Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Bebe v Telecom Fji Ltd [2007] FJHC 22; HBC494.2002 (17 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 494 OF 2002

BETWEEN:

JONE BEBE
PLAINTIFF

AND:

TELECOM FIJI LIMITED
DEFENDANT

Mr. R. Matebalavu for the Plaintiff
Ms A. Neelta for the Defendant

Date of Hearing: 7th and 8th June 2007
2nd and 3rd August 2007

Date of Judgment: 17th August 2007

JUDGMENT

BACKGROUND:

Jone Bebe was an employee of Telecom in the year 2000. He was a Service Engineer Radio and Transmission. On 18th August 2000 he was summarily dismissed. The reason for dismissal was that Bebe had deliberately sabotaged and damaged Telecom international circuit on 19th May 2000 which was the day of the 2000 coup. This alleged act of the plaintiff is said to have resulted in disruption of Telecom international outbound and inbound services thereby causing losses to Telecom. The disruption had lasted seven hours. The plaintiff is claiming damages for unlawful dismissal while the defendant has counterclaimed for loss of business in the sum of $125,000.00.

ISSUES:

The Pre-trial Conference Minutes set out four issues. I add one more – namely (3) to that list. I shall deal with the issues in following order:

(1) whether the plaintiff was lawfully terminated after being provided proper hearing process.

(2) whether the plaintiff sabotaged the defendant’s international circuits thereby causing disruption to the services.

(3) whether General Manager Network Engineering had authority to dismiss the plaintiff.

(4) Is the defendant liable to the plaintiff in damages and if so, the quantum.

(5) Is the plaintiff liable to the defendant for losses arising out of the disruption?

Issue 1 - Whether Bebe had been lawfully terminated:

There is no dispute that Bebe was a member of the Union. It is also not in dispute that the Fiji Posts & Telecommunications Corporate Instructions Manual II which is Exhibit 2 and the Recognition Agreement dated 22nd December 1994 Exhibit 3 formed part of Bebe’s terms of employment. These two documents define rights of the employer to dismiss and the circumstances in which it can dismiss an employee.

Clause 23.3 gives the company power of summary dismissal. Clause 51 provides that gross misconduct by an employee can result in a summary dismissal. It also states that if an employee is charged for a serious criminal offence, then an employee can be suspended without pay pending finalization of the case. This provision provides for six instances when an employee may be liable to summary dismissal.

Clause 51 reads:

"GROSS MISCONDUCT SUBJECT TO SUMMARY DISMISSAL

If in the opinion of the Managing Director, an employee has committed an act of gross misconduct or charged with a serious criminal offence, the employee may be suspended immediately without pay pending the finalization of the case and liable to summary dismissal following an investigation and confirmation of the offence. For the purpose of this paragraph, an employee shall be subject to summary dismissal in the following circumstances:

(a) where the employee is found guilty of a serious criminal offence or imprisoned under any law;

(b) where the employee is guilty of misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of service;

(c) for lack of skills and knowledge which the employee expressly or by implication warrants himself to possess;

(d) for habitual or substantial neglect of his duties;

(e) for willful disobedience of lawful orders and instructions given by his immediate Supervisor;

(f) for habitual absence from work without the prior permission of the Section Supervisor or Manager and without other reasonable excuse."

It is provision (b) which is of relevance to this case. The company alleges there is misconduct on part of Bebe.

Clause 51 envisages two situations in which an employee may be dismissed. First is if he is charged by police for a serious criminal offence and is convicted for that offence by a court of law. Secondly if he has committed an act of gross misconduct, and upon investigation it is found that he committed that act then he can be summarily dismissed. In the latter case, it is the company which carries out its own internal investigations.

The Recognition Agreement in Part II Clause 2.1 recognizes that the company has certain rights which are not subject of negotiations with the Union. The relevant provision being 2.1(e). This provision provides that appointment, transfer, disruption and termination of employment of employees is not subject of negotiations unless the Trade Union can show that relevant procedures were not followed. Bebe alleges that the relevant procedures were not followed and therefore his dismissal was improper.

The course of investigation:

Having conducted an internal investigation, the Chief Executive Officer wrote to Jone Bebe on 24th May 2000 and alleged that Bebe had some involvement in the outages to international circuits on 19th May. He sought an explanation of his actions, activities and movements on 19th May.

The next day Bebe gave a written explanation. The explanation is contained in plaintiff’s exhibit 9. If I may say so, that except for one final short paragraph, the rest of the letter is irrelevant. It talks of past failures and shortcomings of management in not listening to him in 1996. Regarding his movement on 19th May he explained that he had left Ganilau House at about 10.00 a.m. and did not return as he was locked out. Not satisfied with the explanation, the next step was the laying of four charges on 6th July 2000. The charges sheet is three pages long. It first sets out the findings of investigations and then lays the charges. It explains what caused the disruption and that he was the only person in the Transmission room at the time of disruption. Bebe again gave a written explanation to the four charges. It was a significantly longer explanation than the previous one.

There was no oral hearing held before Bebe was dismissed. Therefore there was no cross-examination of any witness including those who testified in court in these proceedings. It is in fact admitted by both parties that the circuits were damaged. No one is alleging some mechanical failure. The defendant in his responses had stated that the alarm systems were not working for a month and that he was working on it. Seru however stated that there are two separate alarm systems – one for national and one for international. He explained that work was being done on national radio transmission.

Seru in cross-examination stated that Bebe was interviewed face to face. That interview however was not shown to Bebe before dismissal. Other staff were also interviewed but again their statements were not shown to Bebe.

Bebe is not suggesting that the system failed because of some internal mechanical or electronic fault. In fact Seru stated that investigation found that lines had been swapped and it could only be done by someone who had the expertise about such system. In short disruption was due to human intervention. Bebe was one of those persons who possessed such expertise.

Given that the plaintiff was not raising technical defect as to cause of failure, the only significant issue was who was in the Transmission room at 11.03 a.m. and who had swapped lines. In such circumstances was it necessary to have a full scale enquiry like a trial in court as the plaintiff suggests?

The nature and extent of an enquiry depends on circumstances of each case. The allegation of sabotage is a serious allegation and the consequences are also serious in that the plaintiff would end up paying substantial sum of money to the defendant for loss of business. Standing alone these two factors would suggest that a more open enquiry was perhaps warranted. However, the matter was to be looked at in its entirety. The only effective defence the plaintiff had set up was an alibi. That would have meant the issue involved credibility as to whom to believe among various witnesses including the plaintiff.

The plaintiff could have brought the Union Secretary with whom he says he took a ride to Knolly Street. He has not done so even in these proceedings.

The plaintiff as one can see was given at least two opportunities to explain his conduct. The first one prior to charges being laid and again one after charges were laid. He did give his explanations. The employer had assigned two General Managers to conduct the investigations. They had interviewed employees who they believed knew and understood something about the problem.

Clause 51 refers to "investigation and confirmation" of the offence. Investigation necessarily refers to an internal investigation not by a tribunal. It is for the employer to decide how it is going to conduct the enquiry and the form the enquiry would take. There is no entitlement as of right by an employee to have an adversarial form of enquiry normally conducted in courts with all parties being present and every witness being cross-examined. Such an approach would chew up a lot of valuable time in large organizations if every disciplinary offence were investigated in this manner. In adversarial procedure, a lot of allegations are made which persons can take to heart and nurse a grudge about such allegations. It could result in friction between employees with the disciplined employee on one hand and those testifying against him on the other, not a conducive atmosphere in a workplace where team work is essential. The manual does not mandate an adversarial hearing. All the employer needed to do was to conduct an enquiry sufficient to satisfy itself as to whether or not its preliminary suspicions were well founded or not: Awadh Narayan Singh v. Fiji Posts & Telecommunications Limited – HBC 210 of 1994. In this case Justice Pathik considered the extent of investigation and factors to be considered in such an enquiry. I agree with the conclusions reached by Justice Pathik.

I am of the view that the nature of the enquiry conducted was sufficient and adequate due process of investigation was provided to the plaintiff.

Issue 2 - Whether the plaintiff sabotaged the international circuits:

The plaintiff is a very senior technical officer radio and transmission. He joined Telecom in 1989 from the time of formation of Telecom. Prior to that he worked for Posts & Telegraph Department since 1977 since when Sakeasi Seru the General Manager of Telecom knew him. Sakeasi Seru is the defendant’s first witness. He is the one who signed the letter of dismissal dated 18th August 2000.

It is for the defendant to show on balance of probability that the plaintiff damaged the circuits. Mere suspicion is not enough to prove that. The plaintiff up to now has not been charged by the police for damaging property. No one saw him actually swap the cables.

The Transmission equipment is in the Ganilau House. Telecom uses Fintel services for overseas calls. Fintel’s equipment is located in Vatuwaqa. In between the two is an optical fibre link cable made of glass. The terminating point of fibre link is on the third floor of Ganilau House. The damaged optic fibre cable was located on the third floor of the Ganilau House where the transmission room is. The Network Management Centre is located on the second floor of the Ganilau House. This is where the alarm system is located.

Judging by the time the alarm system went on, Seru concluded that the act of sabotage occurred at 11.03 a.m. He also stated that prior to fault occurring, there were three employees in the transmission room namely Bebe, Loraisio and Baleivulaga. According to his investigations, including enquiries from Loraisio and Baleivulaga, revealed that these two had left the transmission room before the fault occurred. Hence only Bebe was left in the transmission room after they left.

Jone Bebe denied being in the Transmission room at the material time. He had denied that during the investigation in the year 2000 as well. His version in court is that sometimes between 10.00 a.m. to 11.00 a.m. he took a break and probably after 10.30 a.m. after one of his colleagues Motufaga Fatiaki had reached Navua station. He went to watch the Taukei March which took place that day. He cannot recall exact time of the march.

He further said that when he returned from the march, he was locked out of the Transmission room by the security on instructions of the Chief Executive Officer. In a letter written by Bebe on 24th May 2000 to the Chief Executive Officer he stated that he went down to the front of the Ganilau House to watch the march. He returned to go to the PLM room but was denied entry back by the security as nobody could enter the Ganilau House. According to Seru the company had not given any instructions to the security to restrict entry of persons into Ganilau House.

DW4 FATIAKI MOTUFAGA is a Telecom Engineer. He was based at Level 3 Ganilau House but his work also caused him to go to other stations in the Central and Eastern Division. On 19th May 2000 he went to Navua station to work on Microwave radio alarm. To carry out this work he had to be in contact with stations in Suva, Lautoka and South Ridge. In each of these stations an officer was manning the post. Jone Bebe was at Level 3 Ganilau House in Suva. At 10.45 a.m. at the suggestion of Penisoni who was based at Lautoka they took morning tea break.

This meant Motufaga’s last communication with Jone Bebe was at 10.45 a.m. Jone Bebe would be at Level 3 then. Motufaga returned from the break, ten minutes later and then there was no response from Level 3.

About 12.30 p.m. he was asked by Mesaki Tunidau to return to Suva as the international lines had gone down. He returned and was asked to assist in locating the fault. Motufaga assisted by other technicians was able to locate the problem to swapping of optic fibre cables at Level 3. This he said could only be done by human intervention.

The evidence shows and I accept that the international communications broke down on 19th May 2000 due to optic fibre cables being swapped at Level 3 of Ganilau House. I also find that the disruption commenced at 11.03 a.m. and lasted till 6.00 p.m. The swapping of cable could only be done by someone who had knowledge of the system. There were only limited number of persons who had this knowledge. According to Seru, Baleivulaga, Loraisio Salabala and Jone Bebe had the necessary expertise.

The plaintiff himself in his evidence says he was at Level 3 in the morning but left sometime between 10.00 a.m. and 11.00 a.m. Motufaga’s evidence which I have no reason to doubt still had the plaintiff in the Level 3 at 10.45 a.m. The plaintiff says he went out to watch the march but was denied entry back to the building. In cross examination he stated that he was not aware of sabotage of optical fibre cables on 19th but only became aware when he was charged forty-eight days later.

Motufaga told the court that he while trying to restore communications at Level 3, he received a call from Jone Bebe telling him not to attempt to restore the system and to put out the links to the West.

Bebe was superior to Motufaga. He may have thought that Motufaga in the normal course of employment would obey his orders. Motufaga would in addition be familiar with Bebe’s voice on phone having worked together for so long. Motufaga readily conceded that it would have been better if this conversation had been tape recorded but he had no tape recorder with him. Nor could he have known in advance that this unusual request would be made so he could keep a tape recorder at hand.

Motufaga had the moral fibre not to listen to his superior and instead went down to Level 2 and relayed the story to Seru. Seru also confirmed that Motufaga told him this and he sent two staff with Motufaga just to reassure Motufaga.

Motufaga gave his evidence in a calm coherent and assured manner despite being put through some searching cross examination.

I find that this telephone conversation did take place. By itself it may not be damaging but the suggestion came from a senior employee. If as the plaintiff said in his evidence that he was not ware of the disruption till forty-eight days later, how was he able on this day to tell Motufaga not to restore the links. This suggestion could only be made by someone who knew that the links were down and who wanted the links to remain unrestored and wanting the keys to the transmission room to be brought to him in the Union Office so others who may be minded to fix the problems would not gain access to the transmission room.

There is no direct evidence of any one seeing Bebe swap the cables but the circumstantial evidence and evidence considered in totality points compellingly in his direction. The fact that the police have not charged him is neither here nor there. Police might have considered that there was no evidence beyond reasonable doubt. I am of the view that it was Bebe who after swapping cables left Ganilau House did not return of his own volition to work that day. Other workers including Motufaga were able to gain access. Seru also said there were no instructions given to the security to deny access to staff.

In his first letter of explanation regarding his movements the plaintiff stated that "At about 10.00 a.m. I went down to the front of Ganilau House to watch the march made by the Taukei and Nationalist. After the march I was denied entry back to the exchange by the security". He again gave the same time "about 10.00 a.m." when responding to the four charges. His story in short was that he was nowhere present in the Ganilau House from about 10.00 a.m. Motufaga says he spoke to the plaintiff about 10.45 a.m.

Sakeasi Seru who is the General Manager Network Engineering and based at Level 7 of Ganilau House tried to make an international call and could not get through on 19th May. He came down to the second floor to investigate. He stated he met Jone Bebe at the national centre and told him to go to Transmission room to the third floor to restore the service. Therefore he placed Jone Bebe right inside the Ganilau House after the failure. I accept Seru’s evidence on this aspect.

Here was a senior technical officer Radio and Transmission, an officer of long standing, whose duty was to maintain communication links. Provision of communication links to its clients is central to defendant’s business. A staff who tries to interfere with the system in the way the plaintiff allegedly did clearly undermines the business. It is incompatible with the duties of the servant. Accordingly the defendant was reasonable in taking the view that such conduct justified summary dismissal. Bebe’s conduct was inconsistent with fulfillment of his duties as a technician.

The real legal question, regardless of the actual name an employer put to its justification and regardless of whether any dishonesty was involved, is whether the employee’s actual misconduct was of such a grave and weighty character as to undermine the relationship of trust and confidence which is central to the employer-employee relationship: Sinclair v. Neighbour – 1967 2 QB 279. Sachs LJ at p. 289 stated

"It is well established that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards the master but also is inconsistent with the continuance of confidence between them".

Issue 3 - Whether General Manager Network Engineering had authority
to dismiss?

The plaintiff submits that the letter of termination was not signed by the Managing Director as required by Clause 51 of the Manual and therefore the alleged termination is null and void. Firstly the plaintiff himself has acted upon it and treated it as having brought his employment at an end. Secondly the word Managing Director is defined in the manual as the Managing Director of the Company or any employee properly authorized to act for him. Evidence for the defendant on this effect was given by Winston Thompson, retired Chief Executive Officer Telecom. He stated that he had appointed Sakeasi Seru as the General Manager Network Engineering on 13th July 2000 as there was a lot of racial animosity since 19th May 2000 the day of coup against Pratap Singh.

Seru was appointed to diffuse any situation. He said the General Managers had the authority to dismiss. He referred to plaintiff’s Exhibit 6 to lend support to his view. It is dated 29th October 2001. Hence it came after the termination letter. However he explained the purpose of this circular was to delineate financial limits of various persons. Other powers already existed and were just brought down from earlier delegation. Thirdly Thompson explained there was provision for appeal to Chief Executive Officer. As such he thought it would be unfair of the Managing Director to dismiss and then sit in appeal, in case there is reference to the Managing Director of an unresolved grievance. I note that under paragraphs 3.8.4 of the Manual, unresolved disputes may be referred to the Managing Director that is if officers below him are unable to resolve matters or one is dissatisfied with a decision. Accordingly it would be unwise of him to sit on investigations, make decisions to terminate an employee and then sit as an appellate authority on his own decision. Hence delegation of power to dismiss makes good sense.

I accept the explanation given by Winston Thompson and find that Seru had been properly delegated powers of dismissal. Seru had the power to as Manager Network Engineering to dismiss an employee. This ground therefore fails.

CONCLUSION:

In conclusion I hold that the manner of enquiry as adopted by the defendant was adequate in the circumstances of this case; I also hold Jone Bebe being responsible for the swapping of cables and that his employment was terminated by Sakeasi Seru as properly authorized. The action of the plaintiff is dismissed.

As far as the counterclaim is concerned, the defendant had not led any acceptable satisfactory evidence as to the special damages. Ms Neelta quite properly abandoned the counterclaim in her final submission. Since the plaintiff has failed in his claim and the defendant in his counterclaim, I make no order as to costs.

Final Order:

Both the plaintiff’s claim and the defendant’s counterclaim are dismissed. There is no order as to costs.

[ Jiten Singh ]
JUDGE

At Suva
17th August 2007