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Malosi v Funafuti [2023] TVHC 8; Civil Case 1 of 2019 (31 October 2023)

IN THE HIGH COURT OF TUVALU 2023

CIVIL CASE 1/2019

BETWEEN
JENNIFER MALOSI
PLAINTIFF

AND
KAUPULE FUNAFUTI
DEFENDANT

Before Hon Judge Sir John Muria
Hearing 6^th and 12^th December 2022
Submissions 16^th and 25^th April 2023

Mr B Nia for Plaintiff
Ms F Nelu for Defendant

JUGEMENT

Muria J: On 1^st January 2019 the Plaintiff issued a writ of summons out of the High Court against three defendants. In the Statement of Claim accompanying the writ of Summons, the plaintiff seeks Judicial Review of the decision of the defendants terminating her employment. The plaintiff seeks the following:

a) General damages for pain, suffering and unlawful termination;
b) Specific damages in salary in the amount of $327,528.00;
c) Any other cost.

2. Before I deal with the plaintiff's claim in this case, I feel that I should make it clear the difference between a claim by way of judicial review action and a claim in private law action. A claim for damages for breaches of the plaintiff's employment rights is a claim in private law and appropriately commenced by a writ of summons and it is not a claim for judicial review. Generally, the right to damages does not apply in a claim for a Judicial review of unlawful actions of administrative bodies. I say, generally, because there may be judicial review cases in which a claimant may successfully show that his or her claim in private law has been established see R (Quark Fishing Ltd) -v- Secretary of State (No:1) [2001] EWCA CIV 14-0 (30 October 2002). Nevertheless, legal practitioners must keep to their proper procedure of bringing their client's claim to the Court.

3. It is important that legal practitioners take steps to properly plead their client's case, so that the courts know exactly and succinctly what their client's case is about. Claims seeking judicial review of decisions of public bodies are commenced by way of Originating Summons or Originating Notice of Motions and remedies sought are usually declarations and/or prerogative orders. Claim in private law such as for breaches of contracts, employment, breach of duty, are commenced by Writ of Summons.

4. From the materials before and submission of Counsel, the plaintiff's claim in this case is really one of damages for unlawful termination of employment. The plaintiff claim that the defendant unlawfully terminated her from her employment as a Community Planning and Development Officer for the defendant. The Court will therefore consider the plaintiff's case as a Claim for unlawful termination of employment and not as a Judicial review claim.

Background

5. The plaintiff background was appointed as the Community Planning and Development officer for the defendant on 23^rd October 2012. Her duties and responsibilities include preparing and producing the Kaupule development plans, coordinating the implementation of the plans and working with the Kaupule Treasury in preparing and producing the budget for the development plans.

6. The plaintiff held the position of Community Planning and Development Officer for the defendant from·23^rd October 2012 to 18^th November 2018; a period of six years. On 23^rd November 2017 the plaintiff was served with a letter from the Secretary General asking her to resign or faced termination. Following the defendant's letter of 23^rd November 2017, the plaintiff sought legal advice from the Office of the People's lawyer. There were exchanges of correspondences between the plaintiff's lawyers and the defendant in an attempt to resolve the matter.

7. As a result of the Lawyer's intervention, the plaintiff continued to remain in employment, although at a drastically reduced salary of about $96.87 per fortnight, which was only about twenty per cent of her salary. Her last twenty per cent pay was given to her in August 2018.

8. In October 2018, the plaintiff appealed her termination to the Falekaupule. On 16^th November 2018, she was advised that original decision to terminate her employment still stood.

9. On 1^st August 2019, the plaintiff issued a writ of summons in the present action against the defendants claiming damages for unlawful termination

The case for the parties

10. The plaintiff's case is that she was unlawfully terminated from her employment. She raised two ground in support of her claim, namely, first, that she was not awarded the opportunity to defend herself and that the allegations made against her were false, secondly, that the defendant failed to comply with the procedures in the defendant's staff Guidelines.

11. Mr Nia of Counsel for the plaintiff contended that the defendant had breached section 107 of the Falekaupule Act by not providing her with the opportunity to defend herself against the allegations made against her. Counsel further submitted that the defendant has failed to provide documents as directed by the Court in support of the defendant's case. Counsel submitted that the defendant's failure to do so, only goes to show that the defendant's allegations were not true.

12.The defendant's case on the other hand is that the conduct of the plaintiff justified her termination and that she was given notice of her misconduct in two letters dated 27^th June 2017, 16^th October 2017 and 23^rd November 2017. Ms Nelu of Counsel for the defendant also submitted that defendant had complied with the procedures in terminating the plaintiff and asked that the plaintiff's claim be denied.

13. No submission was made by Counsel for the defendant on the point revealed by the Plaintiff that the defendant failed to comply with the Court's direction made on 20^th September 2019 and 28^th February 2022.

Consideration and Decision

14. As I have already pointed out, this case basically turns on the question of whether or not the plaintiff was unlawfully terminated from her employment with the defendant. The Plaintiff gave evidence and called one other witness. The Defendant called four witnesses. Counsel for both parties were given time to file written submission
•·

15. The evidence before the Court, by affidavits and orally in Court, appears to suggest that following complaints of the Plaintiff's work performance, the members of the Kaupule Funafuti met on 22^nd November 2017 and decided that the plaintiff be terminated from her employment in the Community Development Planner with the defendant. The Kaupule's decision was conveyed to her by a letter dated 23^rd November 2017. The termination letter is in the following terms;

"23^rd November, 2017
Jennifer Taulomati
Kaupule Funafuti
Luapou
Subject: Termination from work at the Kaupule
Dear Jennifer,
You are hereby informed of the above subject with all due respect.
One last opportunity was given to you on June 27^th, 2017 for you to improve the status of your work and performance. Up until now, you have not properly utilize this opportunity. Thus the following are out findings regarding your work.

From the above, it reveals that you cannot handle your job as per requirement of this post-Planner. Most of the morning are always late and you record times that are wrong or false.
This is the decision of the Kaupule held on Wednesday the 22^nd November, 2017, to give you an opportunity to write a resignation letter before we enforce the decision to terminate you from work. You are given a week to submit to us your resignation letter.
For the termination, we will follow/adhere the Staff Guideline which states that you are to receive a 20% of your salary until the decision of the Kaupule is approved and endorsed by the Falekaupule. If you are not satisfying with the decision of the Kaupule you can appeal to to the Falekaupule within 30 days upon receiving this decision by the Falekaupule of the decision of the Kaupule.
We hope that you respect efforts for the betterment of the Kaupule and its work.
Thank you,
Rev. Taualo Penivao
Secretray Kaupule Funafuti
Email: tpenivao @ gmail.com"

16. Following the defendant's decision made on 22^nd November 2017 to terminate her employment and the subsequent letter by 23^rd November 2017 notifying of her termination, the plaintiff was asked in the same letter, not for her explanation or response to the matters allegation mentioned in the letter of termination but rather she was asked "to write a resignation letter before the decision to terminate you from work. You are given a week to submit to as in your resignation letter".

17. What happened following the receipt of the termination letter is instructive as shown by the undisputed evidence contained in the plaintiff's affidavit, in paragraphs 19 to 23 which date as follows:

"19. THAT in or about 24th November 2017, I approached the Secretary General to discuss the letter but he told me that the members of the Kaupule have made their decision, and stated that he needed someone like Mr, GUTER KOEPKE, who is an employee at the Public Work Department at the Government, to take the post.
20. THAT I requested the Secretary General to Consult with the members, but was not given a chance. I told the Secretary General that I have no other option but to assistance from a lawyer. The Secretary General replied to me that "if I do, I will be terminated.
21. THAT in or about, 25^th November 2017, Saturday evening at around 7:30pm, I went to the office to my room to print my reports. The Secretary General at the time was in the Office and he was aware of my presence.
22. THAT on Monday the 27^th November 2017, in the morning, I went to seek legal advice from the office of the People's Lawyer and I was advice to go to work for I have not been terminated.
23. THAT after seeking legal advice on that morning, 27^th November 2017, I went to work, I found out that every documents, files and folders on the Computer I used to do my work have been deleted. I ask the Information Technology (IT) officer, namely Mr. VEAUA KOFE, and he told me that he was instructed by the Secretary General to removed everything from my computer. Few minutes later, the Secretary General approached and told me to get out of the office and not to come back because I had been terminated.

18. Even though the plaintiff was not given the opportunity to respond to the allegations raise against her before terminating her employment, she requested for a chance to explain herself before the members of the Kaupule and the allegations. The meeting with the Kaupule arranged for 7^th December 2017 and not materialize because the defendants were not available. They had gone to seek legal advice from the Attorney General.

19. The evidence, both contained in the affidavits and orally given in court, shows the attitude of the defendants in the manner in which they dealt with termination of the Plaintiff's employment. There is no evidence at all to show that the plaintiff was given an opportunity to be heard at the meeting of the Kaupule on 22^nd November 2017 before the decision or-resolution to terminate the Plaintiff's employment was made by the members of the Kaupule as required by section 107 of the Falekaupule Act. An opportunity to be heard before an employee is dismissed is not a requirement of the rule of natural Justice but it is a statutory requirement under Section 107(3) of the Falekaupule Act.

This is what Section 107 of the Falekaupule Act requires: it says;

"Section 107: Power of Interdiction and dismissal

• a) In accordance with any relevant Staff Guideliness, the·Pule o Kaupule may indirect any officer or employee of the Kaupule from the duties and of duty or misconduct, pending a decision of the Kaupule as to the removal of the Officer or employee.
• b) Where on offifer or employee of a Kaupule who ·has been interdicted under subsection (1) is removed from office under subsection (3), such officer or employee shall be deemed to have been removed from office or employment as from the date of the interdiction.
• c) In accordance with any relevant Staff Guidelines, a Kaupule may by resolution, for sufficient cause, and after giving the officer or employee an opportunity to be heard, dismissed any officer or employee from its service or impose such other penalty on may be specified in the guidelines."

20. The salient Principle of Justice and fairness is that no man shall be condemned unheard. In the present case, I find that the defendant had a lot awarded the plaintiff the opportunity to be heard at its meeting on 22^nd November 2017 when it made the decision to terminate the Plaintiff from her employment. That was a breach of section 107(3) of the Falekaupule Act and the rule of natural Justice. Consequently the decision made on 22^nd November 2017 by the first defendant, terminating the plaintiff's employment was unlawful.

21. Not only that the first defendant deprived the plaintiff of her right to be heard before the decision to terminate her employment was made, but I find it also disingenuous of the defendant to insist on the plaintiff submitting her letter of resignation immediately following the delivering to her of her letter of termination. Resignation has its benefits for the employee including preserving future employment opportunities and positive references for the employee. This is not a case of an employee being given an option to resign or face termination following a hearing and that the employee was given the opportunity to be heard. The present case is an example of an employee being terminated without being heard and the defendant having realized that it had done wrong to the plaintiff, insisted that the plaintiff to submit her letter of resignation so as to prevent her from challenging the validity of her termination. As I said earlier, I find this conduct on the part of the defendant disingenuous.

22. Not only that I find the first defendant's action disingenuous, but also find the evidence before the Court in this case, particularly from the defendant witnesses, belies the veracity of the defendant's conduct in terminating the plaintiff's employment. First, as the plaintiff was not given the opportunity to be present and be heard at the purported hearing before the first defendant on 22^nd November 2017, there was no way that she could know that the five (5) reasons stated in the letter of termination dated 23^rd November 2017 were raised at that hearing and that they were the reasons for her termination. Only the members of the first defendant knew of the reasons raised at the meeting for the termination of the Plaintiff. Those reasons should be found in the Minutes of the Meeting, if any Minutes were kept.

23. Secondly, the evidence before the Court from Taualo Penivao who was the Secretary to the first defendant revealed that there were no Minutes kept of the meeting of the first defendant on 22^nd November 2017. The Evidence, affidavit and orally, from Mr. Penivao and Mr Vaguna Penileta also revealed that the main reason for terminating the plaintiff's employment was due to the continuous delay in the payment of the salaries of those employed in the Funafuti Housing Project (FHP). That was·also·the subject of the earlier meeting of the first defendant on 17^th November 2017 at which the plaintiff was present and made her responses. However at the hearing of the first defendant on 22^nd November 2017, the evidence of both Mr Penivao and Mr Penileta confirmed that the main reason why the members of the first defendant unanimously voted to terminate the plaintiff's employment was over the delay in the payment of the salaries of the FHP workers.

24. When Put to Penivao in cross- examination that real reason for terminating the plaintiff was never stated in the letter of termination, Mr Penivao confirmed that it was not. It was put to him in cross-examination: Q. "I put it to you that the main reason for the termination of the plaintiff was never stated in the letter of termination dated 23^rd November 2017. Is that correct? A. Yes"

25. The evidence of Mr Penileta in fact revealed the reason why the main reason for the Plaintiff's termination was not stated in the letter of termination. The reason was that the members of the first defendant voted unanimously to terminate the plaintiff's employment and directed the Secretary (Mr Penivao) to "set out" the grounds in the letter of termination. That he did, the next day, on 23^rd November 2017.

26. As it became clear that the five (5) reasons set out in the letter of termination were crafted by Secretary and they were not the reasons upon which the members of the first defendant unanimously voted to terminate the plaintiff.

27. There was no indication from the defendant on to when the planned meeting with the Secretary to the defendant would take place after it was postponed on 7^th December 2017. The plaintiff then wrote on 14^th December 2017 seeking to be accorded her annual leave entitlement for the year 2017, as well as her maternity leave entitlements. There was no reply from the defendant to her letter of 14^th December 2017. She gave birth to her child on 29^th January 2018 and because of her medical conditions, the doctor advised her to remain in hospital for sometimes so that she could monitored.

28. She did not stop following up on her case with the defendant since she wanted to explain her side of the matter and to pursue her appeal to the second defendant against her termination. With the help of her lawyer, he was able to secure payment of her salary but only 20% which was about $96.87 per fortnight. According to her; most of that pay went to meet her loan repayment. Her last pay was on 1^st August 2018.

29. It was not until 16^th November 2018 that her appeal before the second defendant. She was notified of the appeal hearing at 0830 am for the hearing at 0930 am, that same morning. Not surprisingly, the second defendant upheld decision of the first defendant made on 22^nd November 2017.

30. There is a further matter that needs to be mentioned. One of the allegations made against the plaintiff was her "Mostly absence from work." To establish this issue, the Court directed on 28^th February 2022 among other things, that the defendant produced the Attendance Logbook for the office where the plaintiff worked. In addition, the Court also directed that the Minutes of the Meeting to discuss the termination of the Plaintiff's employment be produced. Both the Logbook and Minutes were never produced by the Defendants. The failure by the defendant to produce the documents concerned shows that the defendants were not only in breach of the Order of the Court, but that the defendant had nothing to support their allegations against the plaintiff.

31. Finally, it is also part of the Plaintiff's claim that she was only paid 20% of her salary from 8^th February 2018 to 1^st August 2018. There is no dispute that the plaintiff was indeed only paid 20% ($96.87) of her salary fortnightly from 8^th February 2018 to 1^st August 2018.

32. In or about 14th December 2017, the plaintiff wrote to the Secretary to the first defendant requesting to take her annual leave for the as well as requesting to take her maternity leave. She supported her request with a medical report from the Doctor. There is no evidence to show that the defendant's replied to the plaintiff's letter of 14^th December 2017, despite a further letter from her lawyer to the defendant dated 28^th February 2018.

Conclusion

33. Having considered the evidence and the submission in this case, I come to the firm conclusion that the termination of the plaintiff's employment by the defendant in this case was unlawful. The defendants are liable in damages to the plaintiff.

Damages

34. The Courts in Tuvalu have time and again dealt with cases of unlawful termination of employee's employment. See the cases of Italeli -v-Attorney General [2009] TVHC 7; Kanello and Others -v- Kaupule of Nanumaga [2010] TVHC 9, Lamese -v- Kaupule of Nanumaga [2008] TVHC 7, Katea -v- Niutao Kaupule [2007] TVHC 1. In the present case, I considered that the award of damages to the plaintiff should not be limited to salary due only but rather should include general damages and aggravated damages.

35. In a claim of wrongful dismissal, assessment of damages is limited and generally confined to the financial loss to the claimant. The damages are generally limited to the loss suffered by the dismissed employee caused by the failure to follow the correct procedures; Lamese -v- Nanumaga Kaupule.

36. By her statement of claim, the Plaintiff is also claiming salary for the remaining 24 years at $13,647.00 per annum, giving a total of $327,528.00. This is clearly on the assumption that she would no longer be employed for the remaining 24 years following her unlawful dismissal until she retires in 2042. The Court has not heard any submission on·this point nor is there any evidence to support the plaintiff's claim that she would continue to remain in employment in her present job or some other positions in the employment with the defendants until she reaches retirement age in 2042 had she not been unlawfully dismissed by the defendants or that she would remain unemployed for the entire period until 2042.

37. The general principle is that it would not be right to make an award for loss of future earnings to a dismissed employee up to the date of his or her retirement except where the dismissed employee is due to retire within a fairly short time after he or she was dismissed. Only in the most exceptional circumstances and in the face of the clearest evidence that the dismissed employee has virtually become unemployable as a consequence of the Unlawful dismissal: Christine Perriot -v- Belize Telecommunications Limited (2014) Civil Appeal No. 35 of 2010. The plaintiff's claim of $327,528.00 salary in this case is rejected.

38. In the light of what I have said in this Judgement and having found that the plaintiff dismissal is unlawful, the plaintiff is entitled to be compensated by way of damages as follows:

1. Special damages

• (a) 80% of her Salary from 08^th February 2018 to 1^st August 2018.
• (b) Annual leave Pay for year 2017
• (c) One (1) month pay Lieu of Notice·

2. Awards (a), (b), (c) above to be calculated and paid to the plaintiff within 30 days from the date of Judgement.
3. General Damages for the manner in which the Plaintiff has been put through following her unlawful dismissal including the inconvenience and stress caused to her by depriving her of her annual leave, maternity leave, locking her out from her Office and drastic reductions of her salary. I feel the appropriate sum to compensate her in this regard is $5,000.00.
4. There are clearly aggravating features in the conduct of the defendants during and after of termination of the Plaintiff. I consider 50% of the sum awarded for general damages would be sufficient in this case, that is $2,5000.00
5. The total amount of damages awarded to the Plaintiff shall carry 6% interest per annum from the date of Judgement until paid in full.
6. The Plaintiff shall have her costs of this action to be taxed if not agreed.

Dated on 31^st October, 2023

Sir John Muria
Judge