THE LIBERIAN BANK FOR DEVELOPMENT AND INVESTMENT (LBDI), represented by and thru its duly authorized officers, Petitioner/ Appellant, v. MR. EISENHOWER C. YORK and MR. G. RUDOLPH BROWN, Hearing Officer, Ministry of Labour, Respondents/Appellees.
APPEAL FROM THE NATIONAL LABOUR COURT, MONTSERRADO COUNTY.
Heard May 4 & 5, 1988. Decided July 29, 1988.
1. With the dissolution of the Board of General Appeals of the Ministry of Labour, the statutory provision that an aggrieved party may appeal the ruling of the hearing officer to the Board within thirty days of the ruling of such hearing officer is rendered inapplicable to appeals from rulings of a hearing officer. Rather, the applicable law governing rulings from the hearing officer to the Labour Court now becomes the provision regulating appeals from the Board of General Appeals to the National Labour Court.
2. Under the applicable law, an appeal from the hearing officer to the National Labour Court must be done within ten days of the date of receipt of the ruling of the hearing officer.
3. The jurisdiction of the National Labour Court is the same as that of the circuit court or debt court.
4. With the establishment of a National Labour Court in each county, or in the absence of such Labour Court, the vesting in the debt court of jurisdiction over appeals from rulings of hearing officers or labour commissioners, and the dissolution of the Board of General Appeals, the rationale for the thirty day appeal period, which was designed to allow time to have the matters forwarded to the Board of General Appeals, is rendered inapplicable. Hence, consistent with the intent of the Legislature in establishing labour courts throughout the Republic, appeals from the hearing officer to the Labour Court must be done within ten days, the same as if the appeal was being taken from the Board of General Appeals since the statute provides that appeals for judicial review by the Labour Court are now taken directly from the hearing officer.
5. A letter to a hearing officer excepting to his ruling and taking an appeal to the National Labour Court places the case within the jurisdiction of the said court for all purposes and is tantamount to an appellant voluntarily placing himself under the jurisdiction of the court. By such act, the appellant thereby becomes bound by the rule governing such cases.
6. Parties plaintiff are persons who bring the suit and by their voluntary appearance and their prayer for redress or relief, thereby submit to the jurisdiction of the court. Parties defendant are those who have been served with process commanding their appearance or who, having notice that process has been issued or ordered issued, voluntarily appear and submit to the jurisdiction of the court.
7. A writ of summons is not necessary where a party to a labour case, writes the hearing officer excepting to his ruling and announcing an appeal therefrom to the National Labour Court.
8. Section 23.1 of the Act Amending the Labour Practices Law and decree no. 21 gives the National Labour Court automatic appellant jurisdiction over all labour cases appealed to it from the decisions of hearing officers or labour commissioners. Accordingly, no summons is necessary to bring the parties under the jurisdiction of the court.
9. Appeals from hearing officers and labour commissioners are generally governed by the same principles as appeals from justice of the peace courts.
10. Labour courts such as hearing officers and labour commissioners are courts of records, and appeals from them are heard de novo.
11. A default judgment may be rendered in consequence of the non-appearance of the defendant or the omission by the defendant to take a necessary step in the action within the proper time, as for example, a failure to plead. But a default judgment does not depend only upon the non-appearance of the defendant or party in court, but it also applies when the defendant fails to take some required step in the cause, as for example, the failure to appear for the continuance of a case is one such step.
12. The requirements for a default judgment are deemed to have been met where the defendant is informed of the claim of the plaintiff, he has appeared for the commencement of the case and is given notice of the time and place for the continuance thereof, but fails to appear for the said continuance.
13. No employer shall dismiss any employee with whom he is bound by a contract for a definite period before the end of that period unless it is shown that the employee has been guilty of a gross breach of duty or a total lack of capability to perform. Where this has not been proven, the dismissed employee shall be entitled to claim full remuneration for the unexpired portion of the contractual period.
Appellee brought an action of wrongful dismissal in the Ministry of Labour against the appellant. The appellant appeared at the first day of the hearing, but failed to appear for the continuance of the case. Whereupon, appellee applied to the hearing officer for application of the rule on default judgment, which was granted and the appellee permitted to continue with the presentation of evidence in support of his claim. At the conclusion of the evidence, a final ruling was rendered against the appellant. Because the appellant was not present, a copy of the ruling was forwarded to it. The appellant, upon receipt of the ruling on September 9, 1987, on the same day addressed a letter to the hearing officer announcing an appeal to the National Labour Court and requesting the hearing officer to forward the records to said court. In the letter, appellant challenged the authority of the hearing officer to enter judgment by default against it since it had already appeared in the case, and to award the appellee $70,156.80 in the light of the appellee’s alleged failure to prove that his dismissal was wrongful. No further steps were taken by the appellant.
On October 7, 1987, nearly thirty days after the ruling of the hearing officer, the appellee filed in the National Labour Court a motion to dismiss the appeal and to enforce the hearing officer’s ruling, stating that the appellant had failed to proceed, in that up to that time the appellant had failed to file a petition for judicial review as required by law.
In its resistance to the motion, the appellant stated that under the statute it had a period of thirty days from the date of receipt of the hearing officer’s ruling to complete its appeal from the hearing officer to the Board of General Appeals. The appeal, it said was not to the National Labour Court, as evidenced by its letter to the hearing officer. That period for its appeal, it said, had therefore not expired. The National Labour Court heard the motion to dismiss the appeal, granted the same, and ordered the hearing officer to enforce his ruling. Appellant excepted to this ruling and announced an appeal to the Supreme Court.
The Supreme Court rejected all of the contentions of the appellant, holding firstly that the National Labour Court did have jurisdiction of the matter. The Court noted that under an Act passed by the Legislature, the Board of General Appeals was dissolved. Accordingly, it said, all appeals from the rulings of hearing officers were to be taken directly to the National Labour Court. The letter to the hearing officer announcing an appeal, the Court opined, was sufficient to vest jurisdiction over the matter in the National Labour Court. There was no need, is said, for the filing of a petition for judicial review, noting that by its action in filing the appeal, the appellant had submitted itself to the jurisdiction of the National Labour Court.
On the question of whether the hearing officer could enter default judgment against the appellant, it having appeared at the commencement of the trial and participated therein, the Court said that hearing officer could properly enter such judgment. The Court noted that such judgment could be entered not only against a party who had failed to appear but also against a party who had failed to take some required step in the case. The further step required of the appellant was its appearance for continuation of the case, which the appellant had failed to do. The Court observed further that the requirement of the statute for default judgment had been met by the appellee since the appellant was fully aware of the claim of the appellee and had notice of the hearing which it had already initially attended.
On the question of the dismissal of the appellee, the Court held that the dismissal was indeed illegal as the appellant had failed to comply with the statute which required that where an employee holds a definite contract with an employer, the employer cannot dismiss the employee before the expiration of the contract except upon proof of guilt of a gross breach of duty or a total lack of capability to perform. The Court therefore affirmed the judgment of the National Labour Court and ordered enforcement of the ruling of the hearing officer.
Joseph Williamson appeared for petitioner/appellant Joseph Findley appeared for respondent/appellee
MR. JUSTICE JUNIUS delivered the opinion of the Court.
This appeal has traveled to us from the Ministry of Labour and relates to the wrongful dismissal of Eisenhower C. York, an employee of defendant/appellant bank. The case grows out of a complaint filed with the Ministry of Labour on July 6, 1987 by the appellee. Hearing of the matter was conducted by the hearing officer on the 8 th of September, 1987 and culminated, on the 9th day of September, 1987, in a ruling by default against appellant. In his ruling, the hearing officer awarded $70,156.80 to the appellee as compensation. Not being present when the ruling was made, appellant wrote the below quoted letter to the hearing officer, taking exception to the ruling and announcing an appeal therefrom, In the letter, the appellant requested the hearing officer to “Please…forward the records… to the National Labour Court of Liberia for review in keeping with law.” The letter reads as follows:
“September 9, 1988
MCG. Rudolphus Brown
Hearing Officer
Ministry of Labour
Monrovia, Liberia
Dear Mr. Brown:
Please take note and spread upon your records that the Liberian Bank for Development & Investment (LBDI), defendant in the case of wrongful dismissal in which Mr, Eisenhower C. York is the complainant, takes exception to your ruling of September 8, 1987, and announce an appeal from said ruling on the following grounds:
1. That a default judgment cannot lie against a party who has appeared. The defendant bank appeared and participated in the trial of this matter on the 29 th of July 1987, as the record will show. It was therefore error on your part to have granted a default judgment.
2. It was error, and reversible error on your part, to have ordered the confirmation of a document simply upon the request of the counsel for complainant. Complainant exhibit C-1 having been identified and marked, it could have only been confirmed by another witness since the complainant himself had rested. Therefore, the confirmation of the document C-1, ordered by you, is a reversible error.
3. Although the defendant bank did not appear in keeping with the assignment, this did not relieve the complainant from proving his case. No documentary evidence was offered to support the allegation that the complainant earned a monthly salary of $2,923.20. The complainant should have proferted a copy of his pay slip or produced a copy of the Bank’s payroll to substantiate the allegation. This not having been done renders your award of 4570,156.80 unsupported by evidence, which amounts to gross error on your part.
4. Throughout the lone testimony of the complainant, there was no showing that he was dismissed without notice nor payment in lieu of notice. Paragraph 3 of section 1508 provides:
“Where the contract is concluded between the employer and the employee for an indefinite period, the employer shall have the right to dismiss the employee on condition that he gives him two weeks written notice in the case of non-salaried employee and four weeks written notice in the case of salaried employee or payment in lieu of notice.
The complainant not having averred that he was not paid in lieu of notice, your finding of illegal dismissal is unsupported by law.
Please therefore forward the records in this case to the National Labour Court of Liberia for review in keeping with law.
Respectfully submitted, LIBERIAN BANK FOR DEVELOPMENT & INVESTMENT (LBDI)-DEFENDANT,
By & Thru its Legal Counsel:
JOSEPH WILLIAMSON LAW OFFICES Sgd. Joseph Williamson COUNSELLOR-AT-LAW”
Appellee observed that up to the r of October, 1987, thirty days after the rendition of the ruling, appellant had not filed a petition for judicial review, in keeping with law. Appellee’s counsel therefore filed a motion to dismiss the appeal for failure to proceed and to enforce the ruling of the hearing officer; asserting that appellant should have proferted its appeal within 10 days after the receipt by appellant of copy of the hearing officer’s ruling. In response to the motion to dismiss, appellant filed a resistance. In the resistance, appellant relied on the statutory provision which states that an on appeal from the hearing officer for review by the Board of General Appeals shall be made within 30 days after receipt of the hearing officers ruling. The appeal, it said, was not an appeal to the National Labour Court of Liberia, as evidenced by its letter of notice of appeal, quoted supra. The motion was heard on November 3, 1987 by the National Labour Court and was sustained by the court. The appeal was therefore dismissed by the court, and the ruling of the hearing officer ordered enforced. Appellant excepted to said ruling and announced an appeal therefrom to this Honourable Court, filing thereafter a five-count bill of exceptions.
The following issues were raised in the bill of exceptions:
“1. That Your Honour committed reversible error when you failed to pass upon the question of jurisdiction raised in count one (1) of respondent Bank’s resistance,
2. That Your Honour erred when you ignored section seven (7) of article 1 of decree No. 21 which specifically set the time limitation for the taking of appeal from the hearing officer.
3. That although Your Honour expressed the view that the National Labour Court is not a substitute for the Board of General Appeals, yet, Your Honour based your ruling on the provision of the Labour Law relating to the taking of appeal from the Board of General Appeals, which no longer exists, thereby committing reversible error.
4. That Your Honour misread and misinterpreted section 23.2 of An Act to repeal An Act amending the Labour Practices Law of Liberia, etc., approved October 20, 1986, which stated that “the procedure and method of enforcement shall be the same as that of the debt court.” Defendant Bank submits that this section specifically deals with the procedure and method of enforcement of judgment which shall be the same as the debt court and that has reference to writs of executions or other means of enforcement which in no way affects the time limitation for taking of an appeal from the hearing officer.
5. That the Act to Amend the Labour Practices Law of Liberia with respect to Administration and Enforcement, of May 1972, including section seven (7) thereof, upon which Your Honour based your ruling, was repealed by the Act of October 20, 1986, and therefore has no legal effect.”
At the hearing before us, appellant, even though having filed the five-count bill of exceptions, quoted supra, chose to present in its brief the below questions, which appellant considered the as cardinal issues to be determined by this Court. It accordingly vehemently argued same. The issues are:
“1 What is a default judgment and can it lie against a party who appeared and participated in the trial of a case?
2. What is the time allowed by statute for the taking of an appeal from the ruling of a hearing officer to the Labour Court?
3. When is an employee said to be wrongfully dismisses ; under the Labour Law of Liberia?
Appellee’s counsel, in arguing his brief, presented two issues, stated below, for our consideration:
“1. That the trial court failed to pass upon count one of appellants resistance to appellee’s motion to dismiss for failure to proceed.
2. That the court erred and ignored section seven (7), article 1 of decree No. 2, and sustained appellee’s contention that the petition for judicial review should have been filed within 10 days (18 September 1987) of the date (September 8, 1987 of the ruling of the hearing officer. This issue is also restated in counts 3, 4 and 5 of the bill of exceptions.”
It is befitting that the issues presented by appellant and appellee’s counsels be dealt with in the reversed order. Accordingly, we shall begin with the two issues presented by the appellee.
The issues raised by appellee, and also contained in counts 2, 3, 4 and 5 of appellant’s bill of exceptions, deal with the alleged error made by the Labour Judge in ruling that appeals from a hearing officer or labour commissioner to the Labour Court, in the form of a petition for judicial review, should be completed and filed within 10 days from the date of such ruling, according to the practice in this jurisdiction. In respect of this issue, we hold that the Labour Court did not err, and that the law and practice in this jurisdiction support this view. The Labour Practices Law, 18-A:7, under Administration and Enforcement, says:
“A party aggrieved by a decision made by the Board of General Appeals may appeal from such decision or any part thereof to the circuit court or debt court in the county in which the Hoard held its proceeding by filing a petition to the circuit count or debt court within 10 days after receipt by the aggrieved party of a copy of the administrative decision, Copies of the petition shall be served promptly upon the Board of General Appeals which rendered the decision, and upon all parties of record. Within 10 days after service of the petition, or within further time allowed by the court, the Ministry of Labour and Youth shall file with the clerk of the circuit court or debt court a certified copy of the entire records of the proceeding under review, together with a copy of the administrative decision. It shall not be necessary to file exceptions to the rulings of the Board of General Appeals.”
The appeal prayed for by appellant was to the National Labour Court and not the Board of General Appeals. The jurisdiction of the National Labour Court now is that of the circuit court or debt court and to perfect an appeal, the appellant is given 10 days by law. The Board of General Appeals has been eliminated by legislative enactment, which also provides for the establishment of labour courts throughout the length and breath of Liberia. The 30 days given from the hearing officer or labour commissioner to the Board of General. Appeals was to give a party litigant the opportunity to reach Monrovia, Ministry of Labour, where the Board of General Appeals was sitting. But now, judicial review is from the hearing officer to the National Labour Court. Except for Montserrado County, the debt court in each county serves as the labour court. No one can conclude or reason therefore that the Legislature intended for 30 days to be used as the period required to file a petition for judicial review from a hearing officer to a labour court or debt court within the same county. Indeed, in Neufville v. Diggs et al. this Court held that “we are not to regard the canons of construction as a set of arbitrary rules which are to be applied to all statutes differently and which may or may not result in giving to the statute meaning and effect consonant with the purpose of those who formed it.” And further that “[a]mendatory acts are subject to rules and principles of construction applicable to original statutes.” Neufville v. Diggs et. al. [1970] LRSC 1; 19 LLR 389, 393 (1970). From the foregoing, it is clear that the Legislature did not intend that a judicial review of a matter from a hearing officer to the labour court should be 30 days. Instead, the intent was that the period for appeal would be 10 days, same being the time required from the defunct Board of General Appeals to the National Labour Court.
Reference to 5 count of the bill of exceptions, we note that the ruling of the National Labour Court shows that the judge did pass upon count 1 of appellant’s resistance to the motion to dismiss the appeal. The records clearly indicate that appellant informed the hearing officer on the 9th of September, 1987, of its exception to the ruling, and made specific reference to the fact that appellant was taking an appeal to the National Labour Court. This act placed the matter under the jurisdiction of the National Labour Court for all purposes. indeed, by this act, appellant voluntarily submitted itself to the jurisdiction of the National Labour Court. Having appealed to the National Labour Court voluntarily, it was bound by the rule governing such cases. This Court has held, with respect to such rule, that:
“Parties plaintiff are they who bring the suit and, by their voluntary appearance and their prayer for redress or relief, thereby submit to the jurisdiction of the court, parties defendant are those who have been served with process commending their appearance or who, having notice that process has been issued or ordered issued, voluntarily appear and submit to the jurisdiction of the court:” Tubman v. Murdoch, [1934] LRSC 26; 4 LLR 179 (1934).
In the instant case, a summons was not necessary. Hence, count 1 of the resistance has no standing legally. We note further that even if the trial court did not pass upon that issue, it was not a reversible error. Section 23.1 of the Act Amending the Labour Practices Law of Liberia with respect to Administration and Enforcement, and to amend decree No. 21 of the Interim National Assembly in connection therewith, gives the National Labour Court automatic appellate jurisdiction over all labour cases appealed to it from the decisions of the hearing officer or labour commissioner. It therefore became incumbent upon the appellant to follow up its case and not to sit and wait for the issuance of a writ of summons. The Act referred to states:
“Section 23.2 JURISDICTION AND PROCEDURE:
Labour Court shall be a court of limited jurisdiction and shall have exclusive appellate jurisdiction over all labour cases as appealed to it from the decisions of the hearing officers of or labour commissioners in the county where it is established. The procedure and method of enforcement shall be the same as that of the debt court except as modified herein.”
No summons was therefore necessary. in that connection, this Court has held that:
“Appeals from labor courts are generally governed by the same principles as appeals from justice of the peace courts,” Kobina et al., v. Abraham[1964] LRSC 2; , 15 LLR 502 (1964).
Labor courts, in this context meaning hearing officers and labor commissioner courts, are courts of records and appeals from them are heard de novo.
Let us now answer the issues raised in the brief and argued before us the first of these is “what is a default judgment and can it lie against a party who appeared and participated in the trial of a case?
Blacks Law Dictionary (4 th ed.) defines default judgment as follows: “Judgment rendered in consequence of the non appearance of the defendant. One entered upon failure of a party to appear…” With reference to the same issue mentioned above, i.e., can a default judgment be rendered against a party who has appeared and participated in the trial of a case, Ballentine’s Law Dictionary 322 (3″1 ed.) states that a default judgment is “[a] judgment rendered upon an omission by the defendant to take a necessary step in the action within the proper time, for example, a failure to plead.” This means not only does judgment by default depend upon the non-appearance of the defendant or party in court, but it applies also where a defendant fails “to take some required step in the cause.” Appellant was present when the trial commenced and participated but failed to appear for the continuation of the trial. Under those conditions, the Civil Procedure Law, Rev. Code 1: 42.6, states the following: “On an application for judgment by default, the applicant shall file proof of service of the summons and complaint, and give proof of the facts constituting the claim, the default, and the amount due. Section 42.7 of the same law states that no notice is required when the claim is for a sum certain or for a sum which can by computation be made certain. Ibid., § 42.7. The appellant in this case was fully aware of appellee’s clam and present during the commencement of the trial. Thus, under the principles cited above, we hold that default judgment can lie against a defendant who participated in a trial at its commencement but failed to appear for the continuation thereof.
Since we have already dealt with issue two, let us now answer issue three, which is, when is an employee said to be wrongfully dismissed under the Labour Practices Law of Liberia?
The Labour Practices Law, Lib. Code 18-A: 1508, provides as follows:
“No employer shall dismiss any employee with whom he is bound by a contract for a definite period before the end of that period, unless it is shown that the’ employee has been guilty of a gross breach of duty or a total lack of capability to perform. Where this has not been proven, the dismissed employee shall be entitled to claim full remuneration for the unexpired portion of the contractual period.”
In this case, appellant, without due regard for the organic law protecting employer as well as employee, illegally dismissed the appellee. It therefore becomes our binding obligation to apply the law correctly.
In view of the foregoing, the judgment of the National Labour Court is hereby affirmed. And it is hereby so ordered.
Judgment affirmed.