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Prasad v Attorney-General of Fiji [2005] FJHC 350; HBC0453.1999 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0453 OF 1999

BETWEEN:

ASHWANT PRASAD
PLAINTIFF

AND:

ATTORNEY-GENERAL OF FIJI
and TEMO VOSAKI
DEFENDANTS

Mr G P Shankar for the Plaintiff
Mr F. Abu for the Defendants

Date of Hearing: 16 August 2005
Date of Judgment: 16 September 2005

JUDGMENT OF FINNIGAN J

In this Action a dismissed employee seeks damages for unlawful and wrongful dismissal. The proceedings were issued in December 1999 and the Defendants acknowledged service in April 2000. On 18 February 2003 the Plaintiff issued a Notice of Intention to Proceed and about 6 weeks later on 24 March 2003 well out of time and without leave the Defendants filed a Statement of Defence. The case was brought forward by the Court in the General Callover in April 2005. Neither party has shown a great deal of commitment.

The Plaintiff alone gave evidence on his own behalf. No persons came forward to represent the Defendants or to give evidence on their behalf. Counsel for the Defendants relied on submissions.

The Statement of Claim pleads 3 causes of action. The first (paragraph 2) is one paragraph and amounts to a claim wrongful suspension. The second (paras 3 and 4) appear to amount to a claim of defamation. The third (paras 5 to?) are titled “Misfeasance in Public Office” at the hearing nothing much was made of this, except by Counsel for the Defendant who submitted with authorities that the claim is wrongly brought. Since the Defendants are apparently sued as a public utility corporation the Statement of Defence pleads and Counsel submitted that the Plaintiff should have proceeded by way of an application for judicial review. The authority relied in Nave –v- Principal Engineer Suva Water Supply and Another Civil Action No 431 of 2002 Judgment 31 October 2003. That authority held that a particular Originating Summons could not in its circumstances be converted into a claim for a judicial review. The present case must turn on its own circumstances and in any event I do not think it is necessary to decide the issue.

Going back to the second cause of action Counsel for the Plaintiff relied on letters written to the Plaintiff (Exhibits P1 and P3). In the first of these the Acting Divisional Engineer Western one I.T. Veitokiyaki wrote to the Plaintiff suspending him from employment in the following terms:

“On Monday 26/10/98 at 9.00pm you removed a drive shaft of a wrecked truck from PWD Waiyavi Depot and was caught by the two gatekeepers of the Depot who reported the matter to the Police.

Pending further investigations you are to be suspended from work with effect from today 27/10/98 until further notice.

You are hereby warned that if the Police investigation finds you guilty your services with PWD will be terminated and all leave due to you will be forfeited.”

The second letter, also written by an Acting Divisional Engineer Western (named A Reid) was as follows:

“I refer to my memorandum DEWCF 7/4 of 27/1098.

Our investigations confirms that you removed a drive shaft from Waiyavi Depot without permission. Accordingly, your services with PWD are terminated with effect from 27/10/98”

Counsel for the Plaintiff relied upon the existence of the letters as prove of publication and relied on the contents as defamatory in the light of the Plaintiff’s evidence.

The Plaintiff’s evidence was that he had been accused but subsequently the Police located one A J Kumar whom they accused of taking the drive shaft. He said that the Police went with Kumar to his house where he pointed out the drive shaft in his compound. He says the Police brought Kumar and the drive shaft back to the Police Station and he saw them there. He said the Police charged Kumar with theft of the drive shaft while he was there. He said they questioned Kumar who told them that he had taken it, they took his figure prints and his photograph.

I accept the submission of Defence Counsel that it is for the Plaintiff to prove his case. At the end of the day I have no sense at all that he has been defamed. From the Statement of Defence it is clear the Defendants claim they were justified in dismissing the Plaintiff because he was shown in their investigation to be the thief. Perhaps in light of the Plaintiff’s evidence they might have been claiming they could prove he was a joint thief with Kumar. I do not know. They gave no evidence and their claims are unproved. So in my opinion is the Plaintiff’s claim. He failed to prove or even to mention in his evidence that he was not what the Defendants in the two letter (above) claimed he was. This cause of action in defamation is dismissed.

I come now to the remaining cause of action. Read with the latter paragraphs in the Statement of Claim (paras 4 to 8) this amounts to a straight forward claim of wrongful dismissal. I hold that the action was properly brought by writ. In their Statement of Defence the Defendants pleaded that the Plaintiff was an “unestablished employee” and that his dismissal was “done lawfully and in accordance with the Joint Industrial Council Regulation”. This claim could not be proved and was not admitted by the Plaintiff in evidence. I have to put aside any thought that the Plaintiff should perhaps have pursued other remedies provided in the Terms and Conditions of his Employment. There is no evidence. I take him to be an employee seeking to prove unlawful dismissal. The essence of his claim is that the employer did not have grounds to dismiss him. For that it is not necessary for him to prove his innocence (which he did not even attempt to do in his evidence). What he has to show is that the grounds on which the employer relied were not good grounds and were not, as perceived by the employer, sufficient in themselves to sustain dismissal. Neither Counsel cited any authority for this proposition.

What I have before me is a clear allegation by the employer that it had suspected he was guilty of stealing a drive shaft, that it had investigated this suspected theft and had confirmed its suspicion that the Plaintiff removed a drive shaft from the depot without permission. It clearly stated in its first letter the time and date of the alleged theft and stated that the Plaintiff had been caught by the two gate keepers of the depot who reported the matter to the Police. The Plaintiff was in no doubt about the allegations which were being investigated and ultimately the reasons for his dismissals.

How was the investigation carried out? What matters were looked into? On what basis did the employer confirm that the Plaintiff removed a drive shaft without permission? I do not know. The Defendants gave no evidence.

In a case of this sort there is a departure from the principle upon which Counsel for the Defendants relied, that he who alleges must prove. The Plaintiff need only prove the dismissal and the onus then moves to the employer to show that it held adequate justification in law to dismiss. The principle really still applies in as much as it is the Defendant who has alleged lawful and rightful behaviour and thus it is the Defendant who must prove that.

That being so, it is not necessary for a Plaintiff in cases of this sort to proclaim his innocence and that omission from the evidence of the Plaintiff in this case is not fatal. It was for the Defendants to show that their action was innocent. That did not occur and I am left with the Defendants’ pleaded claims unproved and I must enter judgment for the Plaintiff.

Damages:

Exemplary damages cannot be awarded in the circumstances of this case. Although the Plaintiff did not need to prove his innocence for the case in liability, he needed strong grounds including a proven situation of bad faith conduct by the employer to make out a case for exemplary damages. That claim is dismissed.

He claims wages that have been lost from the date of his dismissal until payment. He claims also general damages. Counsel for the Defendant pointed out that lost wages are a claim in special damages and should have been proved as such. The Plaintiff merely claimed on oath that he had earned $98.00 take home pay per week and failed to produce the pay slips that he said he had received. That submission may be upheld. Nonetheless if I accept the Plaintiff’s evidence I can still make this claim the basis of an award in general damages and I propose to do that.

I bear in mind that the general purpose of a damages award for a breach of contract as occurred here is to place the injured party in the same position as if the contract had being properly performed. The Plaintiff in the present case of course had no guarantee at all that his employment would have continued from October 1998 until now. In contract he is entitled even on a wrongful dismissal only to what he would have received had he been dismissed lawfully. In this case that might have been one weeks’ wages or it might have been four weeks wages. However there are other heads of damages available to the Plaintiff. I accept for the purposes of assessing damages that the Plaintiff has been injured in his reputation with the particular effect that he has been unable to obtain employment of any kind since his dismissal because it is generally known that he was dismissed for being a thief. Since the employer did not discharge the onus of showing that it had sufficient lawful grounds to dismiss him and since the Plaintiff chose to give no evidence about any relationship between himself and the theft I am able to draw one conclusion only, that the Defendants are liable to him in damages for causing his inability to obtain employment. I therefore take as the measure of general damages the amount of money he would have earned at the rate he was earning at the time of his dismissal. The period of nearly 7 years from the dismissal until the hearing is merely a convenient measure.

In the absence of any authorities at all from Counsel I make a calculation of the lost income and by both measures I arrive at a sum in general damages of $34,000.00 I order payment by the Defendants of that amount.

In summary I make the following orders:

1. The actions in misfeasance in public office and in defamation are dismissed.
2. On the claim for wrongful dismissal I enter judgment for the Plaintiff.
3. I make one award only in damages and assess general damages at $34,000.00.
4. I award costs to the Plaintiff which I assess summarily at $2,000.00.
   

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005