NASSCORP v Banks [2014] LRSC 11 (16 January 2014)
NASSCORP v Banks [2014] LRSC 11 (16 January 2014)
The National Social Security Corporation (NASSCORP) by and thru its Director General of the City of Monrovia, Liberia, Republic of Liberia, APPELLANT v William T. Banks of the city of Monrovia, Republic of Liberia, APPELLEE
APPEAL
Heard: April 24, 2013 Decided: January 16, 2014
MR. JUSTICE JA’NEH DELIVERED THE OPINION OF THE COURT.
William T. Banks, appellee in these appeal proceedings and petitioner below, on July 11, 2008, filed a five count petition for enforcement of judgment before the National Labour Court for Montserrado County. In the petition, the appellee/petitioner informed the National Labour Court that the National Social Security & Welfare Corporation, appellant/respondent, failed to seek an appellate review of the Hearing Officer’s judgment rendered on May 29, 2008, consistent with section 203 of the Labour Practices Laws of Liberia. Section 203, aforementioned, essentially provides that any party aggrieved by a judgment entered by the Labour Ministry may appeal same to the Circuit Court by filing a petition for judicial review within thirty (30) days counting from the date of receipt by the party of said ruling.
The petition further averred that on May 29, 2008, Hearing Officer, Honourable Reginald W. Doe, handed down a final ruling adjudging the National Social Security & Welfare Corporation (NASSCORP) in violation of the Labour Practices Laws and directing therein that the appellee, employed by the appellant on March 1, 2007, as Personnel Fund Officer, with a monthly salary of US$200.00 (two hundred United States dollars), be reinstated, or in lieu thereof, be paid salary for twenty four (24) months with the further order that the appellee be reimbursed of the full amount he contributed to the Providence Funds, established and operated by the appellant institution. Counts four (4) and five (5) of the petition state in numerical order:
That from May 29, 2008, the date on which the Final Judgment in this case was rendered and copy thereof served on Respondent on the self-same day, up to the filing of this Petition, a period over and above forty-two (42) days, the Respondent has not filed and served a petition before this Honourable Court to review the Final Judgment of the Ministry of Labour. Attached hereto and marked as Petitioner’s Exhibit “P/2” is a copy of a certificate from this Honourable Court, in substantiation of the averment contained herein.
That based upon the averments contained in counts one (1) through four (4) above, Petitioner says that Respondent has failed, refused and neglected to pursue any appeal from the Final Judgment of the hearing Officer of the should be ordered enforced by this Honourable Court.
Wherefore and in view of the foregoing, Petitioner prays Your Honour for an order to the Ministry of Labour, ordering the Hearing Officer to resume jurisdiction over the Action of Unfair Labour Practices/Wrongful Dismissal, out of which this Petition grows, and enforce its Final Judgment of May 29, 2008; and grant unto Petitioner any other and further relief as Your Honour may deem just, legal and equitable in the premises.
Counsel for appellant filed an eight count resistance to the said petition, which states:
1. That the Petition of the Petitioner should be dismissed for reason that the Petitioner suffers waiver and lashes, in that, following the rendition of Judgment, the Respondent filed a Motion before the Hearing Officer on the 2nd day of June, A.D. 2008, praying the Hearing Officer to rescind its Judgment rendered on May 29, 2008, which Motion is still pending before the Hearing Officer undetermined. See copy of Respondent’s Motion to Rescind Judgment hereto attached and marked as exhibit R/1.
2. Respondent says that the Petition should be denied and dismissed for reason that, under our system of jurisprudence, a Motion is an application for an order granting relief to the main suit sought in the action or proceeding in which the Motion is brought, and when the said motion is duly served on the parties, such motion should be heard or disposed of before the trial of the main case from which the motion grows, as in the instant case. See copy of the Receipt of service acknowledged by Petitioners/Complainant’s Counsel hereto attached and marked as Respondent’s R/2.
3. Respondent says further that in keeping with the practice and procedure in this jurisdiction, the courts are under obligation and duty to hear and determine all motions filed before them before trial of an application of any party, except the court for justifiable reason elects to defer the hearing or determination thereof and this not being the issue in the case at bar, Respondent respectfully prays Your Honour to deny and dismiss the Petition pending the determination of the Motion to rescind before the Hearing Officer of the Ministry of Labour.
4. That as to Count One (1) of the Petitioner’s Petition, same presents no traversable issue.
5. That as to Count Two (2) of the Petitioner’s Petition for the Enforcement of Judgment, same is a complete fabrication merely intended to mislead this Honourable Court, for reason that Respondent’s Motion to Rescind Judgment is still pending undermined at the Ministry of Labour and there is need for the said Motion to be disposed of by the parties.
6. Further as to Count Two (2) of the Petitioner’s Petition, Respondent requests this Honourable Court to take Judicial Notice of the Minutes of these proceedings in the Ministry of Labour and also take into consideration the diligent attendance of Respondent’s Counsel at every stage of this matter from the conference level up to and including the time Complainant’s Counsel rested with the production of documentary evidence, and therefore Respondent respectfully prays this Honourable Court to deny Petitioner’s Petition for the Enforcement of Judgment and order the Motion to Rescind Judgment as filed by Respondent before the Ministry of Labour determine in keeping with law as practice in this jurisdiction. See Copy of the Minutes of the Hearing Officer and marked as Respondent’s exhibit R/3 in bulk.
7. That as to Counts Three (3) and Four (4) of the Petitioner’s Petition, same are without legal basis, for reason that, same will deprive Respondent its side of the case so as to render an impartial judgment. Therefore the claim of Petitioner is unmeritorious and legally defective, and therefore the entire Petition should be denied and dismissed.
8. That as to Count five (5) of the Petitioner’s Petition, Respondent says same lacks legal merits and therefore should be set aside and the case remanded to the Ministry of Labour to determine Respondent’s Motion to Rescind Judgment in the interest of transparent justice.
Appellee/petitioner filed reply to the resistance, essentially reemphasising and reconfirming the averments contained in the petition for reinforcement of judgment. He contended principally that having failed, neglected and refused to take advantage of the safeguards for the protection of its right, counsel’s claim that the appellant was denied its day in court was untenable; hence the resistance in its entirety should be dismissed.
Her Honor Comfort S. Natt, resident Judge of the National Labour Court Montserrado County entertained argument on the petition, the resistance filed thereto as well as the appellee/petitioner’s reply. Judge Natt, on July 11, 2008, granted appellee’s petition for enforcement of judgment, dismissing the resistance thereto. Judge Natt then directed that the final ruling rendered by the Hearing Officer on May 29, 2008, be enforced.
The appellant excepted to the Labour Court’s judgment ordering the enforcement of the Hearing Officer’s ruling and appealed to the Supreme Court. In a six (6) count bill of exceptions now before this Court, the appellant has assigned errors to Judge Natt’s ruling granting appellee/petitioner’s petition for enforcement of judgment as set forth below:
“1. That as to Your Honour’s entire Ruling confirming and affirming the Ruling of the Hearing Officer, Appellant says holding it liable for Unfair Labour Practices and awarding the sum of US$4,000.00 (four Thousand Dollars),the said Ruling/Final Judgment was made contrary to law practice and procedures and therefore very enormous despite the fact that appellant diligently attended every stage of the matter from conference level up to and including the time complainant counsel rested with the production of oral and documentary evidence without missing a single day, all of which was argued before Your Honour and supported by the minutes from the Ministry of Labour but was overlooked by Your Honour and [Your Honour] proceeded to render judgment against appellant and for which reasons appellant excepts and render this Bill of Exceptions for Your Honour’s approval.
2.Your humble appellant also excepts to the Final Judgment/Ruling because, appellant counsel also argued during the hearing of the petition of Enforcement of Judgment that he attended all of the conferences and hearings, and was on his way to the hearing [as per] the Notice of Assignment of May, A.D. 2008, which [hearing] was scheduled for the 29th day of May 2008, but due to sudden illness, an unexpected stomach problem, appellant’s counsel could not continue to the Investigation and the [he was] the only counsel in the office, at the time, [as] Counsellor Nancy F. Sammy was attending to a prior assignment on behalf of appellant and other clients of the firm and [therefore] could not be reached.
“3. And also Your Honour proceeded to render Final Judgment against the appellant despite appellant’s counsel strong argument that the appellee does not have standing because appellant did not attend only one hearing, and yet you elected to render Final Judgment against appellant for which appellant excepts and renders this Bill of Exceptions for Your Honour’s approval.
“4. And also Your Honour again erred by irregularly proceeding to render Final Judgment when Your Honour refused and neglected to take into account appellant counsel’s argument together with the relevant laws cited during the Hearing of the petitioner’s petition for Enforcement of Judgment without establishing the truth by conducting an investigation to satisfy the court but proceeded to confirm and affirm the Default Judgment of the Hearing Officer rendered hastily against the interest of your humble appellant, even though, the Hearing Officer at the Ministry of Labour, the appellee and Your Honour have all admitted that of the several notices of assignment issued, appellant’s counsel attended all but one, which is the May 20,2008 Notice of Assignment, for which appellant excepts and tender this Bill of Exceptions.
5. And also because Your Honour neglected, refused and inadvertently ruled against the appellant despite appellant’s counsel strong argument against the ills committed by the Hearing Officer as contained in the petition for the Enforcement of Judgment that appellant did not have his day in court under the due process proceedings which default judgment was rendered against appellant, but this court proceeded without investigation so as to establish the truth in keeping with the due process of law and yet Your Honour proceeded to render final judgment in favour of appellee and therefore appellant/defendant now excepts and renders this Bill of Exceptions for Your [Honour’s] approval.
6. And also because appellant says for all sundry exceptions to Your Honour’s erroneous ruling and decisions which are now matters of court’s record constituting strong basis for this Bill of Exceptions, appellant now files same for Your Honour’s approval pursuant to the doctrine of appeal
In the opinion of this Court, the arguments set forth in the Bill of Exceptions raise two determinative issues, state thus:
(1) Was the Hearing Officer justified in granting default judgment under the facts and circumstances recited in the records of this case?
(2) Does the filing of a Motion to Rescind Final Ruling before Labour Hearing Officer toll the time period prescribed by statute for the filing of a petition for judicial review?
We will revert to the case file in addressing the first issue whether the facts and circumstances justified the granting of default judgment.
The certified records transmitted to this Court reveal that the appellee, on January 14, 2008, addressed a letter of complaint to the Labour Ministry against the appellant, the National Social Security & Welfare Corporation. In the letter of complaint, appellee alleged that his services as Personnel Funds Officer were wrongfully terminated on November 26, 2007, based on the allegation that he unauthorizedly signed for and received checks representing refunds to employees of NASSCORP from Secure Risk Insurance Company.
Following series of failed attempts by the Ministry of Labour aimed at reaching amicable settlement, formal notices of assignment were issued on January 21, 2008, and duly served on the parties to commence regular investigation into appellee’s complaint. The service of notices of assignment on the parties was evidenced by the Returns filed by the Sheriff for the Ministry of Labour, A. B. Kanga. Thereupon, and under the gavel of Reginald W. Doe, Director/Hearing Officer, formal investigation into appellee’s complaint began on February 8, 2008, with both parties and heir counsels being present. Appellee took the stand and began deposing evidence in support of his complaint. Both parties and their lawyers were in attendance when the hearing resumed on April 14, 2008. Appellee Banks took the witness stand and testified in his own behalf. Counsel for appellant thereafter began cross examination of the witness. The cross examination exercise was to continue at the next hearing. Notices of assignment were again issued and duly served on the parties for the resumption of the hearing on April 25, 2008. Counsel for appellant resumed cross examination of the witness at scheduled subsequent hearings had on April 25, 2008 and May 8, 2008, respectively. Appellee thereafter rested evidence following which the Hearing Officer noted as quoted: “Due to time factor, the trial of [this] case is suspended pending regular notice of assignment at which time defendant management if requested [may] take the witness stand to testify in her behalf. And it is hereby so ordered.
From a review of the trial records, clearly appellant does not deny that it duly received the notice of assignment, dated May 20, 2008, for resumption of the hearing on May 29, 2008. The records before this Court however show that when the case was called on May 29, 2008, in keeping with the notice of assignment, neither the counsel for appellant nor the appellant management was present. We quote the relevant part of the Hearing Officer’s ruling on this point:
A notice of assignment was issued on May 20, 2008, for the continuation of the Investigation on May 29, A. D. 2008, at the hour of 1: P.M.; the said notice of assignment was served on the parties or their counsels as evidenced by signatures of complainant and Atty. Nancy Sammy, one of counsels for defendant. At the call of the case for today, (May 29, 2008), neither the defendant nor its counsels was present. Counsel for the complainant invoked the rule and laws and prayed for default judgment and/or abandonment of defence by defendant and requested this Investigation to be allowed to argue its side of the case, the complainant having rested with production of evidence. The said request was granted by this court and the complainant counsel proceeded to argue its side of the case.
Counsel for appellant has challenged the legal correctness of this ruling. It has been submitted that on May 29, 2008, same being the scheduled date for the resumption of the hearing, counsel became suddenly ill with an extreme excruciating stomach ache and that as a result, the lawyer could not reach the Ministry of Labour to attend the hearing. Counsel is therefore vigorously contending that his absence from the hearing on May 29, 2008, being primarily due to the sudden illness, and not a deliberate refusal or negligence by both the appellant and counsel to attend the hearing, could therefore not be an adequate legal basis for the hearing officer’s granting of a default judgment. Hence, counsel argued, the hearing officer’s conduct in granting default judgment under the facts and circumstances narrated, constituted reversible error, appellant’s lawyer has maintained.
Counsel has further submitted that throughout the hearing, appellant diligently attended every hearing, not absent from a single scheduled hearing, from the conference level up to and including the time the appellee rested with the production of oral and documentary evidence. Appellant has therefore questioned the legality of the hearing officer granting default judgment because appellant’s counsel did not show up on this one occasion, May 29, 201O.The core arguments articulated by appellant’s counsel both in the brief filed and propounded with forensic eloquence during his appearance before this bar, are aptly captured in the following submission:
Following several notices of assignment issued by the Ministry of Labor to hear the sides of the parties, the Hearing Officer without taking into consideration, the due diligence employed by the appellant, to ensure that all parties are heard, the co-appellee, hastily entered default judgment against your humble appellant without giving appellant the opportunity to present its side of the case. Appellant requests this Honorable Court to take judicial notice of the records in these proceedings that your humble appellant was not given its day in court.
This Court is certainly not persuaded by this line of argument. In the case The Management of GTZ v. Natt et al., the Supreme Court, speaking to this question, noted: The law requires a defendant in a labor case to be present at every stage whenever the case is assigned for hearing. In the event he cannot be present he must send a valid excuse, or his unexcused absence would be treated as abandonment of the cause. Supreme Court Opinion, October Term 2010. This holding has been articulated in numerous Opinions of this Court. Franco-Liberian Transport Company v. Bettie, 13 LLR 318, 324 (1958);Wilson v. Dennis, [1974] LRSC 52; 23 LLR 263 (1974); Inter-Con Security Systems Inc. v. Bormesahn et al.[1994] LRSC 41; , 37 LLR 689, 692 (1994).Further, section 8 of Decree # 21 promulgated by the Interim National Assembly (INA), in vogue in Liberia, stipulates, inter alia, as quoted: “If a defendant in a Labour case has failed to appear, plead, or proceed to trial, or if the Hearing Officer or the Board of General Appeals orders a default for any other failure to proceed, the complainant may seek a default judgment against the defendant.
We note here also that appellant’s contention that a party’s absence just one time from a scheduled hearing whether before the Labor Ministry, as in the instant case, or any court of law, provides no legal justification for the granting of a default judgment, and is certainly not a novel argument advanced for the first time before this Court. In Vijayaraman and Williams v. The Management of Xoanon, [2004] LRSC 4; 42 LLR 41 (2004), similar argument was raised before this Court. Speaking for this Court in addressing the issue of a party one time absence upon assignment from a scheduled hearing, Mr. Justice Korkpor, Sr. cautioned as follows:
All lawyers are required to be prompt and faithful in answering assignments for their clients and this Court will not accept nor encourage tardiness or absenteeism on a bare face explanation of unforeseen and unavoidable circumstances, especially from a law firm comprising several lawyers.
As to this specific issue of number of notice requirement, consistently alluded to by appellant counsel, Mr. Justice Korkpor sr., speaking for the Court without dissent, was unequivocal in the following words:
The appellee also contended that the practice and procedure before the Ministry of Labor is that a defendant must fail and neglect to appear for the continuation of hearing after the service of two notices of assignment upon him before the entry of default judgment. This Court says it is not aware of such practice or procedure and even if such practice or procedure does exist at the Ministry of Labor, it is contrary to the positions taken by this Court, as reflected in the laws regarding the entry of default judgments. Hence, for the avoidance of any doubt, we hold that there is no statute or case law in this jurisdiction that defines or determines the number of absences that warrants the granting of default judgment. Such a matter is left to the sound discretion of the court or administrative officer, as the case may be. And in this case, we find no reason to rule that hearing officer did not act soundly. ‘Id. 50.
We must similarly hold here that counsel’s argument that one absence from a scheduled hearing does not justify the granting of default judgment is without the pale of the law. Where a party has been duly notified through the service of assignment to attend a hearing, an absence thereat, without being duly excused, is adequate legal basis for invoking the appropriate rule and the granting by the hearing tribunal of default judgment. This is a matter of law.
We note here appellant’s further contention that counsel’s failure to attend the hearing on May 29, 2008, was the consequence of a sudden illness. This contention is also unacceptable in the face of the fact that the motion seeking relief from judgment for nonattendance on account of ill health was filed several days after the rendition of the hearing officer’s ruling; yet, appellant’s counsel failed and neglected to present any medical evidence to substantiate that he, counsel was ill and unable to attend the scheduled hearing on May 29. 2008. However, no such evidence was presented by counsel for the appellant though it is an elementary principle of law in this jurisdiction that a party seeking a continuance of a trial on account of poor health shall proffer proof to warrant postponement. In the absence of such evidence to constitute a valid excuse, as was done in the case at bar, a tribunal of justice is certainly under no duty to postpone a scheduled hearing. Where a party alleges his inability to attend a scheduled hearing due to poor health, a medical certificate clearly demonstrating such state of health constitutes a necessary element of a valid excuse to permit a continuance. This being a rudimentary principle of law, we have determined that it serves no useful purpose to further multiply authorities on this point. We must emphasize that this was particularly crucial at this juncture, where the motion was filed subsequent to the hearing during which the default judgment was granted. But there is also another factor for consideration. The appellee/plaintiff has rested evidence. It was the appellant/defendant’s time to present evidence in its defense. One would conclude that counsel would have contacted the appellant/defendant institution to have its witnesses ready to testify in its defense. Most likely, one of such witnesses would have been an official of the appellant/defendant institution, sufficiently informed about the subject of the hearing. Hence, the appellant/defendant witnesses having notice of the hearing would have been present to give testimony. Had any of them been at the Ministry at the time for the hearing, it is doubtful that the appellee/plaintiff would have applied for a default judgment; and even if they did make such application, it is also doubtful that the hearing officer would have granted the application. No excuse was provided as to why the appellant/defendant or its witnesses were not at the hearing if appellant/defendant institution intended to produce evidence as its counsel sought to impress upon the Court. If appellant’s counsel got suddenly ill as alleged, in such instance, the appellant’s witnesses would not have been aware and its witnesses would have been present at the investigation and requested the Hearing Officer for extension of time as they tried to communicate with their lawyer. We hold the view that if the intent of counsel for appellant or the appellant institution itself had been truly manifested, the alleged sudden illness of counsel would not have prevented the appellant/defendant or its witnesses being present at the investigation even if the hearing was not held because of the illness of counsel. We also do not believe that counsel would have advised the client or the witnesses not to attend the investigation mostly because counsel himself could not be present. The minimum we would have expected counsel to do would have been to advise his client or its witnesses to alert the hearing officer of his sudden illness. We cannot but conclude that under the circumstances there seems to have been a clear demonstration of gross negligence on the part of appellant’s counsel.
Under the circumstances herein narrated, we are in perfect agreement with the ruling entered by the Hearing Officer, granting default judgment. We equally reject any and all arguments presented by the appellant attaching errors to the National Labor Court’s affirmation of the ruling granting default judgment, as same is fully supported by the laws controlling. Hence, we cannot, and should not disturb that ruling.
Notwithstanding, the appellant, both in its returns to the petition for enforcement of judgment as well as its brief filed before this Court has alleged that the final ruling of the hearing officer, dated May 29, 2008, ordered enforced by Judge Natt of the National Labour Court, was not based on the evidence required in such cases.
Therefore, in order for this Court of last resort to proceed properly to affirm Judge Natt’s final judgment, ordering the enforcement of the hearing officer’s ruling, we find ourselves under legal obligation to scrutinize and examine the evidence upon which the Hearing Officer predicated his ruling. We must satisfy ourselves that indeed a case was truly made by appellee/plaintiff to warrant the enforcement of the hearing officer’s final ruling. This position is consistent with the proper exercise of appellate authority of final arbiter conferred by law on the Supreme Court of Liberia. This Court is vested with the authority to affirm, modify, reverse and remand any case or enter that judgment which should have been properly rendered below by any court of law, quasi-judicial forum or administrative tribunal in this jurisdiction. Richid v. Dennis et al.[1986] LRSC 33; , 34 LLR 272, 278 (1986); Catholic Relief Services v Brown et al.[2005] LRSC 5; , 42 LLR 400 (2005); Harris v Cavalla Rubber Corporation, Supreme Court Opinion, October Term, 2012. Additionally, this Court has held that a trial court or administrative body in default hearing must ensure that the plaintiff establishes proof of his claim. Baky v. George et al.[1973] LRSC 38; , 22 LLR 80, (1973).
We must note here that every tribunal devoted to administering justice has an inherent authority to ensure that the judgment it seeks to enforce is within the limits of “basic fairness of adjudication. Enforcement of any judgment must include safeguarding the fundamental principle of fairness and equity. In ordering the enforcement of a judgment, every court of justice is duty bound to exercise judicial authority within the orbit of reason and sound judgment, supported by evidence. The case Franku et al. and Dickerson v. Action Contre La Faim, [1999] LRSC 1; 39 LLR 289, 297 (1999), further supports this position. In that said case, appellants obtained a judgment in which the Hearing Officer awarded them roughly US$20,000.00 (twenty thousand United States dollars) as overtime pay. Said judgment was reversed by the Labour Court for lack of evidence. The Supreme Court in affirming the Labour Court’s ruling observed in that Opinion by Mr. Justice Sackor that there can be “[no] final judgment in such a case, rendered upon judgment by default, without having had proof of the allegations set out in the pleadings.” Ibid 296.
Against this background, let’s take a keen look at the evidence deposed by appellee/complainant during the hearing at the Ministry of Labour. The certified records before this Court reveal that the appellee took the witness stand and testified as summarized herein: that he was employed by the appellant institution, National Social Security and Welfare Corporation (NASSCORP) on March 1, 2007, as Personnel Funds Officer; that he earned a monthly salary of US$200.00 (Two Hundred United States dollars); that appellee received a letter few months thereafter, dated November 26, 2007, though received and served on appellee on November 28, 2007, terminating his (the appellee’s) services; that the action to dismiss appellee was taken, according to the appellant’s letter addressed to the appellee, as a result of appellee’s unauthorized signing for, and receiving on November 23, 2007, and withholding until November 26, 2007, checks issued to pay refund to Secure Risk Insurance Company’s employees.
The appellee, further testifying before the Hearing Officer, stated:
Mr. Hearing Officer, signing and receiving checks as refund payment to employee of NASSCOPRP was one of my function which I performed on several occasion prior to my dismissal. Said checks were paid to the employees named on the checks. Mr. Hearing Officer, the real reason for my termination by (NASSCORP) Management I believe is that I participated in a strike action. As evidence, (NASSCORP) Management wrote a letter dated November 23, 2007, which Management accused me of signing the attendance rooster on November 20, 21 and 22nd , 2007. This letter was received by me on the 21st of November 2007, informing me that three (3)-day pay was deducted from my November 2007 salary. That allegation by Management is not true and management illegally deducted three (3)-day pay .
Appellee presented and testified to a number of evidentiary instruments. These included his letter of employment, the letter of his termination, the communications from his (appellee’s) counsel addressed to the appellant challenging the legality of the termination and demanding his reinstatement and the appellant management’s response thereto, cash and bank payment vouchers from Secure Risk as well as the appellee’s letter of complaint filed before the Ministry of Labour. These instruments were testified to, marked, confirmed, reconfirmed and subsequently admitted into evidence. Our review of the instruments admitted into evidence seems to support the following conclusions:
A. That appellee, William T. Banks was employed by the appellant institution, the National Social Security & Welfare Corporation, on March 1, 2007. His letter of employment was respectively signed by appellant’s Human of his employment by the appellant as Personnel Fund Officer, with an annual remuneration of US$2,400.00 (two Thousand Four Hundred United States Dollars).
B. On November 26, 2007, the appellant institution summarily terminated appellee’s services on account of what it termed as “Serious and Gross Breach of Duty in violation of Section 1508, Subsection 6 (c), of the Labour Practices Law of Liberia, as well as Article VIII, Section VII (b), (g) & (h) of the National Social Security & Welfare Corporation Revised Personnel Manual (1999)”. In the letter of termination, aforementioned, Appellant’s Human Resource Director indicated the grounds for the action as follows:
“While participating in the on-going strike action by some employees of the Corporation including yourself, you un-authorizingly went to the office of the SECURISK Insurance Company on Broad Street, Monrovia, Liberia, on Friday, November 23, 2007, where you signed for and received checks for refund to employees of the Corporation, which you kept in your possession until today, Monday, November 26, 2007, without delivery to the Office of the Human Resource Director until you were searched for by the security officer and brought at the Corporation’s premises before you reported said checks which you had in your possession.”
As if to further highlight the appellant’s legal reliance for the summary termination, the said communication accentuated the following:
Mr. Banks, the action taken by you on Friday, November 23, 2007, to have un-authorizingly gone to the SECURISK Insurance Company without delivery to the Office of the Human Resource Director is considered as a Serious and Gross Breach of Duty in violation of Section 1508 Subsection 6 (c) of the Labour Practices Law of Liberia, as well as Article VIII, Section VII (b) (g) & (h) of the National Social Security & Welfare Corporation Revised Personnel Manual (1999). Therefore, Management hereby terminates with immediate effect your services with the Corporation as of November 26, 2007 .
From inspection of the records, the evidence adduced at the hearing clearly established that the appellee was employed by the appellant institution with a monthly salary of two hundred United States dollars. His primary assignment as Personnel Fund Officer included collection and receiving checks from SECURISK, an insurance company.
Further established was that the appellee performed the job of Personnel Fund Officer collecting, receiving and signing for checks on behalf of the appellant institution over a period of nine (9) months, spanning from March to November 28, 2008. During this nine month period, there was no showing of any evidence that the appellee performed his duty with anything less than diligence and dedication. Notwithstanding, the appellee was summarily dismissed on November 26, 2007, without the benefit of any warning, for reason appellant termed as “Serious and Gross Breach of Duty”. The “Serious and Gross Breach of Duty” appellant claimed as warranting the summary dismissal was that the appellee collected a number of checks on November 23, 2007, from SECURISK Insurance Company but failed to promptly report those checks to the appellant institution. From the certified records, it is apparent that the appellant’s action was based on the appellee’s collection of a number of checks on November 23, 2007, and his delivery of these checks to the appellant institution on November 26, 2007. We must emphasize here that there is no denial by appellant that on November 26, 2007, William T. Banks, the appellee, reported to, and the appellant institution received in full the withheld checks.
It is well to underscore at this juncture that the principal reason for the summary termination from the stand point of the appellant was the “unauthorized” collection of the checks as well as the failure by the appellee to promptly report those checks to the appellant. But appellant’s proposition by which it sought to justify its action to summarily terminate appellee’s services seems, in our opinion, to have no legal or legitimate basis.
C. It is worthy to note that the appellee, as the records indicate, did not act outside his duty when he received the checks in question on November 23, 2008. From our inspection, it is observed that November 23, 2008, was a Friday, the last official working day of the week. But the appellant seems to suggest that the appellee not reporting the checks on the same Friday, November 23, 2008, immediately after signing for them, constituted such gross breach of duty as to compel immediate termination of the appellee’s services. We wonder quite surprisingly as to how appellant reached this conclusion without the conduct of an orderly investigation to determine whether the appellee unreasonably, and without any justification, withheld the checks between Friday, November 23, 2008, and Monday, November 26, 2008. Was appellee investigation would have shown exactly what transpired. Not having conducted such important investigation robbed the action of the aid of the law and the appellee of due process right to which he is constitutionally entitled. Only a properly conducted investigation, consistent with the principle of due process of law, would have clearly demonstrated the exact time the checks were signed for by the appellee, whether the time appellee received the checks left him with adequate time to promptly report the checks to the appellant but inappropriately decided, to the contrary, to withhold them. What were the regulations, if any, on collection of checks received by appellant’s agents without time sufficient to report same to the appellant on a working day as Friday? Several questions were left unanswered by appellant’s hasty conduct to fire the appellee without affording him his constitutional right to an orderly conducted investigation.
We further observe from inspection of the certified records that Appellant NASSCORP has a duly constituted board of investigation mandated under its regulations to conduct internal hearing into grievances and complaints. Established by many similarly situated institutions, the primary objective of a grievance committee is to delve into complaints of the management against an employee or examine an employee’s complaint against the management. The conduct of such hearing by the Grievance Committee affords the parties, the party complainant as well as the party being complained against, an opportunity to be heard in an orderly proceeding; it indeed affords the complainant the opportunity to present evidence in support of his or her complaint. It equally gives the party defendant the occasion as well to appropriately defend itself by confronting witnesses presented against him/her and to further present evidence in its own behalf. While the records show that such a grievance body existed in the Appellant institution, yet, the Appellant Management elected not to refer this matter to that internal investigation process. Without any inquiry by the grievance committee, or by any other properly constituted body, into the charge of Gross Breach of Duty, levied by the appellant management against the appellee, the appellant hastily and summarily proceeded to terminate the appellee’s services.
That NASSCORP had an internal investigation body which, it turned out, was never referred to as illustrated by the questions posed by appellant’s counsel to the appellee during cross examination, recorded on the minutes of Thursday, May 8, 2008, Hearing at the Ministry of Labour:
Q. Mr. Witness, on the cross of April 25, 2008, in your answer to a question you were asked to tell this investigation why management deducted three days from your salary you answered and said “I do not know. By that answer, did you enquire from management why the three-day pay was deducted from your salary?
A. No; because I received the letter deducting my salary on the 27th of November, 2007, and I was dismissed the next day.
Q. Mr. Witness, by that answer, did you refer the matter of the deduction of your salary and dismissal to the grievance committee to conduct investigation in order to resolve the conflict between you and the management?
A. No; I took the case to my lawyer to settle it with the management. But management refused to listen to my lawyer.
This Court, vested with the authority to do what the Labour Court should have properly undertaken has therefore examined the quantum of the evidence the appellee deposed at the Labour Hearing. Predicated thereon, we are convinced that the conclusion reached by the Hearing Officer is justified by the evidence presented. Both the finding by the Hearing Officer holding appellant in violation of the Labour Practices Laws and therefore awarding appellee 24 (twenty four) months salaries in the amount of USD4,800.00 (four thousand eight hundred United States dollars), in lieu of reinstatement and the reimbursement of appellee of all contributions made to the Providence Fund created by the appellant, seem supported by the evidence introduced by the appellee in these proceedings. From our extensive review of the transmitted records, we have found no evidence to support any findings to the contrary. And this Court so holds.
The second question to which this Court has been urged to direct its critical examination is generated by the following facts:
On May 29, 2008, the Hearing Officer entered a final ruling in the case of unfair labour practice adverse to the appellant, the National Social Security and Welfare Corporation (NASSCORP). The appellant was absent from the scheduled hearing of May 29, 2008, resulting to the granting of a default judgment, production of evidence by the applicant in support of its claim and the rendition of the May 29, 2008 final ruling.
It is not in dispute that Mr. Emmett Freeman of the Jones & Jones Law Firm, legal counsel for the appellant, was duly served and did sign for a copy of the said final ruling of May 29, 2008, at the hour of 4:00 P.M. Six days after receipt of the final ruling, the appellant, on June 4, 2008, proceeded to file a motion before the Hearing Officer at the Ministry of Labour a motion to rescind the May 29, 2008 final ruling. In the motion, the appellant/movant reiterated its earlier argument that the rendition of default judgment was occasioned by misrepresentation as its absence from the hearing was due to sudden illness. No further action was taken regarding the motion to rescind filed before the hearing officer, Ministry of Labour.
On July 28, 2008, the appellee filed an eight count petition before the National Labour Court for Montserrado County for the enforcement of the May 29, 2008 ruling entered by the Ministry of Labour. As can be seen, the petition for enforcement of judgment was filed exactly sixty (60) days after the appellant acknowledged receiving copy of the final ruling of May 29, 2008.
But the appellant also filed an eight – count resistance to the appellee’s petition. Appellant argued in counts two (2) and three (3) of the resistance as quoted:
2. Respondent says that the petition should be denied and dismissed for reason that under our system of jurisdiction, a motion is an application for an order granting relief to the main suit sought in the action or proceeding in which the motion is brought and when the said motion is duly served on the parties, such motion should be heard or disposed of before the trial of the main case from which the motion grows, as in the instant case.
3. Respondent says further that in keeping with the practice and procedure in this jurisdiction, the courts are under obligation and duty to hear and determine all motions filed before them before the trial of an application of any party, except the court for justifiable reason elects to defer the hearing or determination thereof and this not being the issue in the case at bar, Respondent respectfully prays Your Honour to deny and dismiss the petition pending the determination of the motion to rescind before the Hearing Officer of the Ministry of Labour.
The contentions raised by appellant, substantially captured in the counts quoted herein, generate the question whether the filing of a motion before a labour tribunal seeking to have same rescind its final ruling tolls the time period provided by statute for the filing of a petition for judicial review. Our answer to this query is no.
Section 203 of the Labour Practices Law of Liberia, Title 18, ( Liberian Codes Revised Vol. IV.) speaks to this issue. The provision provides in relevant part as follows:
Any respondent aggrieved by an order of the Ministry of Labour may appeal therefrom and the Ministry may obtain an order of the court for enforcement of its own order, in a proceeding as provided in this section. Such proceeding shall be brought in the judicial circuit of the Labour or Circuit Court of the County in which the Ministry held its hearing in the case, or, if the hearing was held in the Hinterland, in the judicial circuit of the Circuit Court most convenient to the place where the hearing was held. Such proceeding shall be initiated by the filing of a petition in such court, together with a written transcript of the record upon the hearing before the Ministry and the issuance and service of a notice on the Ministry and on the respondent of the time and place fixed for the proceedings. A respondent who institutes a proceeding under this section must institute it within thirty days after the service of the order of the Ministry. [Emphasis supplied].
The distinct wordings of the provision hereinabove leave no room for speculation in conveyance of the legislative intent. The provision mandates that a party discontented with a ruling rendered by a labour hearing officer must, within thirty (30) days, file a petition before the National Labour Court of Montserrado County, or a Circuit Court, if the labour complaint was heard outside Montserrado County. The petition shall encapsulate the factual and legal grounds for the party’s dissatisfaction to warrant the request for an appellate examination of the decision made by the labour hearing officer. With the filing of the petition for judicial review and the acquisition of jurisdiction over the parties, the court, in exercise of its appellate powers and authority, may, in its sound discretion, issue an interim order or restraining order to the labour hearing tribunal.
In the instant case, the transmitted records reveal that the hearing officer entered his final judgment on May 29, 2008. This fact is not in controversy. Also not in dispute is that a Mr. Emmett Freeman of the Jones & Jones Law Firm, legal counsel for the appellant, received copy of the said ruling and signed for same on May 29, 2008, the same date, at the hour of 4:00P.M. The records further indicate that on June 4, 2008, six days following appellant’s receipt of the May 29, 2008 ruling, counsel for appellant elected to file a motion before the Labour Tribunal. In that motion, counsel requested the hearing officer to rescind the May 29, 2008 ruling. In the motion, the appellant/movant reiterated its earlier argument that its absence from the hearing was due to sudden illness; hence the rendition of default judgment was induced by misrepresentation that appellant/movant neglected and further action in the matter.
Evidently, appellant failed to file a petition before the Labour Court in pursuit of an appellate review of the ruling entered by the Labour Tribunal. The conduct of filing a motion before the hearing officer to rescind a final ruling retains continuing jurisdiction in the Ministry of Labour over the case, the learned counsel for appellant seemed to have assumed. It would appear that the lawyer further believed also that the filing before a hearing officer of an application, such as a motion to rescind a ruling, effectively suspended the thirty (30) day time limit imposed by section 203 of the Labour Practices Law of Liberia for the filing of a petition seeking a review of the hearing officer ruling.
Such an assumption is misguided. At the expiry of the thirty (30) day time period sanctioned by law, the Labour Ministry loses jurisdiction over the case.
In Stubblefield et al. v Nasseh, [1976] LRSC 25; 25 LLR 24 (1076), the Supreme Court of Liberia acceded to the holding of the United States Court of Appeals, Tenth Circuit, enunciated in Sutherland v Fitzgerald, [1961] USCA10 94; 291 F 2d 846 (1961). Speaking for this Court in the Stubblefield case, Mr. Justice Henries speaking for this Court indicated that a motion for relief from judgment is analogous to a petition to vacate judgment and held that such a motion unless relief [sought] is granted neither affects the finality of a judgment nor suspends the operation of the judgment rendered. We believe that the motion filed by the appellant requesting the Hearing Officer was intended similarly to have him vacate the final ruling of May 29, 2008. This being the case, it follows therefore that the mere filing of the motion to rescind ruling, as was done by appellant’s counsel in the instant case, was but a meaningless gesture. Counsel’s election to file a motion before the Hearing Officer, in apparent preference to filing a petition for judicial review before the National Labour Court for Montserrado County, which is the tribunal vested with the authority to review, modify, set aside or remand decisions rendered by the Hearing Officer, seems ill advised. It is rudimentary to state here that ordinarily, an appellate review of proceedings had at the Ministry of Labour is sought by filing a petition, in 30 (thirty) days, for judicial review before the National Labour Court for Montserrado County, or, if outside Montserrado County, at a Circuit Court of the county where the labour hearing was had. Rather than following this clear course dictate of the law, counsel for appellant elected to file a motion before the hearing officer seeking, rather baselessly, to set aside the final ruling entered by the Hearing Officer.
We are therefore not persuaded by the appellant’s proposition that the filing of a motion before a hearing officer praying that same be rescinded or vacated suspends the operative effect of that final ruling. We have found no law to support such argument.
Concluding, we have determined that the case before us is a classic example of wrongful dismissal. This entitles the appellee to the award entered by the Hearing Officer. Chapter 1 section 9 of the Labour Law, entitled Wrongful Dismissal, provides as follows:
“Where wrongful dismissal is alleged, the [Labour Court] shall have power to order re-instatement, but may order payment of reasonable compensation to the aggrieved employee in lieu of re-instatement. The party against whom the order is made shall have the right of election to re-instate or pay such compensation. In assessing the amount of such compensation, the [Labour Court] shall have regard to: (a) (i) reasonable expectations in the case of dismissal in a contract of indefinite duration;(ii) length of service; but in no case shall the amount awarded be more than the aggregate of two years salary or wages of the employee computed on the basis of the average rate of salary received six months immediately preceding the dismissal …”
Wherefore and in view of the foregoing and all that we have narrated herein, and in keeping with the laws thereto applicable, the judgment rendered by the National Labour Court, ordering the enforcement of the May 29, 2008 final ruling of the hearing officer, being supported by preponderance of the evidence, needs not be disturbed. Accordingly, said ruling ordering enforcement by the National Labour Court for Montserrado County, is affirmed and confirmed.
The Clerk of this Court is ordered to send a mandate to the National Labour Court for Montserrado County to resume jurisdiction over the case and enforce this judgment. AND IT IS HEREBY SO ORDERED.
Judgment Affirmed.
Counsellor J. Johnny Momoh of Sherman & Sherman, Inc. appeared for appellant, while Counsellor Necular Y. Edwards of the Dean& Associates Law Office appeared for appellee.