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Fonua v Tonga Communications Corporation Ltd [2008] TOCA 2; AC 04-2008 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 04 of 2008

BETWEEN:

SIOSAIA H. FONUA
Appellant

AND:

TONGA COMMUNICATIONS CORPORATION LIMITED
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Niu for the Appellant
Mr Tu’utafaiva for the Respondent

Date of hearing : 16th July 2008.
Date of judgment :

JUDGMENT OF THE COURT

[1] This is an appeal against a judgment of Andrew J of 14 December 2007, awarding the appellant damages in the sum of $150,846, for his wrongful dismissal in July 1999 by what is now called the Tonga Communications Corporation Ltd ("the Corporation"). At that time, his employer was the Tonga Telecommunications Commission ("the Commission") whose role and powers have been assumed by the Corporation. It is unnecessary to detail the background leading to the appellant’s dismissal and the history of litigation in the Supreme Court. Both are set out in the reasons for judgment of the Court of Appeal of 16 August 2006 in Fonua v Tonga Communications Corporation Ltd AC 4/2004.

[2] In this appeal, the appellant challenges the reasoning of Andrew J in two respects. The damages were calculated on the basis that the Corporation would have been entitled to dismiss the appellant by giving notice. His Honour concluded that one year’s notice was reasonable notice and, on that basis, calculated one element of the damages as being the salary lost for that year (together with interest). The appellant contends that his employment with the Corporation was, in effect, permanent employment and the damages should have been calculated on that basis. The second aspect of his Honour's reasoning challenged by the appellant was that the damages were calculated by reference to the appellant's salary as the Commission’s Chief Engineer which was the position he held at the time of the wrongful dismissal. The appellant contends that the calculation should have been made, in the main, by reference to the salary of General Manager. On the appellant's case, this was the position to which he would have been appointed, had he not been dismissed, several months after the time the dismissal occurred.

[3] It is convenient to consider first the argument that the appellant's employment was, in effect, permanent employment. We should begin by noting an observation made by the Court of Appeal in its reasons for judgment of 16 August 2006. The Court said: