THE MANAGEMENT OF LIBERIA KATOPAS FISHING COMPANY, Appellant, v. KLAUS D. MEYERS and LUIS ORELLANA, Appellees.

APPEAL FROM THE NATIONAL LABOR COURT, MONTSERRADO COUNTY.

Heard: January 26, 1995. Decided: February 17, 1995.

1. In labour cases, the finding of facts is the responsibility of the administrative agency and such findings are conclusive and not reviewable on judicial review.

2. Judicial review concerns with the application or misapplication of the law to the fact as found by the administrative forum.

3. Judicial review is ordinarily limited or confined to the records of the proceedings before the agency and for the consideration of questions of law or, to questions of law and the sufficiency of the evidence, or determining whether the action of the agency is legal or is in accordance with the law; or whether errors of law have been committed.

4. Questions of fact involved in a proceeding before an administrative agency are to be determined at least primarily, by the agency rather than by a Court; and in the absence of fraud, lack of jurisdiction, or arbitrary or capricious action constituting a denial of due process of law, the agency’s findings of fact, or decision of a question of fact, is to be accepted as final, binding, and conclusive, and may not be reviewed by a Court except to the extent that a constitutional or statutory provision makes it reviewable.

5. A court reviewing an administrative determination will not disturb the finding of facts by the agency because the finding and determination of fact questions is conclusively within the province of the administrative agency and therefore, such finding is final and binding except under certain situation.

6. An administrative agency’s findings as to the facts which are supported by substantial evidence, growing out of a hearing complying with the requirements of due process of law, are binding and conclusive, and may not be disturbed, set aside, or substituted by the court’s own judgment.

7. Where there is evidence of fraud or bias, or that the administrative agency did not act within its jurisdiction and authority, or that the findings were not made in compliance with law, or that they were not the result of fair determination, the findings of an administrative agency may be set aside.

8. 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. Labour Practices Law, Lib. Code 18A:1508.

9. Before one can maintain an action to avoid a settlement and recover a larger amount, he must return, or tender the sum received by him in the settlement. It is timely to do so when settlement in bar is filed.

This is an appeal from the ruling of the National Labour Court growing out of an action of unfair labor practice instituted against the Liberia Katopas Fishing Company, appellants before the hearing officer, Ministry of Labour. Appellees were terminated summarily and paid off on grounds that while in the employ of the appellant company, they secretly organized another Fishing Company, using the facilities of their employer and diverted their employers business to own their Company, thereby undermining the business of their employer. The hearing officer who heard the matter rendered a decision confirming and affirming the termination of the two employees on the facts that the complainants, from the evidence adduced, were guilty of violating the Labor Practices Law, Lib. Code 18A:1508 (2) (c)and 6(c), that is, the disclosing by an employee of the working secrets of the employer’s undertaking. Appellees not satisfied with this decision, petitioned the National Labour Court for judicial review. The National Labour Court, on its own motion, termed the case a wrongful dismissal action instead of the unfair labour practices, a title which the Ministry of Labour had given the complaint, and holding that it had the authority to render whatever judgment the Court below should have rendered, awarded appellee a total of US$22,400.00. From this ruling, appellants excepted and appealed to the Supreme Court.

Upon review of the records, the Court found that the fact question, as found by the administrative agency, from the evidence adduced at the trial and summarized in the decision of the hearing officer are, that the two complainants, while in the employ of the defendant company, clandestinely organized their own fishing company, and used the facilities of their employer to compete with their employer in business, which is a conflict of interest. That contrary to the allegation that at their termi-nation, the two complainants did not receive any benefit, it was shown by their own evidence that they had received pay for time worked according to documents they themselves had identified to have been issued by them, indicating their final and just payment, and that they had no further claim on the company. The court held that the aforesaid facts as found by the hearing officer at the administrative level were sufficient, conclusive, binding and not reviewable under the law; and that the National Labour Court should have confined itself to the Labour Law as to whether or not in such a situation and circumstances, the employees had committed a gross breach of duties for which they were only entitled to summary dismissal with pay for the time worked and not more. Accordingly, the Supreme Court reversed the judgment of the National labor Court .

Moses K Yangbe and Joseph P. Findley appeared for appellants; James D. Gordon appeared for appellee.

MR. JUSTICE SMITH delivered the opinion of the Court.

The appellant in this case, Liberia Katopas Fishing Company had employed the appellees, Klaus D. Meyers and Luis Orellana as Captain and as Chief Processor and they have worked with the Company for two (2) and One and a half (1 1/2) years respectively. According to the record certified to this Court on appeal, the appellees, while in the employ of the appellant/company, secretly organized another Fishing Company, using the facilities of their employer such as radio, telephone, etc., to communicate with incoming boats bringing fish from abroad for the appellant/company in an attempt to divert the consignment to their Company, thereby undermining the business of their employer. In the absence of the President of the Liberia Katopas Fishing Company who was away from the country, the administrative manager, Joseph Roberts, discovered the clandestine operation of the two (2) top employees of the company, and therefore, upon the return to Liberia of the President, D. Kassable, the administrative officer reported the incident to him which led to the termination of the two employees summarily and were paid off. The entitlement of Captain Klaus Meyers was calculated at US$4,000.00 as salary for September and October, 1993, less US$263,00 cash advance he had previously received leaving, a net balance of US$3,737.00 which he received and signed for. Appellee Luis Oreliana’s entitlement was also calculated at US$1,400.00 for the months of October and November, 1993, including US$200.00 for air ticket to Freetown, Sierra Leone, less cash advance payment in the amount of US$657.50, leaving a net balance of US$742.50 which he too received and signed for.

After receiving and signing for these amounts herein above mentioned, the appellees, on December 2, 1993, addressed the following letter to Honourable Francis F. Wesseh, Assistant Minister/Labour Standards, Ministry of Labour: it reads:

“Dear Sir:

I have the honour most respectfully to bring to your official attention the unbearable behaviour of the proprietor of Liberia Katopas Fishing ‘Company. We worked with the above mentioned company for two (2) years and one and a half (11/2) years respectively as Captain and Chief Processor, but to our surprise, Captain Klaus D. Meyers and Mr. Luis Orellana were terminated without tangible reason and failed to pay our benefits in keeping with the Labour Law of Liberia. Therefore we are appealing to you as mediator to immediately intervene into this matter.

Kind regards. Sincerely yours, t/Klaus D. Meyers s/Luis Orellana.”

The complaint was assigned to hearing officer Nathaniel S. Dickerson who heard the matter of unfair labour practices as termed by the Labour Ministry, and on the 14 th day of February, 1994, rendered decision confirming and affirming the termination of the two employees on the facts that the complainants, from the evidence adduced, were guilty of violating section 1508, Sub-section 2 (c) and 6(c) of the Labour Practices Law; that is, the disclosing by an employee of the working secrets of the employer’s undertaking. This being so, in our opinion and the law controlling, if an employee commits any offense against his obligations under the contract, and that in this case the complainants, upon the termination of their services, received their pay for time worked, signed release on November 18, 1993, acknowledging receipt of their just payment, that they had no further claim against management, the matter should have therefore been closed. Despite the receiving of their pay for time worked under such circumstances, the two (2) complainants sought judicial review of this administrative decision of the hearing officer by a 10-count petition to the National Labour Court, Montserrado County. There are only two (2) counts of the petition worthy of our consideration; the rest of the counts being factual in nature, not subject of a judicial review. In labour cases, the finding of facts is the responsibility of the administrative agency and such findings are conclusive and not reviewable on judicial review. Judicial review concerns with the application or misapplication of the law to the fact as found by the administrative forum. Hence, our concern shall be on the contention as to whether or not the decision of the hearing officer in this case is supported by Section 1508 of the Labour Practices Law as contended in counts 1 and 4 of the petition. Judicial review is ordinarily limited or confined to the records of the proceedings before the Agency; to the consideration of questions of law or questions of law and the sufficiency of the evidence; or to determining whether the action of the agency is legal or is in accordance with the law; or whether errors of law have been committed. 2 AM JUR 2d., “Administrative Law” § 612, under Limited Nature of Review.

Questions of fact involved in a proceeding before an administrative agency are to be determined at least primarily, by the agency rather than by a court; and in the absence of fraud, lack of jurisdiction, or arbitrary or capricious action constituting a denial of due process of law, the agency’s findings of fact, or decision of a question of fact, is to be accepted as final, binding, and conclusive, and may not be reviewed by a court except to the extent that a constitutional or statutory provision makes it reviewable.” 73 C.J.S., Public Administrative Law and Procedure, § 216.

A court reviewing an administrative determination will not disturb the finding of facts by the agency because the finding and determination of fact questions, is conclusively within the province of the administrative agency and therefore, such finding is final and binding except under certain situation. Here is another legal authority in support: “An administrative agency’s findings as to the facts which are supported by substantial evidence are binding and conclusive on, and may not be disturbed or set aside by a court in the absence of fraud or bias, where a hearing complying with the requirements of the process of law was accorded, the agency acted within its jurisdiction and authority, and the findings were made in compliance with law and were the result of fair determination. In such case, the court must accept the findings as final and true, and may not substitute its own judgment or findings of fact for that of the agency.” Id., § 223, Substantial Evidence, at pp. 588 – 590.

The fact question as found by the administrative agency from the evidence adduced at the trial and summarized in the decision of the hearing officer are, that the two complainants, while in the employ of the defendant company, clandestinely organized their own fishing company using the facilities of their employer to compete with their employer in business which is a conflict of interest. That contrary to the allegation that at their termination, the two complainants did not receive any benefit, it was shown by their own evidence that they had received pay for time worked according to documents that they themselves had identified to have been issued by them, indicating their final and just payment, and that they had no further claim on the Company. It is shown on the record, sheet 10, January 9, 1994, that Captain Klaus D. Meyers did not attend the whole hearing of their complaint because he was at sea working for their company. In our opinion, these facts as found by the hearing officer at the administrative level were sufficient, conclusive, binding and not reviewable under the law. The National Labour Court should have confined itself to the Labour Law as to whether or not in such a situation and circumstances, the employees had committed a gross breach of duties for which they were only entitled to summary dismissal with pay for the time worked and not more.

Our review of this case shows that the National Labour Court, on its own motion, termed the case a wrongful dismissal action instead of an action of unfair labour practices, a title which the Ministry of Labour had given the complaint. And although the claims of the petitioners, as averred in their petition for judicial review were US$6,667.00 for Klaus D. Meyers and US$3,203.00 for Orellana, a total of US$9,870.00, the National Labour Court has awarded a total of US$22,400.00 to the employees who were found to have committed a serious breach of duty in keeping with the administrative decision of the hearing officer. The National Labour Court holds the view that it has the right to render such decision which the administrative agency should have rendered, and therefore in awarding the US$22,400.00 to the petitioners, the judge concluded, and we quote:

“WHEREFORE, and in view of the foregoing laws, facts and circumstances, it is the ruling of this Court that the petitioners were wrongfully dismissed. The ruling of the Hearing Officer is hereby reversed. The Hearing Officer should have awarded the petitioner in accordance with §9 of Labour Practices Law for failure to award. Hence this Court has deemed it necessary to award.

This Court is authorized to render whatever Judgement the Court below should have rendered. Townsend v. Cooper, [1951] LRSC 16; 11 LLR 52 (1951).

Regrettably, the Judge of the Labour Court did not quote Section 9 of the Labour Practice Law relied upon to enable us to determine as to what intent, if any, section 9 of the Labour statute vitiates section 1508 of the Labour Practices Law with respect to an employee who is shown to have breached the confidence reposed in him, by engaging in acts conflicting with the interest of his employer as done by the appellees in this case.

Under § 1508 as relied upon by the hearing officer, it is provided as follows:

“Notwithstanding, the provision of §1508 (1) 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”.

It is established by the trial record that the two (2) employees were employed for an indefinite period, and while in the employ of the employer, and having access to the company’s facilities and fishing boats bringing fish from abroad for their employer, clandestinely established their own fishing company using the facilities of their employer which is a serious breach of their duties.

Why is it that the appellees/complainants received their pay for the time worked, signed for the amounts received and yet complained to the Labour Ministry that they were terminated without receiving their benefits? Why is it that they did not reject the pay they received and signed for, to claim the benefits they claimed? Why is it that their complaint did not allege the benefit they are claiming and the National Labour Court had awarded amounts that were never claimed? Why did they not return the amounts received to claim the entitlement they now claim? Under the law, they should have returned the money if they felt their entitlements should have been more than what they received. In Horace, 5 ALR 754, and McGregon v. Mills, 5 ALR 756, it was held that: “Before one can maintain an action to avoid a settlement and recover a larger amount, he must return, or tender the sum received by him in the settlement. It is timely to do so when settlement in bar is filed.”

In view of the foregoing and the law in support of our conclusion, the judgment of the court below is hereby reversed with costs against the appellees. And it is hereby so ordered.

Judgment reversed.