HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 157 of 2003

ANDREW MAOMAIASI

v

SOLOMON ISLANDS PORTS AUTHORITY

Honiara: Brown PJ

Date of Hearing: 27th January 2004
Date of Judgment: 4th February 2004

Summons for Declaratory Orders

Judicial Review - contract of employment - termination by way of retirement - allegation of breach of notice previsions – claim for redundancy -factual enquiry

Practice and Procedure – claim for declarations of right to redundancy pursuant to notice - nature of declaratory orders - effect of declaration.

The plaintiff sued the Ports Authority seeking a declaration that his termination was unlawful in that he had not been given the requisite notice in accordance with the Handbook regulations and further that he fell to be terminated pursuant to redundancy arrangements offered by the Authority. The fact are fund in the judgment.

Held 

1.	The plaintiffs termination was by way of notice dated 11 June 2001 in accordance with the Authorities right pursuant to Clause 12.1 of the Handbook (incorporating the Authorities regulations) on the ground of "retirement."

2.	The plaintiffs assertion that he had been terminated by notice dated 12 December 2001 was a falsehood.

3.	The Authority had not been shown to have breached any re calling for this Court's review.

4.	The declaration are refused and there be a verdict for the defendant on the issues joined, apparent on the affidavits.

Obiter

5.	The unfullness of declaration in such a case is open to question.

Cases cited:

Dorney -v- Commissioner of Taxation (1980) 1 NSWLR 406

Legislation:

Solomon Islands Ports Authority, Handbook (regulations).

Ishmae Kako for the plaintiff 
James Apaniai for the defendant

Reasons for Decision

The applicant was employed by the Solomon Islands Ports Authority as a Warehouse Superintendent. He originally joined the authority in 1974 as a Warehouse Clerk until 1989 when he was promoted to Superintendent.

In his summons for relief he asks for a declaration whether his termination was unlawful. If so, he says that he should have been made redundant and his redundancy entitlements paid.

In his affidavit in support, he recited that he had been terminated by way of retirement on the 12th December 2001, without a three month notice or payment in lieu of notice as required by Clause 12.1 of the Authorities handbook (which incorporated the Authorities regulations).

He had then served the Authority for 271/ years. On the 30th January 2002, after he had received the notice of retirement (referred to above) he wrote to the Chairman of the Board of Directors of the Authority, pointing out, what he saw as the Authorities error in failing to make him "redundant" in accordance with an earlier notice of the Authority proposing redundancies to reduce the employee numbers for the statutory authority was, (as were all businesses) in straightened circumstances in the Solomons at the time.

The Authority in its defence, by way of affidavit (for the manner of instituting proceedings seeking declarations instead of filing a statement of claim effectively precluded proper pleading) denied the plaintiffs assertion that he had been terminated on the 12th December 2001, for he had been given his notice of retirement date 11th June 2001, marking his last working day as 12th December 2001. At the request of the applicant, advance payment of his retirement benefit was made on the 27th July 2001 in the sum of $22,000.00 and again on the 2Th July a further sum of $30,000.00 was paid him. The applicant continued working until his last day 12' December 2001. On the 13th December the balance of his retirement package of $111,977.98 was paid him in the sum of $59,977.00 all these moneys were paid by the Authority in good faith on the strength of the notice of the 11th June 2001 and I so find.

The assertion by the applicant, then that the termination notice of December 2001 was that notice under which the Authority ended his employment is false.

The circumstances surrounding the issue of a notice on the 12th December, were explained by the Director of Corporate Services for that the applicant had approached him on that day for a copy of his retirement notice. That notice was computer generated with the then current date, 12th December 2001. The appellant asserted at the time he had lost his earlier notice.

Notwithstanding this falsehood, I still must consider whether the Authority had power according to its Regulations (embodied in its Handbook).

Clause 6.1(4) of the Handbook provides –

Retirement

"The period of service shall continue until the employee reaches the retiring age of 50 years or serves 25 years with the Authority. The Company may retire an employee on medical grounds. The Company or the employee should give a minimum of six (6) months notice to effect normal retirement etc.".

I'm satisfied the conditions of service under which the applicant was employed provided for the alternative retirement option, and that on the 11th June 2001, the notice given the applicant was a valid notice in accordance with his conditions of service.

Reviewing the procedure carried out by the Authority leading up to the cessation of work by this applicant on the 12th December 2001 leaves me in no doubt that the Authority followed its Handbook regulations and advantaged the applicant by its prepayment of part retirement benefit.

The respondent was entitled to retire the applicant by virtue of his 271/ years period of service. The applicant told an untruth that he was terminated by notice dated 12th December 2001 when he knew full well he had been retired earlier and had accepted two payments towards his retirement benefit, and had worked and been paid during the 6 month notice period..

His summons is without basis in fact.

The usefulness of declarations in this instance is doubtful. I recite what Hutley J A said in Dorney -v Commissioner of Taxation (1980) I NSWLR 406 at 408 and adopt them.

"There is a further restriction on the effectiveness of a declaration, namely that, as its name indicates, it is not a constitutive legal act as is, for example, a judgment for debt or damages; and except by giving to existing legal relations the status of re judicata, it cannot change them"

In other words, a declaration that there was no proper termination by way of retirement, does not mean the applicant automatically gains his redundancy. It merely means that the termination is referred back to the Ports Authority, so that the Authority or Company may deal with him according to law. In other words, follow the correct procedure, if it wishes to terminate him by the "retirement provision" it may do so, but this Court cannot substitute the executive powers of the Board with its power of review, and determine this mans employment.

The declarations are refused. There is a verdict for the respondent on the issues joined, apparent on the affidavits. The applicant shall pay the respondents costs of the proceedings.

J.R Brown Judge