IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 449 of 2008

BETWEEN:

ROQIQI TUICOLO KORODRAU of Nadali, Nausori.
PLAINTIFF

AND:

FIJI NATIONAL TRAINING COUNCIL now known as
TRAINING PRODUCTIVITY AUTHORITY OF FIJI
1ST DEFENDANT

AND:

MINISTRY OF LABOUR AND INDUSTRIAL RELATIONS
2ND DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. S. Kumar for the Plaintiff
Ms. S. Devan for the 1st Defendant

Date of Hearing : 6th October, 2010
Date of Decision : 2nd October, 2012

DECISION

A.	INTRODUCTION

1.	The delay is regretted. The Plaintiff who was employed by the 1st Defendant as the Senior Accounts Officer. An employee of the 1st Defendant had made a written complaint regarding sexual harassment and this was investigated and on 11th November, 2002, the Plaintiff was offered to resign in lieu of immediate dismissal on the report of investigation which also granted the Plaintiff to participate and defend the allegation. The Plaintiff appealed against the said decision which offered him an option to resign in lieu of immediate dismissal and the said appeal was dismissed and upon the communication of that determination, he immediately resigned on the same day, and the resignation was accepted by 1st Defendant. Then the Plaintiff appealed against the said determination, but the said second appeal was also dismissed and the said dismissal was communicated to the Plaintiff on 27th December, 2002. The Plaintiff's two appeals were dismissed and after 6 years on 16th December, 2008 he has filed this action for alleged unreasonable and or wrongful dismissal. The 1st Defendant seeks to strike off the action for non-disclosure of a reasonable cause of action and also on the ground of abuse of process. The Plaintiff's response to the written complaint of sexual harassment was called and it was considered. The offer to resign was a good faith gesture and the Plaintiff was granted an opportunity of resigning instead of immediate dismissal and he exercised the option and resigned voluntarily on 22nd November, 2002 after his first appeal was dismissed. Having done so he again, appealed against the said decision, but it was also dismissed. The statement of claim does not disclose a cause of action. There is no indication of any express and or implied term that was breached by the 1st Defendant in the statement of claim.The terms of the offer letter clearly indicate that either party could terminate the employment contract with one month notice or in lieu of one month notice with payment of one month salary. Even if the contract is terminated the plaintiff could only claim for one month salary, but the Plaintiff has not claimed any breach or any duress and or any constructive termination. The 1st Defendant has indicated this to the Plaintiff's solicitor and he has flatly refused and desired not to claim any specific breach. The pleading does not disclose a reasonable cause of action, where the 1st Defendant can satisfactorily reply. The statement of claim at paragraph 16 claims that 'termination clause' in his offer letter was unreasonably applied. There is no cause of action in common law for unfair or unreasonable dismissal. The action is abuse of process where the Plaintiff who resigned waited 6 years to file this action without revealing a reasonable cause of action.

B.	FACTS AND ANALYSIS

2.	The first Defendant has filed an application by way of Summons dated 19th January, 2009 seeking an Order that the Plaintiff's action be struck out that the claim is statute barred and or that there is no reasonable cause of action.

Preliminary Objection to Summons for Strike Out

3.	The said summons indicate the rules as Order 18 rule 1(a) and (d). This is obviously an error of mistake as there is no such order. It has to be read as Order 18 rule 18 1(a) and (d). There is no prejudice or misrepresentation as the grounds for the strike out are expressly stated in the said summons and the Plaintiff has also filed an affidavit in opposition on the said grounds contained in Order 18 rule 18 1(a) and (d), for dismissal. If the Plaintiff desired to take up the irregularity of the summons, as an objection, Order 2 rule 2 is clear enough that he could not have taken the said preliminary objection at the hearing, and if the Plaintiff wished to object to the said irregularity he had to take that objection as soon as possible before any step being taken, and not on the date of hearing. Order 2 rule 2 (2) lays down the procedure for such an objection on the irregularity and the Plaintiff has not followed the said procedure. In the circumstances I reject the preliminary objection on the issue of irregularity in the summons and proceed to determine the summons on the merits.

4.	The Plaintiff was formerly employed with the first Defendant as its senior Accounts officer. The offer of the appointment was made on 31st January, 2002 and it was accepted by the Plaintiff. The said offer contained inter alia terms and conditions of the offer including a 'termination clues' as follows :

'During our service with the Council your appointment may be terminated by one month's notice on either side or by payment of one month's salary in lieu of notice; but you will be liable to disciplinary action in the event of misconduct or insubordination.' (emphasis added)

5.	Either side could terminate the said employment contract by one month notice or in lieu of one month notice a month salary can be paid and the contract can be terminated immediately.

6.	During the term of his employment, the first Defendant on the 25th October, 2002 received a written complaint from a female employee that she had been sexually harassed by the Plaintiff and the Plaintiff was granted an opportunity to response to the said complaint, and having considered the response of the Plaintiff a further investigation was initiated regarding the complaint of sexual harassment.

7.	The said investigation was conducted by a special committee comprising of department managers, a human resource representative and representative from employees association and the Plaintiff was also given granted an opportunity of participating (see para 13 iv of the statement of claim). After the investigation was completed the first Defendant on the 11th November, 2002 gave the Plaintiff two options, either to voluntarily resign or face summary dismissal. 

8.	The said decision was conveyed to the Plaintiff on 11th November, 2002 and stated inter alia as follows :

'Re: Result of the Sexual Harassment Investigation
After careful considering the investigation report andyour response, the Special Staff Board Committee has no choice but to offer you voluntary resignation from the employment with the Fiji National Training Council with immediate effect, or failure do so will result in summary dismissal.' (emphasis added)

9.	Upon the receipt of the said communication, the Plaintiff appealed against he abovementioned decision on 14th November, 2002, but the said appeal was dismissed and the dismissal was communicated by a letter dated 22nd November, 2002 and on the same day the Plaintiff resigned and the said resignation was also accepted by a letter on the same day.

10.	The said letter of acceptance state as follows :

'We acknowledge receipt of your letter of 22/11/2002, wherein you had notified us of your decision to resign from the employment of the Fiji National Training Council.

Director General has accepted your decision accordingly and your last day of work with the FNTC will be 22nd November, 2002.' (emphasis added)

11.	Again the 1st Defendant by its letter dated 9th December, 2002 indicated that there was another final appeal available and the Plaintiff had appealed and again the said appeal was dismissed. 

12.	In the said appeal, the Plaintiff did not withdraw his earlier resignation, but appealed against the determination of 22nd November, 2002. In the circumstances the resignation letter of 22nd November, 2002 will be effective from that date once the appeal is dismissed. The dismissal of the final appeal was communicated on the 9th December, 2002 and in the circumstances no further letter of resignation was needed and the Plaintiff did not take any action on this issue till he filed this action on 16th December, 2008.

13.	The Plaintiff in his statement of claim at paragraph 15 state that the 1st Defendant was not entitled to enforce the termination clause but failed to give any reason why the employee is precluded from exercising the said provision he has not even addressed this in his affidavit in opposition to this summons. The termination clause is applicable to both parties equally and can be resorted by any party to terminate the employment contract.

14.	In Investors Compensation Scheme Ltd v West Bromwhich Building Society [1998] 1 WLR, 896, summarized interpretation of contracts by Lord Hoffmann (at pages 912 H to 913E) as follows:

"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)The background was famously referred to by Lord Wilberforce as the "matrix of fact", but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next. It includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. 

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of its words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749).

(5) The "rule" that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does to require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Neviera SA v Salen Rederierna AB [1985] 1 AC 191. 201;

"…if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." 

If one applies these principles, it seems to me that the judge must be right and, as we are dealing with one badly drafted clause which is happily no longer in use, there is little advantage in my repeating his reasons to greater length. The only remark of his which I would respectfully question is when he said the he was "doing violence" to the natural meaning of the words….

The termination clause in the contract is equally applicable to both parties and the misconduct of the Plaintiff was investigated after the consideration of the response of the plaintiff and in good faith he was offered to resign. Any employee is subject to disciplinary action where a serious misconduct is alleged and this is also expressly stated in the said offer letter.

15.	In paragraph 16 of the statement of claim states that termination clause quoted earlier in this decision, was unreasonably applied as the Plaintiff had completed his probationary period and had received good performance appraisal reports. The Plaintiff has filed this action seeking lost wages and damages. There is no common law remedy for unreasonable or unfair dismissal and his work performance does not matter when a serious misconduct in the nature of sexual harassment is investigated. So, his good performance would have been considered as a mitigatory circumstances as he was given the option to resign instead of immediate dismissal.

16.	In paragraph 17 the Plaintiff alleges wrongful dismissal but failed to indicate any wrongful repudiation by the 1st Defendant and when the 1st Defendant's solicitor requested, the Plaintiff did not reveal such information indicating that this action was filed after 6 years from the alleged infringement not knowing the exact cause of action. The Plaintiff who resigned in 2002 waited six years to file this action, but again in this action no reasonable cause of action is revealed. Unfair dismissal is not actionable in common law. The 1st Defendant had granted the Plaintiff to response to the written complaint of sexual harassment, and has appointed a committee to investigate further and again the Plaintiff was granted an opportunity of participating in the said investigations, but without any protest the Plaintiff did not participate (see paragraph 13 iv of statement of claim). After the said investigations were concluded the report of the investigation confirmed the misconduct of the Plaintiff and in good faith he was offered the option of resignation in lieu of dismissal and after exercising this option the Plaintiff has waited for more than six years to file this action, but his statement of claim is vague and not easily comprehensible in order to reply to it. 

17.	Order 18 rule 6 of the High Court Rules of 1988 deals with the requirements of a statement of claim and stat as follows :

'6(1) Subject to the provisions of this rule, and rules 9, 10, and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defences, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.' (emphasis is added)

18.	In Supreme Court Practice (1988) at page 269 it was stated under the "Material facts, not evidence" 18/7/3 state as follows

'Material facts, not evidence'- Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved (per Farwell L. J in N. W. Salt Co Ltd v Electrolytic Alkali C Ltd [1913] 3K.B. 422,425). "The distinction is taken in the very rule itself between the facts on which the party relies, and the evidence to prove those facts (per Brett L.J. in Philipps v Philipps (1878) 4 Q. B. D. 133). All facts which tend to prove the fact in issue will be relevant at the trial, but they are not "material facts" for pleading purposes. "It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting the allegation" (per Lord Denman C.J. in Williams v Wilcox (1838) 8 A & E 314, p 331; and see Stuart v Gladstone (1879) 10 Ch. D. 644)…..' (emphasis is added)

19.	The Plaintiff's statement of claim does not disclose a reasonable cause of action though it contained 19 paragraphs. The purpose of the pleadings is lost as the statement of claim is vague and failed to indicate any specific breach of any implied or express term.

20.	In Supreme Court Practice (1999) at page 314 under the heading 'Need for compliance' of Order 18 where it was stated as follows

'Need for compliance- These requirements should be strictly observed (per May L. J. in Lipkin Gorman v Karpnale Ltd [1989] 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal within it, and such primary purpose remains and can still prove of vital importance, and therefore it is bad law and bad practice to shrug off a criticism as a "mere pleading point" (see per Lord Edmund Davis in Farrell v Secretary of state for Defence [1980] 1 W.L.R 172 at 180, [1980]1 All E.R. 166 at 173)'. (emphasis is added)

21.	In Farrell v Secretary of State (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies held

'It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions, and although there has been since the Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work in justice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. The purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take step to deal with it.'(emphasis is added).

22.	The Plaintiff also state that he had completed his probationary period and has also received favorable performance appraisals and cannot be dismissed as per the termination clause of the offer letter. The Plaintiff was not terminated for any inefficiency, but for a serious allegation which would have even subjected to a criminal charge. Sexual harassment of a female employee of the 1st Defendant cannot be taken lightly. The Plaintiff's response was called and after considering his response against the written complaint a thorough investigation was also ordered. A special committee was entrusted with further inquiry and they comprised even a representative from employees' association and they held that the Plaintiff had committed a serious misconduct of sexual harassment, but the employer in good faith had offered a resignation in lieu of immediate dismissal. So, any number of performance appraisals would not have saved the Plaintiff when such serious misconduct is dealt.

C.	CONCLUSION

23.	When the written complaint of the alleged sexual harassment was received by the employer it had called a response from the Plaintiff. After considering the response the employer had appointed a special committee to investigate further and the Plaintiff was also given an opportunity of defending himself but he chose not to do so. After the said investigation the Plaintiff was given the option to resign immediately, but the Plaintiff appealed against the said determination. The appeal was dismissed and the Plaintiff immediately resigned on 22nd November, 2002, but made a further appeal which was again dismissed on 27th December, 2002. This action was filed on 16th December, 2008 without disclosing a reasonable cause of action. The Plaintiff who benefited from the good faith gesture of the option of voluntary resignation in lieu of immediate dismissal, waited six years to file this action. The Plaintiff has escaped the stigma attached to dismissal on serious misconduct allegation of sexual harassment and also escaped the strong likelihood of criminal prosecution. After being dormant for six years the Plaintiff had filed this action without a reasonable cause of action. The pleading is vague and does not disclose a particular expressed and or implied breach. The unfair or unreasonable dismissal does not create a common law cause of action which he had pleaded in paragraph 13 iv of the stamen of claim. This action is a clear abuse of process and action is struck off. The 1st Defendant is granted a cost of $500 assessed summarily.

D.	FINAL ORDERS

a.	The action is struck off.
b.	The Defendant is granted a cost of $500 assessed summarily to be paid by the Plaintiff.

Dated at Suva this 2nd day of October, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva