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Ferry v Republic of Vanuatu [2016] VUSC 119; Civil Case 258 of 2014 (3 June 2016)

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

Civil Case No.258 of 2014

Coram: Justice D. V. Fatiaki

Counsels: Ms. P. Kalwatman for the Claimant

Mr. S. Kalsakau for the Defendant

Date of Judgment: 03 June 2016.

JUDGMENT

1. In this action the claimant seeks various entitlements under the Employment Act for unjustified dismissal including, three (3) months’ salary in lieu of notice of termination and severance allowance for 12 years of continuous employment between 2000 when the claimant was first appointed an electrician in the Public Works Department and then in 2010 the claimant was appointed auto-electrician, the position he held until his dismissal in January 2013.
   
2. The claimant’s dismissal letter is dated 29 January 2013 and provides the following reasons:
   

“1. There was evidence that you continue or regularly take 2 – 4 days absences without justification;

2. It is found that the issue of lateness and absences has been brought to your attention verbally and during staff general meeting and that you are also advised that if you continue to be absent from duty this will result in disciplinary action;
   
3. It was found that there was no medical certificates to accompany or explain your absences;
   
4. Further on it was said that you did not advise the office that you are taking time off so that other officers can be allocated to dealing with urgent tasks otherwise left incomplete;
   

All the reasons listed and your conduct of regular non-attendance at work, practiced over long period, interfered with the due and proper performance of your duty and is said to amount to Serious Misconduct thereby warranting the termination of your employment of service from the Public Service pursuant to Section 29 of the Public Service Act”.

3. The claimant pleads that his dismissal was unlawful and unjustified because he was not given any warning or notice before termination or paid salary in lieu of notice nor was he given an opportunity to respond to the allegation(s) laid against him and further, there was no good cause for his termination. The particular entitlements claimed (excluding notice and severance) are:
   
   • Unpaid annual leave – VT53,320;
   • Outstanding Acting Allowance – VT600,000;
   • Outstanding salaries – VT780,000.
     
4. The claimant’s evidence in respect of the above claimed entitlements (which are denied), was a bare assertion of non-payment unsupported by any independent documentary evidence such as an acting appointment letter, pay slips, or gazetted salary scales all of which would have been readily available. In the result the claimant has failed to establish those claims and they are accordingly dismissed.
   
5. In its defence the defendant relies on Section 50(1) and (4) and Section 55(2) of the Employment Act as well as Section 29(1) of the Public Service Act [CAP. 146]. Reference is also made to three (3) warning letters issued to the claimant in 2001, 2007 and 2012 all detailing the claimant’s continued absences from work without approval or medical certificate for periods ranging from a couple of days to 24 ½ days in 2007 and the defence avers the claimant was dismissed for “serious misconduct” after a Discipline Report was provided to him.
   
6. In this latter regard it is undisputed that after the claimant’s suspension on full pay on 6 August 2012 he was provided with a Discipline Report on 24 October 2012 requesting his response within 7 days to an allegation of being “continually absent from work even though you have received several warning letters” that were attached to the Report.
   
7. On 29 October 2012 the claimant returned the Report partially accepting the allegations and furnishing a written response with a medical certificate for his latest absence from work between 31^st July to 3^rd August 2012 because of severe eye infection secondary to two (2) battery explosions that occurred in March and June 2012. For completeness the claimant also underwent an eye operation in October 2012 and received VT804,384 as compensation for his eye injury in May 2014 long after his dismissal.
   
8. The evidence in the case is comprised of the claimant’s sworn statement with annexures dated 6 April 2015 [Exhibit 1(A)] and a further response sworn statement filed on 1 July 2015 (Exhibit 1(B)]. For the defence, there is the sworn statement of Judith Melsul the Acting Secretary of the Public Service Commission dated 20 May 2015. Both deponents were cross-examined on their sworn statements.
   
9. In his pleadings, sworn statement, and under cross-examination the claimant accepted that he received at least three (3) warning letters, two for unapproved absenteeism and a third for assaulting a government official during working hours. He also accepted under cross-examination, that he was absent without approval for a total of 24 ½ days in the period January to June 2007. This was in addition to, the month long absence when he “walked out of the office intending to resign” and only returned to work at the request of his then superiors.
   
10. In this regard too the claimant’s response to the disciplinary charge is quite unhelpful and misconceived in that he raises numerous personal complaints of “political influence”; “housing issue”; “wife’s illness issue”; “Acting Position (Auto)”; “Allegations for Possessing government assets”; “My training issue” and “favouritism”. None of these could possibly provide a “valid excuse” or justify the repeated instances of unauthorized absences that occurred during the claimant’s employment and was properly rejected by the Public Service Commission.
    
11. In his sworn statement the claimant also expressed his concern that the earlier incidents of absenteeism and assault had been dealt with or had been “vacated” and should be “excluded” and not be used as an excuse to dismiss him or be brought up again in the Disciplinary Report. Unfortunately and as conceded by defence counsel, neither Section 50(5) of the Employment Act or “waiver” are pleaded as they should have been if it was being relied upon (see: Rule 4.2(1)(c) of the Civil Procedure Rules). In similar vein Section 20(2) of the Employment Act has not been pleaded as a bar to the claimant’s claim for “outstanding salaries”.
    
12. In any event, the defence case of “serious misconduct” is not based on a single, isolated incident of unauthorized or unjustified absenteeism but rather, on a course of conduct or employment history over an extended period of time after warning letters were issued and where the claimant had been counselled and urged to “minimize your absence”.
    
13. As was said by this Court in Isaiah v. Public Service Commission [2014] VUSC 77:
    

“... what amounts to serious misconduct in any given case must be determined on the facts and on the evidence in each individual case. Depending on the nature and frequency of the alleged misbehaviour and its duration or the amount involved, a single instance may be sufficient to constitute serious misconduct and justify the removal of the officer concerned or it may be established by a combination of lesser infractions over a period of time”.

For example, in J v. Public Service Commission [2009] VUSC 128 where a single act of not receipting VT100,000 was considered “serious misconduct” and in Public Service Commission v. Tari [2008] VUCA 27 where the Court of Appeal said:

“By itself being absent without leave for one day and the misuse of the government car on that single day would be unlikely to be sufficient. However, in combination with the constant misuse of the government vehicle over three months we are satisfied it was open to both the Commission and the Supreme Court to conclude this was “serious misconduct””.

Plainly “serious misconduct” may be comprised of frequent misbehavior over an extended period of time and need not be of the same kind or nature and may be taken “in combination”.

14. In State counsel’s submission the warning letters are an integral part of the claimant’s employment record, have never been expunged and were available to be relied upon so long as the claimant remained employed. As for “waiver” counsel submits that the existence of the warning letters is proof that the claimant’s earlier absenteeism had not been waived or ignored by the defendant. Indeed the warning letters clearly state that repetition of “(such) behavior ...” may lead to suspension and formal disciplinary action.
    
15. Equally, Section 29(1) of the Public Service Act provides that an employee may be dismissed “at any time for serious misconduct or inability” and when subsection (1) is invoked there is no need to refer the matter to a disciplinary Board for a hearing [see: Section 29(3)]. Section 36(1)(h) also provides that an employee commits a disciplinary offence who: “absents himself from his office or from official duties during hours of duty without leave or valid excuse or is habitually irregular in the time of his arrival or departure from his place of employment”.
    
16. In light of the foregoing I am satisfied that the claimant was advised of the allegation(s) being made against him, and further, that he was given the opportunity to respond to the allegation and, in fact, did so. The process was entirely consistent with the requirements of Section 50 of the Employment Act and no complaint can be made on that score.
    
17. Furthermore, given the finding that the claimant’s “... regular non-attendance at work, practiced over long period, interfered with the due and proper performance of (his) duty ...”, I am satisfied that the Commission was entitled to dismiss the claimant for “serious misconduct” based on the claimant’s adverse employment record and coupled with the latest instance of unauthorized absenteeism by the claimant between 30 April and 4 May 2012.
    
18. In light the foregoing the claim fails in its entirety and is dismissed with costs to be taxed if not agreed.
    

Dated at Port Vila, this 3^rd day of June, 2016.

BY THE COURT

D. V. FATIAKI
Judge.