LAMCO J. V. OPERATING COMPANY, by and thru its General Manager, Appellant, v. JAMES M. ROGERS and FRANCIS WESSEH, Acting Chairman of the Board of General Appeals, Ministry of Labour, Youth and Sports, Appellees.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: May 10, 1981. Decided: July 30, 1981.
1. The circuit court, on judicial review, by mandatory provision of the statute, is bound to confine its appellate review to the records transmitted to it by the Board of General Appeals of the Ministry of Labour, without the production of additional evidence aside from entertaining oral arguments from both sides in the case.
2. It does not matter whether or not a judgment is pleaded. Every court is bound to take judicial cognizance of its own records, and no evidence of any fact that the court will take such notice need be given by the party alleging its existence.
3. It is illegal and unlawful for an employer to terminate the services of an employee while the employee is on a vacation granted him by said employer, without firstly affording the said employee, an opportunity to be confronted with whatever act of alleged gross breach of duty he might have committed prior to his vacation.
4. An appellate court is authorized to render whatever judgment the court below should have rendered.
Appellee was dismissed by appellant while he was on vacation for what appellant referred to as consistent indifference in appellee’s job performance, and offered to pay appellee three months salary in lieu of notice. Appellee, not being satisfied with the decision, filed a complaint before the hearing officer at the Ministry of Labour. The hearing officer ruled in favour of the employee, whereupon the defendant company appealed to the Board of General Appeals. The Board modified the ruling of the hearing officer and ordered appellee re-instated or be paid two months salary for each year of service rendered appellant, but not exceeding twenty four months. From this ruling, the appellant company petitioned the Civil Law Court for judicial review. From a final judgment of the Civil Law Court affirming the ruling of the Board of General Appeals and awarding appellee the sum of $9,680.00, the appellant company appealed to the Supreme Court.
The Supreme Court held that it was illegal for appellant to have dismissed appellee while he, appellee, was on vacation without firstly affording him an opportunity to be confronted with whatever act of alleged gross breach of duty he might have committed prior to his vacation. The Court, in so holding, affirmed the judgment of the Civil Law Court, with modification.
S. Edward Carlor appeared for the appellant. Stephen B. Dunbar, Sr. appeared for the appellees.
MR. JUSTICE BORTUE delivered the opinion of the Court.
On the 10th day of November. A. D. 1962, co-appellee, James M. Rogers, was employed by the appellant as a payroll clerk, until on the 3rd day of June, A. D. 1964, when both appellant and co-appellee, executed an employment contract for an indefinite period. Thereafter, co-appellee was promoted to several positions for working assiduously and efficiently. His last position held was Senior Group Head, Staff Housing Superintendent which paid a salary of $510.00 per month. After several years of service without leave, co-appellee, on January 15, 1974, took his annual leave for thirty (30) days.
Upon his return from leave and resumption of duty, coappellee received a letter of termination from Mr. Edwin Lomax, his immediate supervisor. The reasons assigned for the termination of his services were that despite repeated verbal warnings, Mr. Rogers had consistently shown indifference in his job performance, etc.
It is quite interesting to note that although the employment contract executed between appellant and co-appellee provided in Clause Four (4), that upon the termination of the employment services by either party to the said employment contract, one month notice would be given to the other party; yet, appellant offered co-appellee, James M. Rogers, three months pay in lieu of notice, and especially when appellant had alleged that Mr. Rogers had consistently shown indifference in the performance of his job.
This is the second time this case has been before us on appeal by the appellant in its attempt to justify its dismissal of coappellee, James M. Rogers. The first time this case came before this Court on appeal was during the March Term, 1975, of this Court, and the principal issues raised by the appellant then, were that the trial judge failed to pass upon all of the issues of law raised in the pleadings, and that appellant withdrew its pleadings four times after filing and substituting new pleadings in lieu thereof. The judgment of the Court below was therefore reversed and the case remanded to be heard de novo.
In keeping with the mandate of the Court, this matter was retried by Mr. D. Hoto Johnson, labour inspector, Mines and Factories, Lamco, Yekepa, Nimba County, who on the 7th day of July, A. D. 1976, rendered a ruling to the effect that co-appellee, James M. Rogers, should be reinstated and paid from the time he was dismissed.
Appellant appealed from the ruling of the hearing officer to the Board of General Appeals on October 13, 1976, and the case was heard by the taking of additional evidence.
On the 29th day of October, 1976, the Board of General Appeals modified the ruling of the hearing officer and ordered appellant herein to reinstate co-appellee, James M. Rogers, or pay him in lieu of reinstatement, two months of his salary for each year of service rendered management, but not exceeding twenty-four months in keeping with the Labor Practices Law, 18A: 9, the Act to Amend the Labour Practices Law of Liberia With Respect to Administration and Enforcement, where wrongful dismissal is alleged. Again, appellant appealed from this ruling of the Board of General Appeals by filing a twenty-count petition for judicial review of this case by the People’s Civil Law Court for the Sixth Judicial Circuit, Montserrado County.
The pleadings in this case rested with the answer of coappellee, James M. Rogers. After hearing arguments on both sides, His Honour Emmanuel S. Koroma, who presided over the March Term, A. D. 1978, of the Civil Law Court, rendered judgment on the 24th day of May, A. D. 1978, in which he awarded co-appellee, James M. Rogers, the sum of $9,680.00 with costs against the appellant. Again, appellant appealed from this ruling of Judge Koroma to this Court on a nine count bill of exceptions for our review and determination.
Of the nine count bill of exceptions, only counts 3, 4, 5, 7 and 8, in our view, need to be traversed for the determination of this case.
In count three of the bill of exceptions, appellant contended that the trial judge erred when he ruled that co-appellee, James M. Rogers, was employed on the 10th day of November, A.D. 1962, instead of the 3rd day of June, A.D. 1964. This contention of appellant’s counsel is overruled, because if appellant felt that this was not a fact, appellant should have made an effort to produce evidence to the contrary. Co-appellee, James M. Rogers, testified that he was employed on the le day of November, A.D. 1962, by the appellant as a payroll clerk, which fact remained un-rebutted. He also testified that an employment contract was executed between him and the appellant on the 3r d day of June, A. D. 1964.
In count four of the bill of exceptions, appellant argued that the trial judge erred when he failed to pass upon the issues raised in count six of the petition with respect to the ruling of the Board of General Appeals being indefinite, indistinct and ambiguous. Appellant contended that the ruling of the Board did not specifically state what amount constituted Co-appellee, James M. Rogers’ two months salary for each year of service rendered appellant, and his expenses. It is our opinion that the contention of the appellant is not sustained, in that the trial judge awarded co-appellee, James M. Rogers, the sum of $9,680.00, representing twenty-two (22) months of his salary at the rate of $440.00 per month. Therefore, the court did pass upon the said issue in its ruling from which appellant appealed to this Court for review.
In count five of the bill of exceptions, the trial judge did not err, when he affirmed and confirmed the ruling of the Board of General Appeals, with modification that co-appellee, James M. Rogers, be paid twenty-two (22) months of his salary, at the rate of $440.00, which is equivalent to $9,680.00, excluding the payment of the unexplained expenses made by the co-appellee. Count five of the bill of exceptions, being untenable, is not sustained.
Appellant contended in count seven of the bill of exceptions, that the trial judge failed to pass upon all of the issues of law raised in both the petition and the returns, with particular reference to count three of the petition, to the effect that the judgment of the Board of General Appeals was uncertain and indefinite. With respect to the alleged uncertainty of the trial court’s ruling as to what amount constituted Co-appellee James M. Rogers’ two months salary for each year of service rendered appellant, which is now under consideration by this Court, an inspection of the said ruling of the trial court of May 24, 1978, shows that the judge passed upon the said issue in paragraph two thereof, when he made reference to the employment record of Co-appellee James M. Rogers, which confirmed the fact of his monthly salary. This contention was also raised in counts four and six of the appellant’s petition for judicial review and passed upon by the court. Count seven of the bill of exceptions is, therefore, overruled.
In count eight of the bill of exceptions, the appellant held that the trial judge erred when he passed upon the facts without hearing the evidence. This contention of the appellant is legally untenable, because in accordance with Labor Practices Law, 18A:8, Chapter 1, Conduct of Proceeding on Judicial Review by the Circuit Court, the court is by mandatory provision of the statute bound to confine its appellate review in keeping with the records transmitted to it by the Board of General Appeals of the Ministry of Labour, without the production of additional evidence, aside from entertaining oral arguments on both sides in a Labour case of this nature.
Included in the record certified to us from the court below, were the testimonies and/or statements of both the appellant and Co-appellee, James M. Rogers, recorded at the initial hearing of this case on September 21, 1975, on sheets one and two, which we deem appropriate and proper to quote for the benefit of this opinion, inter alia:
“COMPLAINT BY MR. JAMES M. ROGERS:
“Mr. Rogers alleged that he was employed by Lamco as a payroll clerk in November of 1962 and after working assiduously, he was raised to a staff rank in 1963. During this period, he and co-workers were assigned as counterparts to some expatriates but the said promotion was delayed because the expatriates were still on tho job. However, on May 1, 1964 complainant and management entered into an employment contract providing for one month notice in case of termination. Because of his productivity and efficiency, management was, however, pleased to promote and raise him as follows:
1. July 1964, promoted as counterpart with a salary of $175.00 monthly.
2. July 1, 1965, received $204.00 monthly, because of general increment.
3 .Transferred to Buchanan October 11, 1965, to succeed Mr. Clinton with an increment to $220.00.
4. Because of salary revision up to January 1969, he received $226.00 monthly.
5. Promoted on January 1, 1970, to senior clerk at $276.00 a month.
6. Salary revision again, offered him $300.00 monthly on January 1, 1971.
7. January 1, 1972, promoted to staff housing attendant at $350.00 per month.
8. On June 1, 1972, organizational change in department, position changed to senior group head (staff housing attendant) at $375.00 per month.
9. General salary review from 1973 to January 1, 1974, resulted to an increment to $510.00 per month.”
STATEMENT BY MANAGEMENT:
“We have listened very carefully to the testimonies of Mr. James M. Rogers and his two witnesses, and we believe that the sound experience and integrity of this investigating body will not allow sentiments nor propaganda to overshadow its desire to render fair and impartial decision in the matter brought before this body.
We have accordingly prepared a summary of pertinent facts from the employment record of Mr. James M. Rogers with the Lamco J. V. Operating Company, beginning November 10, 1962, and ending February 16, 1974.
1. Date of employment, November 10, 1962, at the rate of 41 cents an hour, wages raised to 50 cents an hour January 16, 1964.
2. Promotion to staff position as assistant house attendant, May 1, 1964, at $155.00 per month, on a two-month trial period.
3. Completed probation July 1964, and promoted as counterpart with salary of $175.00 per month.
4. Transferred to Buchanan October 11, 1965, to take over from Mr. S. Clinton.
5. July 1, 1965, salary was raised to $204.00 because of general salary increment in the company.
6. November 30, 1965, the community superintendent requested transfer, suspension and reduction of salary from $220.00 to $204.00, because of negligence and dereliction of duty.
7. December 8, 1965, 14 days suspension with salary reduction and transfer.
8. January 3, 1966, because of lack of responsibility and negligence, status was changed and placed on probation until March 1, 1966.
9. December 28, 1966, new reduced position clerk, general salary revision as of January 1, 1968, new salary $215.00.
10. January 1, 1969, general salary revision, $226.00. 11.
11. January 1, 1970, promoted from junior clerk to senior clerk at $276.00 per month.
12. General salary revision January 1, 1971, $300.00.
13. January 1, 1972, promoted staff housing attendant at $350.00 per month.
14. June 1, 1972, organizational change in department position, changed to senior group head (staff housing attendant) at $375.00 per month.
15. General salary review effective January 1, 1973, $390.00.
16. June 1, 1973, general salary review because of high cost of living at $440.00.
17. General salary review effective January 1, 1974, $510.00.
In view of the testimonies of both appellant and Co-appellee James M. Rogers just quoted, it is quite clear that Co-appellee James M. Rogers’ last salary earned before his dismissal by appellant was $510.00 and not $440.00 as indicated by Judge Koroma in his ruling.
In Phelps v. Williams, [1928] LRSC 14; 3 LLR 54 (1928), this Court ruled that: “It does not matter whether or not the judgment is pleaded. Every court is bound to take judicial cognizance of its own records; and no evidence of any fact of which the court will take such notice need be given by the party alleging its existence.”
The following legal authority is found in 8 RCL, § 8, pp. 1140-1141, on the point as follows:
“The rule is well recognized that after a deposition taken in a cause has been read, without objection upon one trial, it cannot afterward be objected to on account of any defect existing at the time it was so used. This is upon the principle that a person by allowing a deposition to be read without objection, thereby waives any defect or irregularity in the mode in which it has been taken, and is precluded from afterward alleging or taking advantage of what he has thus waived. Such a deposition stands on the same basis as other evidence so far as admission in a subsequent trial is concerned, the best test being whether the witness’ knowledge can be made available by other means. Owing to the fact that depositions are often admissible because containing some admission on the part of the deponent, the rule is that, after the deposition has been used in the case for which it was taken, it becomes a judicial document on the files of that court. Consequently the rule relating to judicial documents becomes applicable to the deposition, and the whole document becomes testimony in the case.”
We have cited as our reliance the above legal authorities in support of our position for taking recourse to the records of September 27, 1975, made by the appellant and Co-appellee James M. Rogers, when this case was first heard. Further, this is a labour matter, which according to our statute, should be heard and disposed of expeditiously.
We hold that it is illegal for an employer to terminate the services of an employee, while on vacation granted him by the said employer, without first affording the said employee, an opportunity to be confronted with whatever act of alleged gross breach of duty he might have committed prior to his dismissal. In Twonsend v. Cooper, [1951] LRSC 16; 11 LLR 52 (1951), this Court held that:
“An appellate court is authorized to render whatever judgment the court below should have rendered.”
In view of the foregoing facts, circumstances and the laws cited hereinabove, it is our conclusion, that the judgment of the court below be, and the same is hereby affirmed, with modification that co-appellee, James M. Rogers, should be paid twenty-two (22) months’ salary, at the rate of $510.00 a month, same being his last monthly salary earned, which amounts to the equivalent to $11,220.00. Costs of these proceedings are ruled against the appellant.
The Clerk of this Court is hereby ordered to send a mandate to the court below, ordering it to resume jurisdiction over this case and enforce this judgment. And it is hereby so ordered.
Judgment affirmed with modification.