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To'ia v Tonga Visitors Bureau [2001] TongaLawRp 60; [2001] Tonga LR 329 (14 December 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 665/2000

To'ia

v

Tonga Visitors Bureau

Ward CJ
10, 11 December 2001; 14 December 2001

Employment law – unfair dismissal – breach of natural justice – not proved – claim dismissed

The plaintiff was an employee of the defendants for 11 years. On 1 July 1999 he commenced vacation leave of 99 days, which was his leave entitlement. He went to the United States of America for that leave but, before it was completed, he applied by telephone for a further 58 days special leave. That was granted and ran from 8 October to 7 December 1999. The plaintiff was unable to return in time because he was unable to obtain a seat on any flight until 26 December. He sought permission for a further extension but it was refused. By the time he returned to Tonga, the public service was on leave for the Christmas break and so he was unable to report for work until 3 January, the first working day of 2000. The plaintiff was suspended from 3 January and on 18 February there was a letter from the Establishment Division which set out the charge relating to the unauthorised leave and also added that the plaintiff had taken unauthorised leave twice before in 1991 and 1995. There was also a charge that he had misused the Departmental vehicle. It concluded with the requirement that he submit his explanations with the Establishments office no later than 6 March. On 28 February, the plaintiff supplied his reasons in writing. On 1 May he was notified that Cabinet had decided on 19 April 2000 to dismiss him from the Service "on the ground of leave without authority, with effect from the 1st December 1999". He brought an action for unlawful dismissal and sought declarations that the defendants' appeal procedure was unlawful and ineffective, that his dismissal was a breach of natural justice and that it was ultra vires. He sought damages totalling $13,500 for the unfair dismissal.

Held:

1. It was clear that, when permission was given to the plaintiff to extend his time away by special leave, a specific date was stated upon which he had to return to work. If that date was wrong, he should have taken it up at the time. His obligation was to attend work on the date stated and that he failed to do.

2. With respect to breaching the provisions of natural justice, there was no evidence that the final decision to dismiss the plaintiff was anything but a properly taken decision. There was no evidence that the final decision was reached before it was considered or that it was simply rubberstamping a previous decision. The decision to dismiss was made solely on the basis of the unauthorised leave.

3. The claim was dismissed with costs to the defendants.

Counsel for plaintiff : Mr Fifita
Counsel for defendants : Mrs Simiki

Judgment

The plaintiff was an employee of the defendants for 11 years until he was dismissed in early 2000. He brings this action for unlawful dismissal and seeks declarations that the defendants' appeal procedure is unlawful and ineffective, that his dismissal was a breach of natural justice and that it was ultra vires. He seeks damages totalling $13,500.00 for the unfair dismissal.

The plaintiff's case is that he commenced vacation leave of 99 days on 1 July 1999, which was his leave entitlement. He went to the United States of America for that leave but, before it was completed, he applied by telephone for a further 58 days special leave. That was granted and ran from 8 October to 7 December 1999.

Unfortunately, the plaintiff was unable to return in time because he was unable to obtain a seat on any flight until 26 December. He sought permission for a further extension but it was refused.

By the time he returned to Tonga, the public service was on leave for the Christmas break and so he was unable to report for work until 3 January, the first working day of 2000.

On that day he was told he was suspended and a letter was given to him saying that he had been recommended for dismissal. It was from the Acting Manager of the Tonga National Centre, Filipo Faiva. It included the passage:

"According to Estacode therefore I hereby inform that recommendations have been submitted to the Director of Tourism for your dismissal because you failed to comply with your leave requirements. I have already contacted the Minister of the Visitors Bureau Department and he informed me to dismiss you from the Service.

Because this is the second time you have failed to comply with the Department's requirements with regard to staff leave, the matter has been referred to higher authorities for a final decision for your dismissal from the Service."

On 14 January, Mr Faiva again wrote to the plaintiff:

"I respectfully write to convey to you, that you are required to lodge with the Department an explanation with regard to your leave without authority beginning from your special leave without pay from the 1st of December 1999. You are given fourteen days within which to reply to this letter beginning from today."

On 11 February Mr Faiva again wrote to say that the Minister had ordered the plaintiff's suspension from 3 January and advising him "the Department has referred that matter to the Establishment Office and Staff Board. They will contact you and inform you of their final decision regarding this matter."

This was followed by a letter from the Establishment Division on 18 February. It set out the charge relating to the unauthorised leave and also added that the plaintiff had taken unauthorised leave twice before in 1991 and 1995. There was also a charge that he had misused the Departmental vehicle. It concluded with the requirement that he submit his explanations with the Establishments office no later than 6 March.

On 28 February, the plaintiff supplied his reasons in writing. He heard no more until 1 May when he was notified that Cabinet had decided on 19 April 2000 to dismiss him from the Service "on the ground of leave without authority, with effect from the 1st December 1999".

The defendants' case is simply, that the plaintiff was dismissed following the proper procedures which included the opportunity to put his case.