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Leiola Group Ltd v Moengangongo [2010] TongaLawRp 19; [2010] Tonga LR 85 (14 July 2010)

IN THE COURT OF APPEAL TONGA
Court of Appeal, Nuku'alofa

AC 26/2009

Leiola Group Ltd

v

Moengangongo

Ford CJ, Burchett, Salmon, and Moore JJ
5 July 2010; 14 July 2010

Employment law – appeal against damages - $50,000 award of damages varied to $29,488.14

For the full facts, see the Supreme Court decision Moengangongo v Leiola Group Ltd [2009] Tonga LR 232. The respondent was awarded the sum of $50,000 in damages.

The appellant challenged the following: the finding that the respondent was 10 wrongfully dismissed from her employment with the appellant; the procedure of the trial judge to reserve the issues of damages to permit the parties to negotiate a settlement over the respondent's reemployment with the appellant; finding that as a matter of fact the respondent could not be regarded as dishonest. Ultimately the appeal proceeded on the basis that the court erred in awarding the respondent $50,000 and the appellant challenged the legal foundation of a judgment for $50,000.

Held:

1. The measure of damages should be assessed on the basis of the salary which the respondent would have received had the employment continued. The respondent would be required to mitigate damages by seeking other employment. However the appellant did not seek to establish that the respondent had failed to mitigate. Accordingly the respondent was entitled to the present value at the time of the assessment of the salary she would have earned in her employment with the appellant but for the wrongful dismissal. The amount claimed for loss of employment was $25,000. At the time of her dismissal she would have been (but for the suspension of her employment in February 2007) at level 7 (because of the demotion on 9 January 2007) earning $8,516 per year. Accordingly the claimed $25,000 represents approximately 3 years' salary. While it may have been open to be trial judge to award a greater amount of damages for loss of employment, this amount was appropriate given that it was the amount claimed.

2. The judgment of the trial judge was varied and judgment entered in favour of the respondent in the sum of $29,488.14. The costs order that concerned the trial in favour of the respondent should not be disturbed. While the appellant had some limited success in the appeal, the respondent was entitled to her costs of the appeal.