NATIONAL PORT AUTHORITY, Appellant, v. J. DEWEY NIMELY and THE BOARD OF GENERAL APPEALS, Ministry of Labour, Appellees.

Heard December 2, 1985. Decided: December 18, 1985.

1. A breach of duty is a violation or omission of a legal or moral duty; the neglect or failure to fulfill in a just and proper manner the duties of an office or of a fiduciary employment.
2. An employer may dismiss an employee engaged for an indefinite period without notice, subject to payment only of wages due, where it is shown that the employee has been guilty of a serious breach of duty.
3. Serious breaches of duty within the meaning of the Labor Practices Laws of Liberia includes acts or violations specifically set forth in the Labor Practices Laws, lack of skill or manifest inefficiency of the employee which makes impossible the fulfillment of duties under the contract, and the commission by the employee of any other serious offense against his obligations under the contract.

The appellant, National Port Authority (NPA), appealed from a judgment of the Sixth Judicial Circuit Court confirming the ruling of the Board of General Appeals which held the appellant liable to the appellee for illegal dismissal.
The appellee, who had been employed with the appellant from December 1959 to January 1982, was suspended and later dismissed for overstepping his authority and engaging in adverse activities which resulted into substantial financial losses to the appellant. The dismissal was carried out after an investigation had substantiated that the appellee had committed the acts of which he was accused, including holding pilot slips in his desk drawers which should have been turned over to the billing section of the appellant company, under charging users of the NPA facilities, and signing pilot towage books which should have been signed by the pilots themselves.

The hearing officer of the Ministry of Labour had found for the appellee and ordered the appellant to pay to the appellee the sum of $66,500.00 or reinstate him to his previous position. On appeal, the Board of General Appeals had affirmed the decision with the modification that the award be reduced to $31,350.00.
The Supreme Court reversed the trial court, holding that the appellee had engaged in acts which, under section 1508(6)(c) vested in the employer the right to dismiss the employee and to award him compensation only for time served. The Court noted that the acts committed were not criminal in nature and that the appellant had not charged the appellee with the commission of a crime. However, the Court observed that the acts, not denied by the appellee, and which resulted into substantial financial losses to the appellant, did constitute a gross breach of duty as defined by the Labor Practices Law of Liberia, and therefore justified the dismissal of the appellee. Moreover, the Court said that as the appellee was employed for an indefinite period of time, he could under the circumstances be dismissed without notice. Hence, the judgment of the lower court was reversed.

Victor Hne appeared for the appellant. Gladys Johnson and Roland Barnes appeared for the appellee.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

J. Dewey Nimely was employed by the National Port Authority on December 8, 1959. At the time of his alleged wrongful dismissal, he was serving the company as an administrative officer in the Marine Department. According to the records of the cases Mr. Nimely, in holding this position of trust, was authorized to collect pilot launch slips from the pilots office and make a registration on a special form regarding berthing, sailing, shifting, and transfer of same to the billing section for charging.

In January, 1982, the management of the National Port Authority experienced a sharp fall in revenue, traceable to the Marine Department. On January 21, 1982, the NPA management ordered Mr. Nimely suspended from his duty pending further investigation. In the course of the investigation, in which Mr. Nimely participated, it was discovered that he had overstepped his assignment by unauthorizedly signing pilot launch slips in the space provided for the signature of the pilots. The investigation also revealed that he had billed the slips himself rather than forward them to the billing office for billing, and that he had withheld some pilot-towage books in his drawer, signed by him and not the pilots themselves. It was further discovered that as a consequence of appellee’s acts, the National Port Authority had suffered a substantial loss of income amounting to about $71,000.00.
At the end of the investigation, the NPA management, by a letter dated October 20, 1982, dismissed Mr. Nimely. The letter of dismissal is quoted herein below for the benefit of this opinion.

“Mr. J. Dewey Nimely

National Port Authority October 20, 1982

Monrovia, Liberia

Dear Mr. Nimely:

We refer to the suspension action taken against you by management pending a full investigation of the irregularities discovered in your area of responsibility.

The investigation has been concluded and the report reveals that:

1. Pilot slips from June and July 1981 were still being held in your desk drawers;
2. Pilot-towage slips from May, June, and September 1981 were still being held in your desk drawer;

100. Fifty-five (55) launch service slips covering hire of launch and tug boat services by users of the port were found to have been issued by you undercharging the users in disregard of the applicable port tariff resulting in a substantial loss of income to the National Port Authority. The discrepancy in NPA’s income as a result of this act of yours has been calculated at about $70,000.00;

4. Nine (9) pilot-towage books were discovered in your desk drawers signed by you instead of being signed by the pilots as required.

During the investigation, when you were confronted with these discoveries, you could not give any satisfactory explanation.

These are acts of a serious breach of duty under your employment obligations at the National Port Authority. Management views such acts by you with utmost serious concern, especially when you are a long service employee of the National Port Authority who is well acquainted with the policy and requirements of NPA in these matters and the substantial area of income with the operations concerned represents for the Authority at a time when the Authority should maximize its income in the light of its present financial difficulties.

Management therefore has no alternative but to terminate your services immediately consistent with your suspension until completion of the investigation.

Very truly yours,

Comfort Burphy

Personnel Manager, NPA

cc: DMD/Administration

cc: Managing Director

cc: Legal Counsel”
On the strength of the foregoing letter, Mr. Nimely decided to pursue an action of wrongful dismissal against the National Port Authority. He filed this complaint with the Ministry of Labour where it was investigated by its hearing officer who rejected the NPA management’s side of the matter and held for the complainant, awarding him the sum of $66,500.00, including pension benefits, salary for the 10 months of the suspension, and his salary for the month dismissed. Alternatively, the company was to have him reinstated. The hearing officer maintained that the criminality of Mr. Nimely’s conduct should have been proven before his dismissal.

Being dissatisfied with the ruling of the hearing officer, the National Port Authority appealed to the Board of General Appeals. The Board decided the appeal in favor of Mr. Nimely with the modification that since the Board had discovered that he had been paid his pension and had signed a release to the company on September 22, 1983, the award of the hearing officer was accordingly diminished to $31,350.00.
Still being dissatisfied, the National Port Authority petitioned the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, for a judicial review. In the ruling, the court rejected the contentions of the NPA management that Mr. Nimely committed a breach of duty. Consequently, it upheld the decision of the Board of General Appeals. It is from that judgment that the National Port Authority has come to this Court of last resort by this appeal.
The appellant has argued in its brief that the dismissal of appellee was lawful, the ground therefor being a gross breach of duty which had resulted in a loss of thousands of dollars in revenue in-take of the National Port Authority. It further argued that the suspension of appellee was lengthened in order to afford the company the necessary time within which to estimate the loss it had sustained, necessitated by the unauthorized acts of the appellee. Appellant also maintained that it was not afforded adequate opportunity to prove its case because of the stringent procedures adopted by officials of the Labour Ministry at the hearing of the case, a fact ignored by the Circuit Court. The appellant therefore prayed for reversal of the judgment below.
Appellee, on the other hand, maintained in his brief that his dismissal was wrongful since the allegations of appellant amounted to accusations of a criminal nature, requiring that his guilt be established beyond all reasonable doubt prior to his dismissal by the appellant.
From the foregoing facts and legal contentions, the salient issues requiring our attention are the following:

1. Whether or not the signing of the pilot slips and the pilot towage slips, their billing and the withholding of some others were the assigned duties of appellee?
2. What constituted the breach for which appellee was dismissed — was it the unauthorized signing and delay in forwarding the slips to the billing section or the loss of income sustained by the appellant?

3. Whether or not the acts of appellee complained of by the appellant actually amounted to a serious breach of duty under our laws for which an employee may be dismissed without notice.

We proceed, in resolving the above issues, by noting first that the issue that appellee was dismissed to avoid the payment of pension does not arise here, since evidence of payment made to the appellee is not raised as a point of contention, and since there is in the records a release issued by appellee to appellant on September 22, 1983.
Appellee was an administrative officer in the Marine Department of the appellant company. As earlier mentioned, in that position of trust, the appellee was entrusted with collecting pilot launch slips from the pilots’ office, and with making a registration on a special form of berthing, sailing and shifting, and transferring of same to the billing section for billing. However, in the course of time the company noticed substantial drop in revenue from a hitherto lucrative Marine Department. At an investigation in which appellee participated, it was discovered that he had overstepped his duties by unauthorizedly signing the mentioned pilot launch slips in the space provided for pilots. In particular, it was discovered that:

(a) Pilot slips from June and July 1981 were still being held by him in his desk drawer in September 1982, when he was suspended;

(b) Pilot-towage slips from May, June, and September 1981 were still being held in his desk drawers also;

(c) Fifty-five (55) launch service slips covering the hire of launch and tug boat service by users of the port were found to have been issued by appellee, undercharging the users in disregard of the applicable port tariff resulting in a substantial loss of income to the National Port Authority;

(d) Nine (9) pilot-towage books which were discovered to be held up in his desk drawers and signed by himself instead of being signed by the pilot as was required.

These acts were not denied by the appellee. Instead, he maintained that former or past harbor masters had authorized him to undertake the new role without the consent of the NPA management. He argued that in fact the entire Marine Depart-ment was guilty of irregularities. He also contended that in his case, certain former or past harbor masters, who are not in the country at the moment, had authorized him to sign the afore-mentioned slips in cases involving much smaller vessels, even though it was also discovered that he had also signed them in cases involving larger vessels.
In support of its assertion, the appellant management produced witnesses at the trial, including pilots, the harbor master, the director of security at the port, and the staff accountant and general supervisor of the billing section, all of whom testified to the truthfulness of appellant’s allegations against appellee. All the evidence, including the records of the company, revealed that only pilots were authorized to sign the slips in question. They also showed that billing was to be done by the billing section which controlled the accounts, and that the appellee was solely concerned with supplying the latter with vital information on the port users as well as ships, for use by the billing section in billing customers of the port. The appellee therefore had only two duties: (a) having the billing section informed of the vital statistics of the vessels using the port, and (b) forwarding to the Billing Section the slips and books signed by the pilots. The records show however that when the appellee billed the appellant’s customers, he undercut their bills and withheld the slips and books, thereby depriving the billing section of the right to raise lawful income for the appellant.
Next we consider what constituted the breach for which the appellee was dismissed — whether it was the unauthorized signing and delay in forwarding the pilot launch and towage slips to the billing section for billing, or the loss of income amounting to $71,000.00, sustained by the appellant.
In its October 20, 1982 letter of dismissal to appellee, the company noted that:

“Management views such acts by you with utmost serious concern, especially when you are a long service employee of the National Port Authority who is well acquainted with the policy and requirements of NPA in these matters….”

Further, in its brief and arguments, the company made it clear that appellee was not being charged with a crime, but rather that he was dismissed as a result of loss of confidence growing out of his failure to maintain the company’s trust in discharging his assigned functions. The appellant maintained that the appellee had recklessly performed important duties that were the prerogative of other employees to discharge.
The appellant management never accused appellee of embezzlement, or of personal benefits from his acts; all that was alleged and sought to be proven was that the unauthorized acts of the appellee caused a loss in income to the company and therefore constituted a serious breach of duty.
Considering the above, it is our candid opinion that the question of criminality does not arise to be proven by the appellant before it can be said to have legally dismissed Mr. Nimely. Definitely, the acts of appellee which were performed out of the scope of his authority were serious offenses under the contract, but in no way amounted to criminality.
Finally, let us consider whether the acts of the appellee, amounted to what can be considered a serious breach of duty under the Labor Law, for which an employee may be dismissed by management without notice and with payment only of actual salary due.
Black’s Law Dictionary defines a breach of duty in a general sense as any violation or omission of a legal or moral duty. More particularly, Black’s Law Dictionary describes a breach of duty as the neglect or failure to fulfill in a just and proper manner the duties of an office or of a fiduciary employment. BLACK’S LAW DICTIONARY235 (4th ed).
Mr. Nimely was employed by the National Port Authority on a contract for an indefinite period. Under the Labor Law, an employee hired for an indefinite period may be dismissed without notice under the following circumstances:

“5. Notwithstanding the provisions of section 1508 of this chapter an employer may dismiss an employee engaged for an indefinite period without notice, subject to payment only of wages due, where it is shown that the employee has been guilty of a serious breach of duty.

6. The following acts and violations shall be deemed to be serious breaches of duty within the meaning of the preceding section entitling the employer to terminate without notice or pay in lieu of notice contracts of employment for an indefinite period:

(a) any of the acts or violations specifically set in sub-section of this section;

(b) lack of skill or manifest inefficiency of the employee which makes impossible the fulfillment of duties under the contract;

(c) if the employee commits any other serious offense against his obligations under the con-tract.” (Emphasis added). Liberian Labor Practices Law, ch. 16, sec. 1508(6).
Both by Black’s Law Dictionary definition and the provisions of subsection “c” of the statute quoted above, the appellee com-mitted a serious breach of duty when he:

1. unauthorizedly signed pilot launch slips and books instead of leaving them to pilots to sign;
2. billed some of the slips and books himself instead of forwarding same to the billing section for proper billing; and

100. kept some of said slips and books in his drawer for over a year, rather than immediately forwarding same to the billing section for proper billing.

All of the acts enumerated above caused the National Port Authority substantial loss of revenue amounting to over $70,000.00.
Certainly, no reasonable person can doubt, in the circum-stances, that the appellee herein committed a serious breach of duty under his contract of employment which justified his employer in dismissing him promptly without notice, with payment only of salary due.
It is not difficult to see what under our law amounts to a serious breach of duty for which employee engaged for an indefinite period may be dismissed without notice, with payment only of salary or wages due.

The allegations against the appellee being true, they fall under the provisions of section 1508(6)(c) above, which says that “if the employee commits any other serious offense against his obligations under the contract” he can be dismissed without notice. Appellee, being employed for an indefinite period, fell under sub-section 6(c), emphasized above. As such, we need not further elaborate here on his acts which constituted the serious breach of duty for which he was dismissed.
From the foregoing facts and circumstances, as seen in the light of our law, we are convinced:

(1) That appellee did seriously violate his obligations under the contract by performing duties that were not his and leaving undone those which he ought to have performed.

(2) That to all intents and purposes, appellant company dismissed appellee for recklessly violating his assigned obligations, and not for the commission of any criminal acts.

(3) Finally, that the dismissal was in conformity with our Labor Laws and the appellant company cannot therefore be held liable for a wrongful dismissal of the appellee.
In view of this holding, the judgment appealed from is hereby reversed with cost against the appellee. And it is so ordered.

Judgment reversed.