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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No: HBC 208 of 1998L
BETWEEN:
MOHAMMED SAHIM RAZAK
Plaintiff
AND:
FIJI SUGAR CORPORATION LIMITED
Defendant
FINAL JUDGMENT
Judgment of: Inoke J.
Counsel Appearing: Dr M S Sahu Khan for the Plaintiff
Mr F Haniff for the Defendant
Solicitors: Sahu Khan for the Plaintiff
Munro Leys & Co for the Defendant
Date of Hearing: 6 April 2010
Date of Judgment: 9 July 2010
INTRODUCTION
[1] This a claim by Mr Razak for damages for unlawful dismissal by his former employer the Defendant, Fiji Sugar Corporation Limited ("FSC"). He was dismissed in June 1994. The matter went before the Sugar Industry Tribunal which, on 6 May 1997, found that Mr Razak was unlawfully dismissed and awarded him compensation but did not re-instate him. He was not satisfied with that and brought this action in June 1998 alleging that FSC conspired with its employees and officers to have him terminated. The reason for that he said was to protect themselves from embarrassment and difficulties with insurance claims by FSC for repairs carried out following cyclone Kina which struck Fiji on 2 and 3 January 1993.
[2] FSC defends the claim principally on the basis that the Tribunal Award finally determined this dispute and Mr Razak is barred from re-litigating his claim because of the doctrine of res judicata and issue estoppel.
CASE HISTORY
[3] The Writ and Statement of Claim was filed 12 years ago on 1 July 1998. The Defence was filed on 3 August 1998. The Summons for Directions was filed on 28 August 1998 and the Order made on 30 September 1998. On 25 September 1998 FSC’s solicitors filed and served an application to strike out Mr Razak’s claim pursuant to O 18 r 18 of the High Court Rules 1998 on the grounds that it disclosed no reasonable cause of action, it was frivolous and vexatious and it was otherwise and abuse of process. The application was first called on 2 October 1998. The application was mentioned two more times and on the third time on 22 January 1999 it was struck out for non appearance by the lawyers for FSC. The Plaintiff’s solicitors filed the Order for Directions on 5 March 1999 and their client’s List of Documents on 28 April 1999.
[4] On 3 June 1999 FSC solicitors filed an application to re-instate its striking out application of 25 September 1998. The order for re-instatement was made on 25 June 1999 which revived FSC’s striking out application. That application came to be heard on 27 January and 10 February 2000 by the Judge who delivered his ruling on 23 February 2005. The Judge dismissed the striking out application on the grounds the issues before the Tribunal were different from this case and it was possible that the trial Judge could reach a different conclusion. I will refer to His Lordship’s decision more fully later in this judgment.
[5] On 19 October 2005 the Plaintiff’s solicitors filed particulars of the alleged conspiracy to which the Defendant’s solicitors filed FSC’s defence to those particulars on 13 March 2005. The action then laboured in the system until it came to be set down for hearing on 31 October 2006. That date was vacated on Mr Razak’s application on the grounds that he was studying in his final year in New Zealand and would not be able to attend at the hearing. No less than ten court appearances later this action eventually came before me on 4 December 2009 and I set it down for hearing on 6 April 2010. It had passed through the hands of 6 Judges. At the end of the hearing at counsels’ request I directed that they file written submissions and I deliver judgment on notice. The times given for them to file submissions have now expired. However, on the eve of delivery of this judgment, counsel for the Defendant faxed his submissions to the Registry which I gratefully accepted. I realise that counsel for the Plaintiff is overseas on important international business and that may explain why his submissions have not been filed but this action has suffered enough delays and I am not prepared to exacerbate the situation further. This is my judgment notwithstanding the lack of final submissions from the Plaintiff.
THE STATEMENT OF CLAIM
[6] The Statement of Claim pleads that Mr Razak was employed as an engineer with FSC. He was a member of the Sugar Milling Staff Officers Association (the "Union"). The Union and FSC entered into an Agreement containing the terms and conditions of employment for salaried staff officers including Mr Razak. The Agreement was registered with the Ministry of Labour under the Trades Disputes Act. He said FSC issued him a letter dated 22 June 1994 which wrongfully and unlawfully dismissed him. Had he not been dismissed he would have been employed for another 19 years till he reached age 55. He claims his entitlements under clauses G6(a), (b) and L2(a) of the Agreement. He said the Union issued proceedings on his behalf against FSC in the Sugar Industry Tribunal (the "Tribunal") and on 6 May 1997, the Tribunal ruled that he was wrongfully dismissed and awarded him wages due to that date but did not order his re-instatement. He has tried to mitigate his loss but his efforts to secure employment have not been successful. He has suffered loss and damage as a result and claims from FSC lost wages and other entitlements totalling $730,396.78 as special damages and general damages including exemplary and punitive damages. He also claims interest at 13.5% from the date of his dismissal to the date of this judgment and indemnity costs.
[7] Mr Razak also alleged that FSC and its officers and employees conspired to have him dismissed to protect themselves from embarrassment and difficulties with an insurance company pertaining to claims relating to repairs carried out for damage caused by hurricane Kina. He gave particulars of the conspiracy as follows:
(i) The Defendant Company appointed a committee ("The Said Committee") comprising one Savenaca Cavalevu an Assistant Personnel Officer and S. Gounder an Accountant and one P. C. Dutt, a Permanent way and Building engineer all in the employment of the Defendant at all material times to carry out an investigation into the purported allegations against the Plaintiff concerning certain works carried out after the Cyclone Kina in early 1993.
(ii) The Said Committee was, instructed and/or directed its investigation on matters and issues to ensure that the Plaintiff be blamed solely for the works carried out so that the Senior management at Rarawai Mill and in particular the then Manager was Mr Adura Kuva were exonerated from the allegations.
(iii) The Defendant through its Board Members and the Managing Director J. K Galuinadi carried out the purported investigations with the view to ensure the Plaintiff be blamed to have carried out the relevant works without proper authorisations.
(iv) The Defendant and its Management particularly the then General Manager at Rarawai Mill Mr Aduru Kuva falsely represented at the investigation and inquiry that the Plaintiff had not taken proper approval to carry out the relevant works on behalf of the Defendant after the Cyclone Kina.
(v) The Defendant and its employees and servants agreed to present the picture that substantial works carried out by the Plaintiff on behalf of the Defendant were not related to Cyclone Kina.
(vi) The Defendant and its employees agreed and did cast aspersions on the Plaintiff’s works by holding the Plaintiff’s works to a standard in excess of that which it required of its own engineers.
(vii) The Defendant and its employees, agreed to present and did present the picture that the Plaintiff carried out works for the Defendant after Cyclone Kina without proper authorisation.
(viii) The Defendant and its employees to save the embarrassment of the Defendant its Management at the Rarawai Mill with the Insurance Company agreed to and manipulated to impose the blame on the Plaintiff as regards the works carried out on behalf of the Defendant after Cyclone Kina.
(ix) The Defendant and its employees and in Particular the Said Committee agreed to and manipulated its investigation and findings that the Plaintiff conducted himself in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of service and was in substantial neglect of his duties at all material times in dealings with the aftermath of Cyclone Kina.
(x) The Defendant and its employees agreed to and manipulated to ensure that the Plaintiff be made to carry the shortcomings of the system then in place in the Defendant’s system and operations at all material times.
(xi) The Defendant and its employees servants and agents amount themselves (sic) planned to have the employment of the Plaintiff terminated so that the Defendant and its Management avoid their embarrassment in particular with the Insurance Company.
(xii) Each of the acts specified in the Proceeding (sic) paragraph hereof was done by the person or persons alleged on behalf of himself or themselves and the Defendant in furtherance of the Said Conspiracies.
THE DEFENCE
[8] FSC denies that there was any conspiracy. It further says that the Tribunal had decisively given an Award so Mr Razak cannot now bring these proceedings again in this Court. It also says that Mr Razak should have appealed under s 123 of the Sugar Industry Act. FSC also relies on the defence of issue estoppel in that it says that the Tribunal had already decided the same causes of action that are now before this Court.
THE STRIKING OUT RULING
[9] My learned brother Judge that heard the striking out application refused it on several grounds. The first of which was that he had insufficient evidence before him to say that this was a plain and obvious case for striking out. The second ground was that the doctrine of res judicata did not apply, even though the Tribunal was "a court of competent jurisdiction" because firstly, the parties before the Tribunal (the Union and FSC) were not the same as those before him (Razak and FSC) and secondly, the dispute before the Tribunal was a "trade dispute" and the one before him was "conspiracy and breach of contract", and thirdly, the Tribunal appeared to lack the jurisdiction to deal with conspiracy or contract matters and the power to award damages of the kind claimed in the Statement of Claim. The concluding paragraphs of the Ruling are these:
[24] The plaintiff has not had all of his claim dealt with by the Tribunal, which would appear to lack the jurisdiction to deal with conspiracy or contract matters, and to be without power to award damages of the kind claimed in the plaintiff’s statement of claim. It could not be said that this is "the same complaint in substance and in fact": see Mills-Owen CJ in Chinsami v Punamma [1967] 13 FLR 82, 85; cf too Conquer v Boot [1928] 2 KB 336."
[25] By these proceedings the plaintiff does not seek to set aside any finding of the Tribunal: Whippy v Kong (unreported) Court of Appeal, Fiji Civil Appeal No ABU0038.01S. 15 November 2002 at p 10; nor to dislodge the main finding of the Tribunal: Green v Hampshire CC [1979] 1 CR 861, 866. In Stephenson v Garnett [1898] 1 KB 677 the plaintiff sought to dislodge the finding of fraud in the previous litigation.
[26] It is possible the trial judge could reach a different conclusion based on additional material of the earlier proceedings. At this stage I am inclined to the view that the cause of action and relief sought in the first action are different from that in the second action: Vivras Development Ltd v FNPF Board (unreported) Court of Appeal, Fiji Civil Appeal No ABU 0044.03S, 19 March 2004.
[10] It seems to me that His Lordship did not intend his Ruling to be binding on the trial Judge so it is still open to me to consider the res judicata and issue estoppel points afresh after hearing the evidence.
ADMITTED FACTS
[11] It is admitted that Mr Razak was an engineer employed by FSC and that he was unlawfully dismissed as found by the Tribunal. He was awarded compensation for loss of salary and other benefits but not re-instated. His terms and conditions of employment were provided for in the Agreement between the Union and FSC.
THE HEARING
Documentary Evidence
[12] Before the hearing commenced counsels took time to agree on the documentary evidence to be tendered by consent. I am grateful for their assistance because it made the trial much shorter than it would have otherwise been. They were tendered as Plaintiff’s Documents: P1 to P9, the latter being the "Agreed Bundle of Documents" and Defendant’s Documents: D1 to D27. D25 was the FSC Investigation Report; D26 the Preliminary Submissions before the Tribunal and D27 the Final Submissions before the Tribunal. The Plaintiff tendered a list of job applications as an exhibit and by consent counsel agreed that it was not necessary to tender the individual applications.
Plaintiff’s witness
PW1
[13] Mr Razak gave evidence. He now lives in Auckland, New Zealand. He said he was employed by FSC in 1990. He was a Permanent Way and Building engineer. He was a member of the Union and was employed under the Agreement between the Union and FSC. After his dismissal he tried locally in Fiji to get jobs but during interviews when he told them of his dismissal he could not get the job. He submitted a long list of positions which he had applied for and failed. He was then directed to do another engineering course, environment engineering. He completed the course in 2006 and is now employed as an environment engineer.
[14] He said he was dismissed as a result of an FSC Investigation Report (D25). The inquiry was conducted by Savenaca Cavalevu (personnel officer, Suva), Sachida Gounder (accountant, Labasa) and Parram Dutt (PWBE, Rarawai). Their report was dated 3 June 1994. The inquiry committee recommended that he be dismissed summarily under clause B6 (e) of the Agreement for "misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of service and for habitual and substantial neglect of his duties". He was then sent a letter of termination by FSC dated 22 June 1994 (P9#3). The letter was signed by the Managing Director, Mr Galuinadi.
[15] He said prior to the inquiry, he was called into Mr Karan’s office. He was told: "FSC want to get rid of you". He said:" We have not started the investigation". He denies the allegations against him. He followed procedures. He said the Union rep went with him to the inquiry who objected on his behalf on matters beyond his responsibilities like buying a fishing boat and charging it to Kina expenses. He said when this was said the inquiry committee members were winking to each other and tried to pin them to him. It was not possible to charge to a cost center without approval and a job number given. He had no doubts that the committee wanted him as a scapegoat for mismanagement. He said Mr Cavalevu told him that he was only following directions from the General Manager.
[16] He was not allowed to see the report prior to the hearing because they said it was confidential. Only his counsel had seen it before and that was only for an hour.
[17] Mr Razak said he became depressed after the inquiry. He had to drop voluntary work which he was doing because he was humiliated.
[18] He was working for Ports Authority before FSC. He agreed to join FSC because of the conditions under the Agreement.
[19] In cross examination he said he sought employment elsewhere and told the prospective employers the truth that he got dismissed. It was put to him and he disagreed that the Tribunal found that he "resigned honourably". He was referred to paragraph H of the Tribunal’s further decision of 17 October 1997. He insisted that he was made the scapegoat by FSC senior staff. That was how he felt during the investigation. The investigation was window dressing as submitted in the Tribunal. He was the unwitting victim. He did not agree that there was no provision for him to be employed till age 55. He received about $76,000 from FSC under the Tribunal Award.
The Defendant’s evidence
[20] FSC did not call any witnesses and relied on the documents tendered by consent.
THE TRIBUNAL DECISION
[21] The factual findings by and the issues before the Tribunal are contained in its Decision and Award of 6 May 1997. Not only are they relevant to the consideration of res judicata, they serve to put a more complete picture of what happened so I reproduce the Decision and Award in toto:
DECISION
This is a dispute between the Sugar Milling Staff Officers’ Association (the "Association") and the Fiji Sugar Corporation Limited (the "Corporation") over the dismissal of one Mohammed Sahim Razak on 23 June 1994. He was dismissed for alleged misconduct and neglect of duties in respect of reconstruction work done at 17 Mile Tavua and Field 11 Koronubu in early 1993 after Cyclone Kina struck Fiji on 2 and 3 January 1993. Mr. Razak was Permanent Way and Building Engineer Rarawai Mill at the time, a position he held until early 1994. It is the Association’s claim that Mr. Razak was unreasonably and unfairly dismissed and it seeks his reinstatement.
The Corporation asserts that Mr. Razak initiated the work "without authorization" and "usurped the authority of the Board and committed the Corporation to massive expenditure". As a direct consequence, it had to bear $316,000.00 (out of a total expenditure on both areas of $525,000.00) which the loss adjusters excluded from Cyclone Kina-related claims and classified as being capital expenditure items.
Hearing of this dispute amounted to almost twenty-eight days held at various times in 1996 on dates convenient to the parties. Further time was taken in making written final submissions before the Tribunal deliberated on the matter. It apologies to the parties for the delay in handing down a decision.
Having carefully evaluated the considerable evidence and the large number of exhibits adduced by the parties, the Tribunal is of the opinion that the issue of authorization is crucial in this dispute. What procedures were in place in January 1993 for approval of the reconstruction work at 17 Mile and Field II Koronubu? Did Mohammed Razak obtain the necessary authorizations or was he acting either without any and/or beyond his ambit of responsibility?
The Association maintains that at the relevant times approvals were sought and granted in early January 1993, Mr. Ramend Charan was the Acting General Manager Rarawai. At the end of 1992 Mr. James Venkataiya retired and Mr. R. Charan was appointed to act in his place pending Mr. Aduru Kuva’s transfer on promotion from Penang Mill. He was slated to take up the position when he returned from local leave in late January 1993. Cyclone Kina expedited the process. However, the Tribunal is satisfied on the basis of memoranda and other documentations available that Mr. Charan was officer in charge until at least 12 January 1993. The Corporation strenuously denied this but the relevant.
The Corporation and its personnel were placed in a difficult situation post Cyclone Kina. There was the imperative to assess what damage had been done together with the realization that the crushing season was to begin in June. Apart from the memorandum issued by the Acting General Manager about 6 January 1993 and another by the mill accountant on 12 January 1993, there does not appear to be anything else in writing about procedures for authorizing rehabilitation work. Both memoranda related to the setting up of a costing structure for Cyclone Kina-related damage. There was to be proper accounting and cost centres were released for the various categories of damage. The second memorandum also sought more detail by way of a scope of works from all heads of department including Mr. Razak on proposed damage rehabilitation. In those early weeks after Cyclone Kina, a committee comprising the senior management of Rarawai Mill met daily to determine damages and co-ordinate rehabilitation work, it worked closely with three expert assessors who were flown in by the insurers to oversee Cyclone Kina-related projects.
It is common ground between the parties that a Cyclone Kina Register was instituted subsequent to the cyclone detailing the damage and the work required to be done. This was then checked by the assessors before they recorded their approval for work recommended to be done. This dovetailed with the two memoranda referred to earlier.
The Corporation insisted that apart from those requirements, the further approval of the General Manager was still required given the expenditure involved. The Tribunal cannot accept that suggestion because it seeks the best of all possible worlds. That that in essence meant was that after initial approval for a scope of works had been given by the General Manager or an officer acting with his authority and the assessors had given their sanction by endorsing the Kina Register, the issue then went back to the General Manager for final endorsement. There is nothing in writing to suggest that was the case. That is because the procedures were rather ad hoc. Either the work was Kina-related or it was not. The further authorization the Corporation asserted was necessary appears to have applied for capital expenditure works. However that was not relevant for present purposes and to suggest so was akin to trying to have the best of all possible worlds. The Tribunal is satisfied that the initial authorization was properly obtained. The manner in which Mr. Razak did the work (i.e. his competence) was not cited as a reason for his dismissal and therefore is of little relevance.
The Tribunal is mindful that a considerable time had passed before the dispute came before it for determination. Indeed the investigation which the Corporation itself conducted commenced nearly eighteen months after Cyclone Kina had struck the relevant areas. In what must have been a crisis situation, the Tribunal accepts that what would have otherwise been a detailed procedure for the proposal and approval of major capital expenditure was suspended for the purposes of Cyclone Kina-related rehabilitation work. Therefore the signatures in the Cyclone Kina Register must prima facie be taken to be proper authorization before it unless its reliability could be impugned. Certainly, no work was ever done at Varavu as set out in the Kina Register but in the cases of Seventeen Mile Tavua and Field II Koronubu while there was much controversy, the signatures of the assessors in the appropriate places are a complete answer to the Corporation’s doubts.
The scope of works presented by Mr. Razak was initialed by Mr. Ramend Charan as Acting General Manager. Therefore it received the Corporation’s imprimatur. At the time the Corporation had also received a report from Mr. Mua Taito that called in to question or at the very least cast doubt on Mr. Razak’s assessment of the damage at 17 Mile Tavua. This appears to have been left in abeyance until the Corporation investigated the circumstances surrounding 17 Mile Tavua and Field II Koronubu over a year later.
In seeking to reconstruct what transpired at both 17 Mile Tavua and Field II Koronubu, the Corporation called Mr. Tony Lavan, the insurance representative. He was able to testify that on the basis of what Mr. Taito and Mr. Asiveli Moce, the senior foreman, had seen as well as from his own assessments as an engineer much of the work Mr. Razak did was unnecessary. The standard of the work was also wanting and required further remedial measures to restore the stretch at 17 Mile Tavua to workable order. While not doubting Mr. Lavan’s expertise, the Tribunal felt that it would have been more appropriate to have heard from Mr. Horner or Dr. Ho, the consultants who had initially given the authorization. In their absence, the Tribunal was only left with the assertions of Mr. Razak to consider. The evidence of the Corporation’s witnesses and those of the Association regarding the damage at 17 Mile Tavua were diametrically opposed. In the circumstances the Tribunal prefers the Association’s version of events which has the advantage of consistency. It was only contradicted over a year later when the Corporation sought an investigation into the significant expenditure incurred at 17 Mile Tavua and Field II Koronubu.
At Field II Koronubu, the parties differed on how much work was required. The area sustained extensive flooding damage. A good portion of the tracks needed to be replaced. However, the Corporation and Association could not agree on the amount of preparatory work that had to be done before the tracks could be re-laid. Mr. Lavan testified that because the initial work had not been done properly, the foundation had to be prepared again thereby incurring further cost. There was also disagreement on how much damage was sustained. The Tribunal is not asked to pronounce upon Mr. Razak’s competence. And while his experience and expertise were no match for that of Mr. Lavan, the Tribunal did gain the impression that the Corporation, in casting aspersions on both the extent and standard of work at the two relevant sites, was holding Mr. Razak to a standard in excess of that which it required of its own engineers.
The reconstruction at Seventeen Mile Tavua excited much of the Corporation’s attention. When the General Manager issued an order that work be halted in mid February 1993, the Corporation then held consultations with its consultants before work proceeded. As with Field Eleven Koronubu, the Corporation intervened to ensure that Mr. Razak worked under supervision. Work at both sites then were completed on that basis in time for the commencement of the crushing season in June. Given these considerations, the Corporation continued to avail itself of Mr. Razak’s services at Rarawai until February 1994 when he was transferred to Lautoka. It is therefore difficult for that further reason the Tribunal to accept the Corporation’s submissions that Mr. Razak acted without proper authorization. Indeed Seventeen Mile Tavua and Field Eleven Koronubu were raised in the General Manager’s assessment of Mr. Razak’s performance. Despite that he received a satisfactory report. The Tribunal can only conclude that the General Manager while having some reservations about the quality of Mr. Razak’s work accepted that the rehabilitation work done at both sites in question had been properly authorized. In any case, the Tribunal is of opinion that had Mr. Kuva been in any doubt about the issue of the authorization, he would have acted swiftly to dismiss Mr. Razak. That he did not do so fortifies the Tribunal in determining adversely against the Corporation on this crucial issue.
The Tribunal has of course the benefit of hindsight. But the time to act on any alleged misconduct was in February or March 1993. It was clear in the course of 1993, that significant overruns in expenditure had been incurred at the two sites in dispute here. The investigation conducted in May 1994 found Mr. Razak had conducted himself in a manner "inconsistent with the fulfillment of the express or implied conditions of his contract of service and was "in a substantial neglect of his duties". The Tribunal must respectfully differ with that finding. It is noteworthy that the investigation report made the following observations:
Whilst the Corporation does not have a Schedule of Practices and Procedures to guide officers in the aftermath of a natural disaster of this nature, Rarawai Mill had managed to provide assistance in this regard by holding regular Heads of Departments meeting and issuing circulars. We are aware that a Special Kina HOD Committee chaired by the Factory Manager was in existence.
The Team is also very much aware of the unprecedented repercussions arising out of the loss of the Corporation’s credibility in its relationship with insurers. The monetary value of this loss is phenomenal".
The report then continued (without any hint of irony):
"In terms of procedural matters, the Team is convinced that appropriate procedures were in place to provide assistance to enable Heads of Departments and their subordinates in attending to the necessary rehabilitation work to areas under their control."
It is apparent to the Tribunal that the Corporation’s procedures for dealing with the aftermath of Cyclone Kina were inadequate. Mr. Razak has been made to carry the shortcomings of the system then in place. While there were constant meetings of the heads of departments at Rarawai Mill, the Tribunal gained the impression that it very much on ad hoc arrangement rather than a systematic way of dealing with the aftermath of Cyclone Kina. What bemused the Tribunal was the apparent lack of procedures in place when Cyclone Kina struck. Bemusement because cyclones are always expected at a certain time of the year. They are an (unwelcome) part of life here that the Corporation was obliged to take into account. It did not do so at great cost to it.
In coming to that conclusion, the Tribunal does not suggest that Mr. Razak was completely blameless. There are certain aspects of the reconstruction work at both sites (such as the cavalier manner in which rail tracks at Seventeen Mile Tavua were treated) that the Tribunal found wanting. Furthermore, Mr. Razak seemed obsessed with the aspect of gradient at Field Eleven Koronubu when its relevance seemed somewhat overstated. The Corporation had also raised concern over the alleged subterfuge Mr. Razak engaged in when the major excavation work conducted at both sites had to be first authorized and then paid. There may well have been elements of that conduct present but one would have expected the apparent. He seemed to be a rather sensitive man who preferred to work with trusted lack of competence or for shortcomings in his character but for not obtaining authorization and for engaging in capital works without following proper procedures. The Tribunal can only conclude that Mr. Razak acted in accordance with what was understood procedures hence the Corporation’s apparent equanimity at first.
It appears to the Tribunal that the Corporation only decided to act or investigate Mr. Razak when it became clear what degree of cost it would have to bear in relation to Seventeen Mile Tavua and Field Eleven Koronubu. That consideration appeared to taint the investigation the Corporation launched because Mr. Razak was then asked to account for actions that the Corporation had appeared to accept. What appears to have been the basic problem was the absence of a proper system of procedures of accountability in place. Mr. Razak became the unwitting victim of that state of affairs.
The Corporation adduced evidence to cast doubt on Mr. Razak’s credibility. Chief among these was the extracts from his diary in which he recorded happenings in the early part of 1993. The Tribunal is not in a position to comment other than to say it would require expert evidence to determine the veracity of the Corporation’s claims that Mr. Razak "doctored" his diary entries. This would also apply to the suggestion that some of the entries in the Kina Register were entered subsequent to the approval being obtained by Mr. Razak. However, the Tribunal is of the opinion that does not undermine the Association’s unwavering assertion that Mr. Razak acted properly after securing the appropriate authorization. The Tribunal finds that the authorization received from Acting General Manager, Mr. Ramend Charan, has not been shaken by the Corporation’s evidence.
The Corporation throughout this hearing has maintained that the works at both sites (but more particularly at 17 Mile Tavua) were not Kina-related and therefore required approval in accordance with established procedures for capital projects. Such an argument has an "after the fact" aspect to it. There was never any suggestion that was the case at the relevant time until well after the works had been completed. Indeed while intervening at one stage to halt all works, the Corporation through Mr. Kuva later allowed them to resume with Mr. Razak from that time but the fact that the Corporation persisted with him can only suggest that he had obtained the necessary approval in accordance with the ad hoc procedures established after Cyclone Kina. Surely if the Corporation had even the slightest reason to doubt that it would have removed Mr. Razak immediately given the possible implications for its insurance claims.
What is unarguable is that the relationship between Mr. Razak and the Corporation has been damaged beyond repair. The mutual recriminations of the parties makes reinstatement an untenable option. Mr. Razak would return to an employer that remains distrustful of his motives and unpersuaded about his integrity. Too much face has been lost by both parties to make any reconciliation a lasting one. In the circumstances the Tribunal is of opinion that compensation to a degree that could allow him to recommence his professional career elsewhere is the best option. Therefore while the Tribunal finds that Mr. Razak’s dismissal was unfair and unreasonable in that he had the appropriate authority for the Cyclone Kina-related rehabilitation work done at Seventeen Mile Tavua and Field Eleven Koronubu contrary to assertions by the Corporation, reinstatement will not be ordered.
AWARD
The Tribunal finds that the dismissal of Mohammed Sahim Razak was, by the Fiji Sugar Corporation Limited on 23 June 1994, unfair and unreasonable and he is to be paid salary as from the date of his purported dismissal to the date of this award. There will be no order for reinstatement.
DATED AT SUVA this 6th day of May, 1997
[22] The Tribunal further elaborated on the amount of compensation that Mr Razak was to get in its further decision of 17 October 1997 which I also reproduce below:
FURTHER DECISION
The Tribunal has already determined Mr. Mohammed Sahim Razak was unfairly dismissed. He now seeks an interpretation regarding the benefits to which he is entitled. The position of the Tribunal is as follows: Mr. Razak is to be paid all the compensation he was due as if he were not dismissed. If that is not sufficiently clear for the Corporation, the Tribunal has no hesitation in varying the award in those terms pursuant to section 121 (b) of the Sugar Industry Act Cap. 206.
In his application, Mr. Razak submitted correspondence between his counsel and the Corporation about the compensation to be paid. The latter’s position is stated in its letter to the Secretary of the Sugar Milling Staff Officers’ Association dated 18 August 1997. The Tribunal is not impressed by the Corporation’s unduly technical and excessively pedantic approach and finds as per each item raised as set out below:
To be paid in full inclusive of the 12.5% housing allowance given that Mr. Razak did not occupy a Corporation house after his purported dismissal.
The proposed 12% is excessive and a rate of 5% is to be substituted.
In as much as these are quantifiable benefits, Mr. Razak is entitled to be compensated for these expenses.
Mr. Razak is to be paid all the increases received by his fellow employees during the period of his purported dismissal. The argument that he was not on the Corporation payroll is a specious one in the light of the finding of unfair dismissal. The Tribunal is offended that this simple point even needs to be made.
The rating Mr. Razak received from the Corporation’s appraisal was one factor in the finding of unfair dismissal. The Corporation apparently held him in some regard despite its supposed misgivings about 17 Mile and Koronubu. On that basis it is only fair he should receive the merit increase he claims.
This is a cover that Mr. Razak would have continued to receive had he not been unfairly dismissed. Therefore this benefit must be restored for the period of his alleged dismissal which the Tribunal reversed.
This is to be paid to Mr. Razak as of right. The Tribunal regularized Mr. Razak’s employment as from the date of his purported dismissal to the date of the decision. Therefore he becomes entitled to whatever leave accrued for that period.
This provision does not apply. The Tribunal’s decision in effect was an honourable resignation. Clause 06(a) and (b) of the parties’ collective agreement only refer to dismissal or retirement and therefore Mr. Razak’s case is outside the ambit of these provisions.
AWARD
The foregoing consideration of the issue of compensation constitutes a further award of the Tribunal and is to be read with Award No. 1 of 1995 that was delivered on the 6th day of May, 1997.
DATED at Suva this 17th day of October, 1997.
THE CONSPIRACY CLAIM
[23] I am not satisfied that there was a conspiracy by FSC and its officers and employees to make Mr Razak the scapegoat. The inquiry committee took into account reports from independent persons in coming to its conclusions. Although the Tribunal did not accept that the works carried out by Mr Razak were not authorised, it did not make any findings so as to suggest that the inquiry was biased or unfair to him. I would go as far as to say that the Tribunal, but for the lack of authorisation of the works, would have accepted the inquiry report as quite damaging for Mr Razak. The Tribunal restricted itself to the very narrow issue of whether the works were authorised and found that they were authorised. It reached that conclusion because of "the absence of a proper system of procedures of accountability" and the "ad hoc procedures" and some of the works being knowingly allowed to go on during the period following the cyclone. It did say that in reaching its conclusion it was not suggesting that Mr Razak was "completely blameless".
[24] Mr Razak has failed to prove the elements of conspiracy as set out in Kuwait Oil Tanker Company SAK & Anor v Abdul Fattah Sulaiman Khalid Al Bader & Others [2000] EWCA Civ 160; [2000] 2 All ER Comm. 271.
THE CRUCIAL ISSUE
[25] In any event, I think the crucial issue in this case is whether Mr Razak was able to show that he was not able to get any employment at all for the period from his termination June 1994 till age 55 a period of 19 years.
[26] He was found by the Tribunal to be unfairly and unreasonably dismissed on 23 June 1994. He has been compensated for lost wages and other entitlements under the Tribunal Award from that date to the date of the Award which was 6 May 1997. His said it was about $76,000.
[27] I do not think it makes any difference in this case whether Mr Razak was unlawfully dismissed or his dismissal was in breach of his contract of employment for the purposes of calculating the measure of damages. He lost his wages and entitlements under the contract as a direct result of his dismissal.
[28] Is Mr Razak entitled to just sit and wait and do nothing and claim lost wages and expenses for the rest of his working life from his former employer for having dismissed him in that way? Or must he mitigate his loss? Chitty on Contracts [1]states that there are three rules regarding mitigation of damages. First, the plaintiff cannot recover damages for any part of his loss consequent upon the defendant’s breach of contract which the plaintiff could have avoided by taking reasonable steps. Secondly, if the plaintiff in fact avoids or mitigates his loss consequent upon the defendant’s breach, he cannot recover for such avoided loss, even thought the steps he took were more than could be reasonably required of him under the first rule. Thirdly, where the plaintiff incurs loss or expense in the course of taking reasonable steps to mitigate the loss resulting from the defendant’s breach, the plaintiff may recover this further loss or expense from the defendant.
[29] The third rule does not apply to this case in that there was no evidence led to quantify such incurred losses or expenses; only the first and the second rules applied.
[30] I will deal with the application of the second rule to this case first. Mr Razak said he eventually did a further course and changed his career to an environment engineer. That would immediately dispose of his claim for damages from the time he took up that employment. He is not claiming for the cost of his further education and other expenses and did not provide any evidence of that at the hearing.
[31] The first rule imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damages which is due to his neglect to take such steps[2]: British Westinghouse Electric Co Ltd v Underground Electric Rys [1912] UKLawRpAC 43; [1912] AC 673, 689 per Viscount Haldane LC.
[32] The plaintiff must act reasonably. He cannot for instance unreasonably refuse to accept comparable employment: Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038; Yetton v Eastwoods Froy Ltd [1967] 1 WLR 104. In Brace v Calder [1895] UKLawRpKQB 109; [1895] 2 QB 253, 259 Lord Esher MR said:
But it was argued alternatively that there was a breach of a contract that the plaintiff should be employed and paid for two years, and he is therefore entitled to succeed as upon breach of that contract. Assuming that there was such a breach of contract, I think it is obvious that in estimating the damages for it the possibility of the plaintiff’s getting other employment equally good for the remainder of the two years must be taken into account. In this case it appears that he could have got such employment: and therefore, if there is such a contract as is alleged and a breach of it, the damages are only nominal.
[33] Has Mr Razak taken reasonable steps to mitigate his loss or secure alternative employment?
[34] In this case I am not prepared to accept that Mr Razak was totally unemployable. I do not accept his evidence that the only reason he was not able to get a job was the stigma attached to his dismissal. He may not be able to get another job as a PWB Engineer at a sugar refinery but he could, as he had done before, have worked for another employer in Fiji. Even if I am to accept his list of job applications, I think that it fell short of adequate proof of reasonable effort to obtain alternative employment. There were two job applications in Fiji, one in April 1994 and the other in January 1996. For a period of nearly two years he did not apply for any jobs. His job applications in NZ started in January 1999. It seems to me that he conveniently took advantage of the delay in the hearing before the Tribunal and the delivery of its decision. He could have done what he eventually did while waiting for the decision by taking alternative courses here or overseas.
[35] No evidence was put before me to show how long it might take a sacked engineer to find new employment or how difficult it would have been to get it. As I have said above I do not accept the schedule of job applications as sufficient proof of his inability to get a new job. Mr Razak had been compensated under the Tribunal Award for the time he was out of a job, from 23 June 1994 to 6 May 1997, a period of nearly 3 years. It is true that he was hoping to be re-instated but there was every possibility that he was not going to get his job back. I think it is unreasonable for him to just sit and wait and hope. He should have taken steps in this period to mitigate his loss and seek other employment. I am therefore not persuaded to grant him further compensation.
[36] Further, I am of the opinion that Mr Razak’s contract was not for employment till age 55 under clause B5(a) of the Agreement as alleged by him. The point has been authoritatively decided by Pathik J in Fiji Electricity Authority v Naiyaga [1998] FJHC 77; Hba0004aj.96s (29 May 1998):
The fact that the retiring age in the agreement is 55 years does not mean that it is a contractual retiring age. It is the age at which employees of that description in the relevant group can reasonably expect to be compelled to retire [AGE CONCERN SCOTLAND v HINES (1983) IRLR 477] [quoting from SELWYN'S LAW OF EMPLOYMENT 7th Ed].
RES JUDICATA
[37] I agree with my learned brother Judge that dismissed the application to strike out on the doctrine of res judicata. The Tribunal decision was on the very narrow point of dismissal for lack of authorisation. Therefore the doctrine would have applied only to that issue and not the "conspiracy theory": Chinsami v Punamma [1967] 13 FLR 82.
[38] However, I do not think that arguing and attempting to prove the conspiracy theory would have advanced Mr Razak’s case any further because the crux of his case was that he was unlawfully dismissed which the Tribunal did find in his favour. Indeed, the conspiracy argument seems irrelevant because the reason given for his dismissal was lack of authorisation.
[39] If it was to form the basis for a claim under the principle in Central Manufacturing Company Ltd v Kant [2003] FJSC 5; CBV0010.2002 (24 October 2003), then it fails because Mr Razak has not been able to prove that FSC conspired against him or that he had been treated unfairly, harshly or in a humiliating manner when dismissed.
[40] The only issue which was not argued in the Tribunal was Mr Razak’s entitlement to compensation for the rest of his working life from the date of the Tribunal Award. That issue however raises another question and that is whether it should have been argued before the Tribunal. Clearly, all the information to support the claim was available to Mr Razak then. I, with respect, differ in opinion from my brother Judge that heard the striking out application because the damages claimed in this action could have been claimed in the Tribunal hearing. I think the Tribunal had the power to make such an award. It is part of the compensation or damages that an employee would have been entitled to as a matter of law.
THE FINAL OUTCOME
[41] The final outcome is therefore the Plaintiff’s claim for special damages is refused. The claims for exemplary and punitive damages are also refused. He is entitled to nominal damages only. I have not been given any authorities or guidance as to how much such damages should be so I will not guess it but will instead award him the costs of this action because he has in a sense won.
[42] The declaration that the Plaintiff was dismissed unfairly and unreasonably has already been made by the Tribunal and is not in dispute in this action so I do not need to make any further order in that regard.
COSTS
[43] This case had a long and protracted journey. The Court file is several inches thick and no doubt a substantial effort has been put in by Mr Razak’s solicitor and counsel. I therefore summarily assess his costs to be paid by the FSC as $5,000, to be paid within 28 days.
THE ORDERS
[44] The final Orders are therefore as follows:
- The Plaintiff’s action is dismissed.
- The Defendant shall pay the Plaintiff’s costs of $5,000 within 28 days.
Sosefo Inoke
Judge
[1] 27th Edn. Para 26-050.
[2] Ibid para 26-051
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