IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 84 of 2003

BETWEEN:

IAN GEORGE BALTOR
Claimant

AND:

VANUATU COMMODITIES MARKETING BOARD - SANTO
Defendant

Coram: Justice P. I. Treston

Mr. Sugden for Claimant
No appearance of Defendant

Dates of Hearing: 3 May 2006
Date of Decision: 12 June 2006

JUDGMENT OF COURT ON QUANTUM OF CLAIM

HISTORY

In this rather protracted matter, a claim was filed on 2 June 2003 but the nature of the claim was set out in a further amended statement of case filed on 4 January 2005. The Defendant was originally represented and filed an original defence on 14 October 2003 but despite all sorts of applications being made by the Claimant and questions asked and answered, Mr. Daniel, who had been acting for the Defendant, filed a notice of ceasing to act on 8 November 2005 and thereafter the Defendant failed to appear. Judgment was entered for liability on 31 January 2005 pursuant to an application made by the Claimant under Rule 18.11 (4) (a) of the Civil Procedure Rules No. 49 of 2002 and it was clear that in accordance with the application to show cause under that Rule, the Defendant had breached various Court Orders numbering 9, and on the date of the application, had still neglected to provide sworn and signed answers to written questions or sworn statements in response to those of the Claimant and had failed to pay wasted costs as ordered on 28 February 2005. No cause was shown and judgment for liability was entered accordingly. Costs were awarded for the Claimant against the Defendant both on the claim and the counterclaim. The counterclaim itself was dismissed. The Defendant was granted leave to apply to file and serve any sworn statements in response on 14 days notice but no application was made and no sworn statements were ever filed by the defence. Matters then progressed to a hearing to assess quantum and the Defendant did not attend, despite having been notified of the hearing date by counsel for the Claimant and by having copies of the last two sworn statements on behalf of the Claimant faxed to it.

CLAIM

The claim was for damages for unjustified dismissal involving certain entitlements by way of salary and benefits from the time the Claimant was barred from his work place on 20 February 2003 until termination of his 3 years contract on 20 November 2004, being a period of 21 months, less any amount paid to him by way of salary, severance and benefits from the alternative employment which he undertook with Pura Cocoa for a period between 1 August 2003 and 23 November 2004. In addition, the Claimant sought damages for the manner of his dismissal together with damages for loss of reputation, pain, suffering and humiliation and damages for slander.

In submissions the total claim amounted to VT19,820,109.

FACTS

It seems that the Claimant had been almost continuously employed by the Defendant from 2 May 1990 until 3 November 2001. At that stage under an employment contract (Annexure "A" to the sworn statement of Claimant of 26 July 2005) he was employed for 3 years in the position of General Manager. Prior to his employment as General Manager, the Claimant had been the accountant and executive member of staff of the Defendant for many years. In those capacities, he had attended board meetings and occasionally acted as General Manager. He deposed that the position of General Manager was subject to political pressure but that he was prepared to take that on.

When he became General Manager, copra prices were low and the payments by the Defendant to growers were low. This was subject to pressure from growers for higher copra prices and a decision was made by the Board to raise the local prices of copra to a figure which was higher than it could be resold for. The Claimant advised the Board that this would be disastrous but his advice was ignored and the Minister and then Chairman of the Board make statements to the media that the financial problems were caused by mismanagement. In addition a reorganization of the affairs of the Board involving reducing staff levels by way of restructuring was decided upon. Legal advice from George Vasaris & Co was obtained (see annexures "L" and "R") whereunder existing staff would be paid out (including their redundancy) then some of them re-employed at lower salary levels.

The Claimant deposed that his actions followed the legal advice from George Vasaris & Co. and his actions were subsequently vindicated after an inquiry by the Ombudsman confirmed that he was satisfied that the Board and Management of the Defendant did not act unlawfully in relation to staff payouts nor was there evidence of any breaches of the Leadership Code Act (see exhibit " C" ). The Claimant, having been given late notice of a Board meeting on 20 February 2003, was excluded from attending in relation to discussions of general items 5 and 6 and then later received a suspension letter dated 20 February 2005. Unfortunately a copy of that letter was not exhibited by the Claimant. Thereafter the Claimant was dismissed from his employment despite his lawyer not receiving information about the nature of what he was being charged with nor given time to obtain proper advice and time to prepare.

FINDINGS AND LAW

As the Defendant has taken no steps to defend the claim the Court must regard the dismissal of the claim as being unjustified. The Claimant must be entitled to his salary, benefits and severance for the period he was barred from his work place on 20 February 2003 until the expiry of his contract on 20 November 2004 less, by way of mitigation, the amount received from his other employment during that period which has been quantified in the submissions on the assessment of damages.

As to additional damages for the manner of his dismissal, the Court of Appeal said in Melcoffee Sawmill Limited & Niel Croucher v Jack George [2003] VUCA 24 Civil Appeal Case No. 18 of 2003:-

"There was a paucity of evidence at the hearing as to this (loss of reputation and pain, suffering and humiliation or the like) but common sense dictates that the Respondent suffered distress beyond that usually occasioned to someone in the sudden and unexpected termination of relatively long standing employment."

The Court went on to say: -

" … we are of the view that at common law there should be some recompense to an employee who has been unjustifiably and unexpectedly dismissed in a way that that the Respondent was.

The Courts must be seen to mark their disapproval for bad business practices and unacceptable summary dismissals of the kind demonstrated in this case. However, because of the lack of specific evidence adduced in this case, and because of the other factors already referred to, we consider that any award of damages to the Respondent in these circumstances, should be nominal and we assess such damages in the sum of VT30,000.

The award of VT300,800 for loss of reputation made by his Lordship cannot stand, as there was no evidence to support it." 

In Vanuatu Maritime Authority v Bani Timbacci [2005] VUCA 19; Civil Appeal Case No. 24 of 2005, which sets out the appropriate approach by the Courts in relation to awards for unlawful dismissal, the Court of Appeal awarded VT50,000 for damages for the manner in which the Respondent was summarily dismissed.

In this case, contrary to the situation in the Melcoffee and VMA cases, there was significant evidence adduced by the Claimant and his wife as to the flow on effects of the dismissal and its manner, which demonstrated wider hurt and humiliation and the difficulties experienced in obtaining similar employment. (See sworn statements of 3 March 2006). After all, the Claimant had had longstanding employment with the Defendant for nearly thirteen years and was one of the most senior executives. He was not accorded a hearing. No details appear to have been given on the evidence for the charges levied against him and no reasons were given for his dismissal. In all the circumstances I am of the view that because of that evidence and the circumstances an appropriate award is VT500,000 and I consider that the amount claimed of VT1,500,000 is, as the Court of Appeal said in the Vanuatu Maritime Authority case, "on the high side".

As to the damages for slander, I am not satisfied that the Claimant has made out his case for such damages on the balance of probabilities. It is accepted that the Defendant has ultimately taken no steps to defend this action, but the Court must nevertheless be satisfied that the Claimant has made out his case to the requisite standard.

The basis of the claim under this head is set out in paragraphs 16 - 18 of the further amended statement of case as follows:-

"B.	GENERAL AND AGGRAVATED DAMAGE:

(i)	At the time of the termination the Defendant's economic performance was extremely poor because of a decision forced upon it by the Government pursuant to which the VCMB had, for some time, been purchasing copra for more than they could sell it.

(ii)	There was much publicity concerning the financial difficulties of the Defendant at the time and much criticism in the Press levelled at the management of the Defendant 

(iii)	The fact that the Claimant was dismissed for misconduct from such a senior position caused him great distress and humiliation both as to how it reflected upon him personally but also for how he felt that it affected his family

(iv)	It also greatly affected his reputation and chances of obtaining an equivalent position which he has not been able to achieve and, at his age, is unlikely to achieve in the future.

(v)	The above distressing effects have been greatly aggravated:

(a)	By the public outcry referred to in (i) above, about the financial performance of the d4efendant and the fact that the Claimant's alleged misconduct has been that he caused the VCMB a VT67 million loss, and

(b)	By the Defendant's wide publication to the press of the dismissal and the reasons for it.

16.	On several occasion between 25 February, 2003 and 7 March, 2003 the Defendant made publications concerning the Claimant.

PARTICULARS

(i)	The Publications were oral and made by the Defendant's Chairman of Directors, Mr. Gilbert Norman.

(ii)	The publications were combinations of words to the following effect:

(a)	He was guilty of mismanagement of the Defendant's affairs and had caused loss to the Defendant.

(b)	That he was responsible for a staff redundancy pay out in the sum of VT67 million which should not have been paid and was therefore a direct loss.

(c)	That he had been asked to come before the Defendant's Board to explain these matters but had failed to do so.

17.	The said publications were made to agents of the Press in Vanuatu with the intention that they be published in the media.

18.	The publications were published in local radio and newspapers.

19.	The said publications were defamatory of the Claimant in both his business and his general reputation.

PARTICULARS

(a)	Business Reputation:

The Claimant enjoyed a very senior managerial position being the most senior manager of a large statutory corporation and the said publications were injurious to his business reputation in that, in their natural and ordinary meaning, they are widely understood to mean:

(i)	That he was very bad at his job as a manager

(ii)	That he caused very great financial losses to his employer as a result of his inability to manage

(iii)	That he considered that his position was indefensible

(iv)	That he was contemptuous of his employer and cared so little about his mismanagement and the losses he had caused that he didn't even bother to try to explain it to his employer

(b)	General Reputation:

He said publications are injurious to the Plaintiff's general reputation in that, in their natural and ordinary meaning they are widely understood to mean that:

(i)	As an earner of money for himself and his family he is a failure, and

(ii)	He has very little respect for others in that, even when he does something wrong or makes a mistake that affects them, he does not consider that he should offer any explanation

18.	As a result of the said publications the Claimant has suffered loss and damage

PARTICULARS

(i)	The said publications have, as was intended by the Defendant, been widely disseminated in the media.

(ii)	As a result the Claimant was unable to obtain employment until August 2003 and then the employment was not at the same level and much more poorly paid.

(iii)	The Claimant's losses, are as set out in paragraph 15."

For a claim for defamation to succeed the Claimant must prove:-

(1)	That the words complained of were untrue;

(2)	That they were published maliciously; and

(3)	That he has been caused special damage.

The Claimant referred to the defamatory publication in paragraph 19 of the Further Amended Statement of case and sought damages for slander in his claim. Generally, an action for libel is concerned with the publication of defamatory matter which is in writing or some other permanent form whereas the action for slander is concerned with the publication of defamatory matter by word of mouth. However, the exact dividing is not clear. Here it seems to be alleged that the alleged published libel in the newspaper articles were caused by the libel of the Defendant. However, there is no evidence as to who actually spoke the alleged slander and whether or not that person was acting on behalf of the Defendant when he did so.

It was alleged that the Defendant actively publicized the dismissal and the reason for it. There is simply no evidence to substantiate that allegation and in addition careful perusal of the publications which were annexed to the sworn statement of the Claimant of 26 July 2005 (see exhibits D, E, F1, F2, G, H, U and the final one dated 6 January 2006) do not refer to the Claimant by name and to infer that the articles complained of either identify the Claimant particularly or impinge upon his reputation or standing is drawing far too long a bow. There is, in my view, no inference or implication against the Defendant himself by the published words. The articles are too general to allow that nor do the words bear upon the Defendant by innuendo. I do not consider that ordinary people would draw the adverse inferences against the Claimant that he alleges. I am not satisfied that it has been proved that the words were untrue nor that they were spoken maliciously. It is also significant to note some of the newspaper articles exhibited relate to the Claimant putting his side of the argument.

In summary, I am not satisfied that the Claimant has made out his case for any damages against the Defendant on the basis of slander or defamation. The natural and ordinary meaning of the articles do not relate to the Claimant specifically and in fact placed a large amount of the blame on the then Board itself. The Claimant has simply not made out his case under that head.

SUMMARY OF AWARD

The quantum of the Claimant's judgment from 20 November 2004 is based as follows, in accordance with the further submissions of his counsel, for the period from the date of exclusion from his employment on 20 February 2003 to the end of his contract on 20 November 2004, namely 21 months. I note that the Court was not asked to employ the multiplier for severance under s.56 (4) of the Employment Act [CAP. 160]

CLAIM

Salary entitlement
(21 months at VT350,000 per month)	
VT7,350,000	
Severance (3/10/01 - 20/11/04)	VT547,847	
Leave	VT668,182	
Sick leave	VT584,659	
Accommodation	VT525,000	
VNPF entitlement	VT441,000	

Total:	--------------------
VT10,116,688
--------------------	

Less benefits from Pura Cocoa in mitigation		

Salary 	
VT1,566,667	

Severance	
 VT65,279	
Annual leave	 VT71,214	
VNPF	 VT94,000	

Total:	--------------------
VT1,797,160
--------------------	
		
Claim:
Less:	VT10,116,688 
VT1,797,160
--------------------	
Subtotal:	VT8,319,528	
		
Plus damages for manner of dismissal (as above)
	 VT500,000	

Total:	--------------------
VT8,819,528	
	============	

JUDGMENT

Accordingly I quantify the judgment of 31 January 2006 in the sum of VT8,819,528 and award costs to the Claimant against the Defendant for the quantum hearing on a standard basis as agreed or as determined by the Court.

I set an enforcement conference for 8am on 17 July 2006 and direct that a responsible officer of the Defendant must attend the conference to advise how the judgment sum will be satisfied.

Dated AT PORT VILA on 12 June 2006

BY THE COURT

P. I. TRESTON
Judge