IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: 238 of 2015

BETWEEN	:	EDWIN THOMAS of 27 Nasevou Street, Lami, Suva in the Republic of 				Fiji

PLAINTIFF

AND	:	EVERGREEN INTERNATIONAL FIJI, LLC (the Company) a limited 	Liability company having its registered office at Lot 19, Wailada, Lami, Fiji 	and trading as EVERGREEN FIRE and SECURITY AND GUARD 	FORCE FIJI

DEFENDANT

Appearance		:  	Mrs. Kunatuba S. for Plaintiff
			   	Ms. Low P with Mr. Skiba K. for the Defendant
Date of Hearing	: 	5th December, 2017, 30th and 31st January, 2018
Date of Judgment	:	28th February, 2018

JUDGMENT

INTRODUCTION

1.	The Plaintiff had instituted this action against the Defendant for unfair and wrongful dismissal under common law. The Plaintiff was summarily dismissed. It is admitted fact that Plaintiff was given several warning letters and also a final warning letter by the Defendant for his aggressive and unprofessional behaviour towards the clients, subordinate employees as well as other employees including senior management personnel. The Plaintiff’s position is that his behaviour did not constitute a serious misconduct that justified a summary dismissal. The contract of employment provides termination of it by either party with one month notice and in lieu of that one month salary. The letter of termination inter alia offered the Plaintiff one month salary.

FACTS
2.	It is an agreed fact that the Plaintiff was summarily dismissed on 2nd June, 2014 whilst in the employment of the Defendant company. (see agreed facts in the pre trial conference minutes)
3.	The Plaintiff held a senior management post in the Defendant and had worked for the Defendant as well as its former entity since 2000. His employment contract with the Defendant’s predecessor was signed along with confidentiality agreement in year 2002.

4.	During the said time period the employer of the Plaintiff change hands several times due to its global entity changing hands several times and the name of the employer changed accordingly. These are evidenced from ‘P4’ and ‘P5’ and at the time of termination the employer was the Defendant.

5.	The Plaintiff holds a MBA from the University of South Pacific and he had worked with the Defendant for more than 14 years and was its Operational Manager in Suva division.

6.	He had received long service award for working with the employer for over 10 years in 2010.

7.	The first incident regarding Plaintiff’s unprofessional behaviour was in 2006 regarding threatening the Financial Controller of a client of his employer, to deport him by reporting him to immigration authorizes.

8.	This fact is admitted by his own letter of 29th September,2006 and in the cross examination he admitted making such a threat, but stated that he would not go to such a length of complaining and he could not assure that a person could be deported  solely on his complaint.

9.	The employer had apologized to the client on 2nd October, 2006 on the behaviour of the Plaintiff on the complaint received from the client on 27th September, 2006.
10.	On or around 12th February, 2007 the Plaintiff had dismissed a security personnel who was undergoing training at that time without any inquiry for allegedly calling him ‘Gavin’. There was no evidence that this utterance was done by the said security officer and without any form of warning or investigation the Plaintiff had entered the training room and the said Security Officer was manhandled and was also dismissed summarily.

11.	On this incident, explanation was called from the Plaintiff and evidence of the others were recorded and finally  the Plaintiff was given a final warning that if he acts in unprofessional manner that he will be terminated. The receipt of the said warning was admitted.

12.	This evidenced from admission of the Plaintiff when he was shown the document dated 5.03.2007. The Plaintiff had also acted unprofessionally towards the trainer Rupeni. The said letter also stated if such behaviour is shown he could be terminated from service in the future since there were 3 similar unprofessional conducts including a swearing at an employee when he went to see him in his office.

13.	 Again in a management meeting held in Novotel 13th August, 2010 the Plaintiff was accused of ‘unprofessional, disrespectful, and aggressive’ manner. Instead of terminating him on that occasion again he was reminded of all previous occasions where he had behaved in aggressive and unprofessional manner by letter of 16th August, 2010. The same letter stated that it was a final warning and any repeat of such unprofessional behaviour could result in termination of the Plaintiff.

14.	On 27th May, 2014 at a meeting with General Manager, Mr. Fenton Barrack, Wah, Yosh the Plaintiff is accused of acting ‘unprofessional, disrespectful and aggressive manner’ and his services were terminated by summary dismissal.

ANALYSIS
15.	The Plaintiff is claiming special damages for his salary for two years on the basis of restrictive covenant where he is prevented from working on a rival business.

16.	The Plaintiff is also claiming general damages for breach of contract, for unfair dismissal.

17.	This action is instituted under common law for breach of contract. The plaintiff’s employment contract is marked as D1 and clause 19.1 states as follow
‘19.1 	Termination of employment shall be by one month’s notice by either party in writing to the other except in case of serious misconduct in which 	case summary termination may apply
19.1.1 In the case of serious misconduct the Employer reserves the right to 		suspend an employee pending investigation.
	19.2 	In lieu of proper notice one month’s salary may be paid or 				forfeited.
	…………’

18.	So either party could terminate the employment contract with one month notice or in lieu of that by providing one month’s salary.

19.	In this instance the Plaintiff was offered one month salary and dismissed summarily.  So, there is no breach of contract under common law.

20.	In Court of Appeal  Shell Fiji Ltd v Johnson [2010] FJCA 54, ABU0012/2009 (23 September 2010), his Lordship Byrne and Callanchini J held,
	‘It is apparent that the Respondent was not given notice nor did he receive 	any payment in lieu of notice.’

21.	In contrast to that, the Plaintiff was offered one month salary in the said termination letter, though the termination was a summary termination the clause 19.1 which I have quoted earlier was referred in the said letter of termination. 

22.	The said Court of Appeal case dealt with implied contract, whereas here the Plaintiff and Defendant had a contract of employment where either party could terminate in terms of clause 19.1 of the contract. Court of Appeal in Shell (supra) dealt with common law right to terminate.

23.	The said clause 19.1 contained in the contract of employment, dealt with summary termination for serious misconduct as well as for termination of the contract by either party, generally. The obligation on both parties to give one month notice or in lieu of that to provide one month salary. Since one month salary was offered to the Plaintiff, no damages can be granted for breach of contract.

24.	Even if I am wrong on above, the Plaintiff was dismissed summarily and statutory provision governing summary dismissal are stated in Section 33 of Employment Relations Act, 2007 which states as follow;
Summary dismissal
33.—(1) No employer may dismiss a worker without notice except in the following circumstances-
(a) where a worker is guilty of gross misconduct; 
(b) for wilful disobedience to lawful orders given by the employer; 
(c) for lack of skill or qualification which the worker expressly or by 	implication warrants to possess; 
		(d) for habitual or substantial neglect of the worker's duties; or 
		(e) for continual or habitual absence from work without the 			permission of the employer and without other reasonable excuse. 

	(2) The employer must, provide the worker with reasons, in writing, for the 	summary dismissal at the time he or she is dismissed. 

25.	The burden of proof then, in terms of Section 33 of Employment Relations Act, 2007 had shifted to the Defendant that summary dismissal is justified. (See Court of Appeal decision Shell Fiji Ltd v Johnson [2010] FJCA 54, ABU0012/2009 (23 September 2010), his Lordship Byrne and Callanchini J.

26.	So the issue is whether the Defendant on balance of probability established any one or more grounds stated in Section 33 of Employment Act. For this the Defendant had called 9 witnesses. Of that two witnesses relate to an incident outside the office of the Defendant, relating to a complaint of a client. 

27.	 Statutorily the employer is obliged to give reasons for summary dismissal. In my judgment that is to confine the reasons for summary dismissal for those grounds stated in the summary termination letter.

28.	The termination letter is marked as D8 and states as follow
                     EVERGREEN INTERNATIONAL FIJI, LLC
                                    MEMORANDUM
TO		:	EDWIN THOMAS
FROM		:	FENTON BARRACK, GENERAL MANAGER FIJI
SUBJECT	:	DISMISSAL
DATE		:	02/06/2014

a.	In August 2010 you were issued a final warning in a memorandum dated 16/08/2010 for unprofessional, disrespectful and aggressive behavior at a Managers meeting. In issuing the final warning it had been noted that there had been three previous incidents of a similar nature involving your behavior.

b.	On Tuesday the 27th of May 2014, during a meeting with you, Wah, Yosh and I, you again acted in an unprofessional, disrespectful and aggressive manner while we were reviewing and trying to discuss ways to improve your division. Your behavior towards your peers and me were totally unacceptable and you took exception to us raising any questions about your division and responded with argumentative, aggressive, rude and disrespectable behavior throughout the meeting. Your actions constituted serious misconduct.

c.	In addition, your division being Guardforce Suva is failing behind its targets for 2012 and despite bringing this to your attention earlier in the year, you have made no serious efforts to explain or improve this situation and the results are only worsening. 

d.	With reference to your Individual Employment Contract, clause “19.1 Termination of employment shall be by one month’s notice by either party in writing to the other except in the case of serious misconduct in which case summary termination may apply”, you are hereby summarily dismissed with immediate effect.

e.	As per clause 19.4 of your Individual Employment Contract you are to vacate your office immediately and hand over all company property supplied to you or which you possess. On receipt of these you will be paid 1 month’s salary and any other entitlements owing to you less any monies owed by you to Evergreen.

Fenton Barrack
GENERAL MANAGER 
29.	From the said letter the Plaintiff was summarily dismissed after giving him a final warning on 16.08.2010 .This letter which is having a Subject: Final Warning is marked as D7.

30.	The Plaintiff had not replied or denied the facts stated in D7. 

31.	By reading that letter D7 as well as D8 indicate a series of events, where the Plaintiff had acted unprofessionally and aggressive manner.

32.	It should also be noted that Plaintiff had always accepted these letters and had not denied contents.  In the cross examination the Plaintiff also accepted the receipt of the said warnings and if the contents or the facts stated therein were not true he could have denied them. These incidents were proved by the witnesses called by the Defendant.

33.	The letter marked ‘D7’ is also mentioned in the letter of termination (D8). The said letter stated that it was the forth such occasion where the Plaintiff had lost temper, and acted in aggressive and unprofessional manner, and he was given warning for three previous occasions.

34.	These three previous warnings were also admitted by the Plaintiff and those three occasions were also stated in the said letter D7. 

35.	It also stated a swearing at an employee when he went to see him in his room.

36.	It is very difficult or nearly impossible to lay down every behaviour of a senior managerial personnel similar to Operational Manager. They are given a certain freedom, and that does not indicate that they can behave badly. 

37.	From the evidence called by the Defendant it is proved on balance of probability that Plaintiff had acted unprofessional manner and such behaviour cannot be condoned by the Defendant. The Plaintiff had been given sufficient notice to improve his behaviour, but he had not heeded to this Final Warning.
38.	All the witnesses that gave evidence for the Defendant confirmed that the Plaintiff was a very aggressive and disrespectful to his subordinates, to his pears as well as to senior management including the General Manager.

39.	It is noteworthy that even as late as 2010 the General Manager in his Final Warning (D7) in the opening paragraph stated as follows
	‘The behaviour you displayed in our Managers meeting on Friday 13th 	August, at the Novotel, Lami boardroom was unprofessional, disrespectful 	and aggressive and I will not tolerate this from any of our staff.’

40.	The witnesses who were at the said meeting while giving evidence confirmed that the behaviour of the Plaintiff was very unprofessional, to say the least. This is certainly not what one could expect from the senior managerial personnel, and if ignored can deteriorate the organizational behaviour, specially discipline of the senior management of the Defendant. 

41.	The last witness called by the Defendant had left the employment of the Defendant and now employed in another organization. He confirmed that though he consider Plaintiff as a friend and both of them reside in same area and meet on the road or other places, the behaviour of Plaintiff in the said instances were far below expectation of senior management person of the Defendant.

42.	He was at the General Manager’s office when the termination of the Plaintiff was communicated to him and he explained how difficult was even for the General Manager to do that. This indicate that the General Manager had taken the decision to terminate Plaintiff with much reluctance. General Manager of a 

43.	The termination was done in close doors, and the Defendant had taken all necessary steps not to humiliate the Plaintiff but again the Plaintiff had raised his voice to the General Manager that he would take the matter to the courts.

44.	Considering the circumstances the behaviour of the Plaintiff is below the expectation of a senior management personnel. Though he was given several warnings and also a final warning from the evidence of Mr Wah , Yoshiko Wakaniyasi, the Defendant on the balance of probability proved that Plaintiff had behaved in unprofessional , disrespectful and aggressive manner and this conduct along with his previous conduct amounts to gross misconduct.

FINAL ORDERS
a.	The Plaintiff’s action is struck off.

b.	Considering the circumstances of the case I do not award any costs.

Dated at Suva this 28th day of February, 2018

							................................................
							Justice Deepthi Amaratunga
							High Court, Suva