THE MANAGEMENT OF ROBERTS INTERNATIONAL AIRPORT (RIA), Appellant, v. THE BOARD OF GENERAL APPEALS, Ministry of Labour, and INEZ BEYSOLOW, Appellees.

APPEAL FROM THE RULING OF THE NATIONAL LABOUR COURT.

Heard: November 28, 1988. Decided: December 29, 1988.

1. The National Labour Court is authorized by statute to affirm, modify, or reverse wholly or in part any judgment brought before it as to any party and when the interest of justice so requires, remand with further instructions or orders as may be necessary and proper.

2. A breach is the breaking or violation of a law, right, duty, either by commission or omission.

3. Breach of duty is any violation or omission of a legal or moral duty; it is the neglect or failure to fulfil the duties of an office or fiduciary employment in a just and proper manner.

4. In labor matters, there must be an investigation properly conducted at the employer’s place of business to establish the guilt or innocence of the accused employee, or else the dismissal of the employee involved is legally unjustified.

5. Facts are considered conclusive if supported by sufficient evidence on the record considered as a whole.

6. Liberian law gives the employer the right to terminate the services of an employee who commits serious breach of his/her duty to the employer by disclosing the working secret of the employer. Liberian law also gives the employer the right to terminate the services of an employee where the employee commits other serious offense(s).

7. The failure of an employee to carry out the legitimate instructions or orders of his employer when such instructions are within the power of the employer and are legal and reasonable are grounds for dismissal.

8. The failure of an employee to establish his/her innocence or guilt of breach of duty creates a strong presumption that the employee is guilty of serious breach of duty.

9. Liberian law gives the employer the right to terminate the services of an employee without any further claim, if the employer gives the required notice of payment in lieu of notice.

10. Statutory requirements with respect to illegal dismissal are mandatory.

Appellee was dismissed after nine years of employment. She filed an action of wrongful dismissal with the Ministry of Labour. The hearing officer found for appellee and awarded her an aggregate of one month pay for each year of service, totaling nine months pay. Appellant appealed to the Board of General Appals (Now National Labour Court), which confirmed the ruling of the hearing officer. Appellant petitioned the National Labour Court for judicial review. The court upheld the ruling of the Board, but modified it by increasing the award. Appellant appealed to the Supreme Court. In its review, the Supreme Court held that appellant had failed to establish through a proper investigation that appellee had breached her duty. It further held that the National Labour Court did not violate the labor laws when it confirmed the hearing officer’s ruling and increased the award because appellee was entitled to compensation for wrongful dismissal as provided for under the Labor Practices Law, which consisted of not only one month for each year of service, but also payment for the period of suspension. The judgment was therefore affirmed.

B. Mulbah Togbah for appellant. Margaret Massaquoi for appellee.

MR. JUSTICE JUNIUS delivered the opinion of the Court.

Inez Beysolow, co-appellee in these proceedings, was employed by the management of Roberts International Airport (RIA) in the accounts department as account supervisor for nine years prior to her dismissal.

Co-appellee instituted an action of wrongful dismissal against appellant with the Ministry of Labour. The hearing officer found for appellee and awarded her an aggregate of one month pay for each year of service totaling nine months pay. The management of RIA took an appeal to the then Board of General Appeals, which confirmed the ruling of the hearing officer. The appellant petitioned the National Labour Court for judicial review. The court upheld the ruling of the then Board of General Appeals, but increased the award. It is from the ruling of the National Labour Court that appellant has appealed to this Court for final determination. The appellant has filed a eight-count bill of exceptions, but has asked us to determine the case on the following issues presented in her brief:

1. Whether or not the appellee, as employee, could refuse to carry out a legitimate instruction of her employer without a breach of her duty to the employer.

2. Whether the appellee committed a breach of her duty by reading and photo copying a document which the employer considered classified and which was later leaked to the public.

3. Whether the award made by the court is in keeping with the Labor Practices Law of Liberia.

Commencing in the reversed order, appellant argued strongly and contended that the award made by the National Labour Court is not in keeping with the Labor Law of Liberia and therefore the ruling from which the appeal has been taken should be reversed and the dismissal of appellee’ s complaint upheld by this Honourable Court.

The Act of the National Legislature Approved October 20, 1986 on the Establishment ofthe National Labour Court, section 23.4, Procedure on Review, states:

“In the conduct of all cases brought before it, the labour court shall be guided by the rules of the debt courts and shall make a finding of facts and conclusion of law thereon in accordance with provisions of chapter 23 of the Revised Civil Procedure Law of Liberia, and may revise, affirm or modify, wholly or in part, any judgment before it, as to any party and, when the interest of justice so requires, remand a case to the hearing officer or labor commissioner for further proceedings with such instructions or orders as may be necessary and proper.”

The National Labour Court, under the statute quoted, supra, is authorized to affirm, modify and reverse wholly or in part any judgment before it as to any party and, when the interest of justice so requires, remand with further instructions or orders as may be necessary and proper.

For the benefit of this opinion, we quote hereunder relevant portion of the National Labour Court’s ruling:

“From the record, there is no showing where it is substantiated that respondent Beysolow leaked out to the public the contents of the document petitioner considered as classified information, which is the basis of respondent’s suspension and subsequent dismissal, neither was there any showing that there was an investigation scheduled and the respondent Beysolow refused to submit herself as contended by management, nor was there any investigation conducted and the respondent was guilty, which will be a serious breach of confidence and/or dishonesty on part of the respondent that formed the basis of her suspension and subsequent dismissal.

Wherefore and in view of the facts, law and circumstances herein contained, it is the ruling of this Court that the decision of the Board of General Appeals is hereby confirmed and affirmed with modification. Since respondent Beysolow is wrongfully dismissed, and not declared redundant in which she will be paid one month for each year served, she is to be paid 12 months compensation amounting to $14,400 for wrongful dismissal, $1,200.00 for the suspension period, $1,200.00 for payment in lieu of notice, making the grand total of $16,800.00 or be reinstated, with the payment of her entitlement.

A “breach” is defined as “the breaking or violating of a law, right, or duty, either by commission or omission”, and “breach of duty is defined as “in a general sense, any violation or omission of a legal or moral duty. More particularly, the neglect or failure to fulfill in a just and proper manner the duties of an office or fiduciary employment.” BLACK’S LAW DICTIONARY 235 (4th ed.).

The one issue before this Court is whether or not an investigation into the alleged leakage of classified information was conducted by the defendant/appellant management, following the suspension of complainant, to which the latter was duly cited to appear but failed to do so. The records from the hearing officer show that there was no investigation conducted by appellant which co-appellee failed to submit herself to. It is required by law that: “. . .there must be an investigation properly conducted at the place of business of the employer to establish the accused employee’s innocence or guilt or else, the dismissal of the employee involved is legally unjustified.” The United Liberia Rubber Corporation v. McCauley, [1981] LRSC 34; 29 LLR 342 (1981). Appellant only alleged that appellee failed to submit to an investigation, but there is no showing by record that she was duly notified. Appellant proffered into evidence a letter dated May 24, 1985, but appellant’s witness said that said letter was never delivered to co-appellee. The co-appellee admitted attending a meeting convened on May 18, 1985, prior to her being suspended and the directive contained in the notice of suspension to “submit” to the investigation.

We believe and hold that the investigation, which should have been convened as a direct result of the suspension of the appellee on May 20, 1985, was never held. The evidence is overwhelming on the record that co-appellee did agree to submit herself to the investigation, therefore it became incumbent upon appellant to hold the investigation. Therefore the alleged charges: “Dishonest and Fraudulent Acts” for lifting confidential documents, which led to her suspension and subsequent dismissal had no basis. Therefore, the hearing officer and the Board of General Appeals did accord credence to the evidence properly and correctly. This Court has held that “… [the] facts shall be conclusive if supported by sufficient evidence on the record considered as a whole.” Vamply of Liberia v. Kandakai, [1973] LRSC 55; 22 LLR 241 (1973).

For the benefit of this opinion, we quote hereunder the alleged confidential information:

NOTE TO: Mr. Henry S. Gofan
SUBJ.: COMPULSORY LEAVE OF ABSENCE WITHOUT PAY
DATE: May 7, 1985

The RIA Workers’ Association has prepared a package of grievances which it has presented to the Minister of Commerce following the latter’s visit to the airport to inform the workforce about measures intended to be taken to offset some of the losses incurred in income because of the Pan Am strike action.

Representatives of the association will be meeting with the Minister at the ministry as soon as she returns to the country from official business and this will be followed by a visit to the airport by the Minister, mainly to meet with workers and discuss their problems and grievances at length.

The executive committee of the association has lately been confronted with numerous questions regarding the method in which the ‘compulsory absence’ option was applied by various departments and managers. Whereas the Minister pronounced that the measures would be applied ‘across the board,’ this was somehow reversed to affect only those in the lower income bracket with regard to the compulsory day off. Just a few random examples:”

“Dept. 1001
“L” was applied only to those lower income employees working with the VIP services section.
Dept. 1002
Manager and assistant not affected.
1205 Only secretaries were affected.
2021 All exempted
2123 All forecasters and manager not affected.
2226 Assistant manager not affected.
2329 Of all three captains who should have been affected, one was not, along with the manager. No reason why 0705 and 1139 should have been pardoned. (This is one case of dissatisfaction voiced out by the affected persons, although not put in writing.)
2432 None affected but with substantial holiday and overtime accruals.
30410308, 0714, 1047, 1332, 1644, 2311—all not affected. Our source informed us that although these individuals did take the compulsory day off, they were all marked for the days they did not work. Their respective shifts were supposed to be marked ‘L’ since they were given schedules of their compulsory absence.
3144 Secretary exempted.
3247Manager & assistant exempted.
40610303, 0417, 1616 and manager exempted

The only departments whose managers were affected are accounting and purchasing.

The association cannot get hold of all the information contained herein and I cannot give out either, although they need it to be included with the package to the minister when she comes. All they have are what representatives from the various departments gave off the record.

The chairman may like to talk with someone in the accounts office about time sheets and a few other items.

(Signed) Thomas N. Kwein”

Turning now to the third issue raised by appellant: was there refusal to carry out a legitimate instruction of the employer by appellee? The reason advanced in appellant’s document to appellee as ground for the suspension and dismissal, respectively, of co-appellee are quoted as follows: “Until you are ready to submit yourself fully to an investigation concerning the leakage of classified information from the accounts department, to the public, you are hereby suspended with immediate effect.”

Although the suspension of the co-appellee remained in full force and effect until her dismissal one month later, without any investigation being conducted by appellant, an altogether different reason was advanced for co-appellee’s dismissal as stipulated in the dismissal notice as follows: “Failure to comply with management’s instructions during an investigation, concerning the leakage of classified information from the accounting office.”

A perusal of the testimony of the lone witness of appellant, found on pages 1 and 2 of the minutes of December 17, 1986, reveals that nowhere, therein, did the witness allege or offer proof either of the alleged dishonesty, fraud, or of the co-appellee ever disseminating or divulging confidential business documents or information of the appellant.

According to the evidence adduced by both parties, the only instructions issued to the co-appellee during the meeting of May 18, 1985, was that she reduces to writing, in a statement form, what she narrated verbally at the meeting regarding the memorandum of Thomas Kwein to Mr. Henry S. Gofan. This instruction she fully complied with in a statement dated May 20, 1985, which statement is also quoted verbatim: “On Saturday morning, May 18, 1985, Mr. Joseph Lawrence and a panel asked me if I had seen a note to Mr. Henry S. Gofan, subject – compulsory leave of absence without pay dated May 7, 1985. I told them I had seen the note on Mr. Gofan’s desk and made a copy, took it to my desk and read it, but did not discuss or show it to anyone.”

The co-appellee did comply with the instruction issued on May 18, 1985, by writing the statement. Therefore, the ruling of the judge of the National Labour Court, to the effect that she was unjustifiably suspended and dismissed is amply supported by the records and should therefore be upheld.

The Labor Practices Laws of Liberia gives the employer the right to terminate the services of an employee who commits serious breach of his/her duty to the employer by disclosing the working secret of the employer or where the employee commits other serious offense or when the employee refuses to carry out legitimate instructions of her employer affecting an important issue to which management attaches great concern. Labor Practices law, 18-A:500 § 1508.

This Court held in an opinion delivered February 9, 1984 during its October Term, 1983 that: “The failure of an employee to carry out the legitimate instructions or orders of his employer when such instructions are within the power of the employer and are legal and reasonable is in our opinion a disrespect on the part of the employee to the employer for which the employee may be dismissed.”

In this case, as different from the Forkpah case, quoted supra, the evidence was conclusive that the instruction was not carried out as evidenced by the investigation. The failure of an employee to establish his/her innocence or guilt of breach of duty creates a strong presumption that the employee is guilty of serious breach of his/her duty.

Concluding, appellant contended that the award of the National Labor Court violates the labor laws in every respect. The labor law relative to wrongful dismissal reads:

“Wrongful Dismissal: Where wrongful dismissal is alleged, the Board of General Appeals shall have power to order reinstatement, but may order payment of reasonable compensation to the aggrieved employee in lieu of reinstatement. The party against whom the order is made shall have the right of election to reinstate or pay such compensation. In assessing the amount of such compensation, the Board shall have regard to:

1.(i) reasonable expectations in the cause 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; however, if there are reasonable grounds to effect a determination that the dismissal is to avoid the payment of pension, then the Board may award compensation of up to but not exceeding the aggregate of five years salary or wages computed on the basis of the average rate of salary received six months immediately preceding dismissal.” Labor Practices Law, 18-A:500 § 9, Wrongful Dismissal.

According to section 9 of the Labor Practices Law just quoted, when wrongful dismissal is alleged, the law provides that: “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; however, if there are reasonable grounds to effect a determination that the dismissal is to avoid the payment of pension, then the Board may award compensation of up to but not exceeding five years salary or wages computed on the basis of average rate of salary received six months immediately preceding the dismissal.” The contention of appellant to the effect that the National Labour Court committed a reversible error in increasing or modifying the award of the Board of General Appeals is not supported by law.

Section 1508, sub-paragraphs 3 and 4 give the employer the right to terminate an employee without any further claim if the employer gives the required notice of payment in lieu of notice. Failure to do this constitutes an offense or a wrongful dismissal. It is therefore illegal to award for wrongful dismissal and at the same time award in lieu of notice pay as was done in this case. This Court also held in the case Firestone Plantations Company v. Berry [1983] LRSC 27; 30 LLR 702 (1982), that the measure of award in the case of illegal termination is the aggregate of one (1) month pay for each year of service.

It is therefore the contention of appellant that awarding the appellee who had only worked for nine (9) years, twelve months pay, one month pay for the period of suspension and one month pay in lieu of notice making a total of 16 months violates the instructions of this Court as contained in Firestone Plantations Company v. Berry. The reasoning upon which the Berry was decided, we do say, is quite different from this case. Therefore, we find it difficult to use the holding in Berry to determine this case. The statute with respect to illegal dismissal will be fully complied with. Statutory requirements are mandatory.

In view of what we have narrated and the circumstances, coupled with the law cited, the judgment of the National Labour Court should be and the same is hereby affirmed with costs against the appellant. And it is hereby so ordered.

Judgment affirmed.