misappropriating some food items also failed.
Re: Ground (b)
[52] The substantial complaint on the part of the employer – through its solitary witness who gave evidence – M/S Reagan– the Manager - who was the Appellant's superior officer was, that, the Appellant had been cutting food costs of the employees (the Appellant's support staff) which had led to discontent among them and therefore, was not conducive to a proper working environment.
[53] It is in evidence that, the Appellant had even discontinued the services of two employees under him which in his evidence he said was in the interests of the establishment.
[54] No action had been taken against him by the employer or by M/S Reagan in that regard as well. If at all, they had acquiesced in the appellant's initiatives taken in that regard, although I are prepared to accept that, M/S Reagan had admonished the Appellant on some occasions.
[55] Subject to that however, the discussions the Appellant had had with M/S Reagan were cordial or at least not acrimonious.
[56] And indeed, if the complaint against the Appellant was to be regarded as a serious matter then, at least it should have found its way to the Appellant's personal file, which M/S Reagan admitted in evidence had not been done.
[57] M/S Reagan however attempted to get over that matter by saying that, she had noted the Appellant's said conduct in a diary which was also not forthcoming in evidence, her explanation for that being that, given the interval ensuing from the Appellant's termination and the date of the trial, suggesting therefore that, it was not considered to be serious enough for her to preserve the same, whereas the termination was on 3rd November, 2007 and the writ of summons filed by the Appellant was on 24th January, 2008. She had been in an awful hurry to have destroyed or lose the said dairy of notes.
[58] In that regard, I am unable to agree with the trial Judge's approach in accepting M/S Reagan's evidence as being credible.
[59] The learned trial judge has also misdirected himself in reading the date of the writ of summons as 24th October, 2008. Had he gone on the correct date he may very well have taken a different view. In any event, at best all what the diary notes of the matter could have proved was that, there had been staff discontentment.
[60] There may well have been such discontentment but evidently, it had not reached such a serious level for the management to have taken disciplinary measures until the summary dismissal on 3rd November, 2007 notwithstanding the fact that, a specific procedure was provided for the same in the term of employment under the Head Disciplinary Process.
[61] Accordingly I conclude that, the termination of the Appellant's employment was not for any serious misconduct as contained in the terms of employment or on any ground envisaged in Section 28 of the Employment Act (Cap.92) and was not for any lawful cause as decreed in Section 29 thereof.
What Are The Reliefs The Appellant Is Entitled To?
[62] I have held that the contract in question is not a written contract but is an oral contract evidenced in writing by the letter of offer of employment dated 2nd July, 2007. (and we add at this point accepted on 10th July, 2007).
[63] I have also held that, the termination took place outside the period of probation and the non – issuance of a letter of confirmation outside that period does not alter that position.
[64] Upon my conclusion that, the termination was not on any ground contemplated by Section 28 of the Employment Act (Cap.92) and therefore, was not for any lawful cause as decreed in Section 29, I now have to consider what reliefs the Appellant may be entitled to, in consequence thereof.
[65] The Appellant was summarily dismissed (without any notice) with a cheque for a sum of $3,652 (Fijian dollars) enclosed in an envelope. This was evidently wages due up to the 3rd November, 2007 approximating to two weeks pay.
[66] To ascertain as to what other reliefs the Appellant may be entitled to, one has to look at the terms and conditions of the said letter of offer dated 2nd July, 2007.
[67] It is provided that,
"minimum 4 weeks' notice of termination shall be given. Should notice not be provided, either party shall forfeit four (4) weeks' pay".
[68] The Appellant was dismissed without any notice.
[69] Accordingly, he was entitled to be paid four (4) week's pay which should round up to (AUD6,916.66).
Air Fares
[70] It was not disputed that, the Appellant had not been given his air fare back to New Zealand.
[71] The letter of offer of employment provided that, "the company shall provide one return economy ticket per annum Fiji/ New Zealand/Fiji as part of the employment contract....."
[72] Accordingly, I decree that, the Appellant is entitled to receive the cost of a return air fare ticket to New Zealand which he has had to bear when returning to that country consequent to the termination of his employment in terms of paragraph 15(iii).
[73] On the facts, circumstances of this case and the conclusions I have arrived at the Appellant shall not be granted the other reliefs he has claimed.
[74] As interest was not pleaded in the Appellant's statement of claim the same will not be awarded.
The Orders of the Court are:
Hon. Justice W. Calanchini
President, Court of Appeal
Hon. Justice S. Chandra
Justice of Appeal
Hon. Justice Almeida Guneratne
Justice of Appeal
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