In cross-examination the plff said : `I strongly feel the defendant Commission tion terminated my agreement unfairly.'
For his part, Christopher Goldsmith the present General Manager, Finance once of the defendant Commission and the sole witness called in defence frankly admitted that
he `was not employed by FBC at the (relevant) time'. He however confirmed that the plaintiff was offered a Service Contract and that `it is not a policy of FBC to pay compensation for unexpired terms of contract. Not done in the past'.
oss-examination the witness unconvincingly sought to disassociate the defendant Commission sion from Barry Ferber's letter of 1st December 1995 (Exhibit P2) and, although he accepted that the plaintiff's Service Contract did not cover redundancy payments, it was : `... a 2 year contract where at end of 2 years you walk away.'
I say `unconvincingly' because it is clear in my mind both from the correspondence and the plaintiff's testimony which I accept, that Barry Ferber, as the General Manager of the defendant Commission at the relevant time had both the actual as well as the ostensible authority to bind the defendant Commission by his letter of 1st December 1995.
The letter is written on the defendant Commission's rhead by the defendant Comm Commission's most senior executive and the plaintiff's
immediate superior and records the Board's decision `to invoke Clause 9' of the plaintiff's Service Contract. It further records in the second paragraph the author and the Board's (`we') agreement `to pay you a lump sum to cover the period to the end of your two year contract'. Whatsmore the author is appointed by the defendant Commission acting in pursuance of Section 10A of its empowering statute namely, the Broadcasting Commission Act (Cap.105) and specifically `... for the proper carrying out of the functions of the Commission'.
Further there has no denial by the defendant Commission of the general Manageanager's authority to bind the defendant Commission either
generally or in terms of the agreement recorded in his letter of 1st December 1995 and indeed such an arrangement (to use a neutral term) is tacitly admitted in para.6(b) of its Statement of Defence and in para.3(b) of the Statement of Agreed Facts signed by its solicitor and filed in Court.
If I may say soevidence of Mr. Goldsmith on this aspect of the case case struck me as being something of an after-thought contrived to further distance the defendant Commission
from any agreement or offer to compensate the plaintiff for the unexpired portion of her terminated Service Contract and quite unrelated to the pleadings or the realities at the relevant time.
Needless to say the premature termination of the plaintiff's Service Contract for no apparent reason was considered at the time, to be `not a pleasant situation' which needed to `be resolved satisfactorily with dignity and fairness to all'.
I turn next to consider the various s raised in the trial with the first being :
`Whether the defendant Commission could invoke. Cl9 of the plaintiff's Service Contract when it purporurported to do so ?'
In tegard plaintiff's counsel's submission is that the plaintiff's Service Contract was initially for a fixed term of two years and therefore could not be terminated prior to the expiration of that fixed term.
To resolve this issue it is necessn my view to consider a little of the contextual backgroundround to the Service Contract and more especially the actual words used in the document.
As to the background, the plaintiff said that prior to theu>Service Contract she had been in continuous employment with the defendant Commission for 31 years and was on the threshold of reaching the retirement age of 55 years. Her terms and conditions of employment during that time
was covered by a Collective Agreement between the Telecommunication Employees Association (of which she was a member) and the defendant Commission. She said the Collective Agreement (not produced in court), provided for
a redundancy payment calculated at the rate of 3 months pay PLUS 3 weeks pay for every year of completed service which, in the plaintiff's
case, would have entitled her to in excess of 100 weeks redundancy pay.
The plaintiff accepted that prior to the Se Contract she had had voluntarily resigned from the Association as she was considered `management staff'. She had signed the Service Contract prepared by the defendant Commission at its behest because `all people in key positions were required to sign'. She understood from the then General Manager at the time of signing the Service Contract that her employment with the defendant Commission was secure for at least 2 years. So much then for the historical background.
I turn next to consider the provisions of the Service Contra> of which ClausClause 1 provides :
`1. ;&nspp; Tse CommiCommissionssion shall employ the Programmes Manager and the Programmes Manager shall serve the Commission
as Senior Executive of the Commission and subject to the provision for determination of this agreement hereinafter contained and
employment shall be for a period of two (2) years commencing on the 26th day of April, 1995 and shall continue thereafter unless
and until this agreement shall be determined by either party hereto in the manner hereinafter provided.'
As to the meaning of this rather clumsily drafted Clause, plaintiff's counsel laid emphasis on the phrase
`employment shall be for a period of two (2) years and shall continue thereaunless ... determined by eiby either party hereto in the
manner hereinafter provided.'
This specific enumeration of `two (2) years, counsel says, is a cl a clear indication that the Service Contract was intended to be for an initial fixed term not subject to determination by either party and it is only `thereafter' that it may be determined by the exercise of Clause 9.
In other words, the expression `subject to the provision for mination of this agreement ment hereinafter contained' that immediately precedes the above-quoted phrase does not refer to Clause 9, rather it is referable to the right of either party to determine the contract as provided for in Clause 1 (not Clause 9) which, in turn, is only exercisable during the continuance of the contract after the 2 year fixed term has expired.
Defence counsel for his part laid emphasis on the phrasei>`... subject to the proviprovision for determination of this agreement hereinafter
contained' which counsel says subjects the entire contract and in particular, the `two (2) years' period specified in Clause 1, to the over-riding provisions of Clause 9.
I confess that both submissions have their relative merid demerits but after carefuareful consideration of the evidence and the contextual
background to the case, and reading the Service Contract as a whole and giving the words of Clause 1 their plain and ordinary meaning, and mindful that the Service Contract is the defendant Commission's document, I am constrained to uphold the submissions of the plaintiff's counsel.
Needless to say if it was the true intention of the defendant Commission the plaintiff's ServiService Contract should be determinable at any time then there would have been no reason to provide for any specific term in Clause 1 as was done, and further, Clause 9 would have made it clear that it was exercisable `at any time' which it does not.
Reading the contract this way not gives meaning and consistency to its various Clauses but mout more importantly provides `security' to both parties without being overly burdensome.
I receive some limited support from the judgment of the Cof Appeal in Dixon v. n v. BBC [1978] EWCA Civ 4; (1979) 2 All E.R. 112 in which it was :
Held - (ii) On the true construction (of statutory provisions dealing with the protection of an employee from unfair dismissal) a contract for a stated period, even though it was determinable by either party giving notice within that period, was a `contract
... for a fixed term'.
If I am wrong however in my view as to the meaning andct of Clause 1 & 9 of the Service Contract then I turn to consider whether a binding agreement existed between the plaintiff and the defendant Commission to compensate the
plaintiff for the unexpired portion of her Service Contract.
In this regard plaintiff's counsel forcefully submits that there was anement concluded between then the General Manager of the defendant
Commission and the plaintiff and confirmed in the General Manager's letter of 1st December 1995 (Ex.P2) where it states in para.2:
`As discuswe propose to pay you the three months notice pay immediately, at the end of which time we e we agree to pay you a lump
sum to cover the period to the end of your two year contract.'
This, counsel states, is furtonfirmed by the plaintiff's own evidence of her understanditanding as evidenced in para.2 of her acceptance letter (Ex.P3) which reads:
`My understanding of our referenced discussion is that in addition to ... (the three months pay in lieu of notice) you agree to pay me in a lump sum the equivalent to 17 months salary to cover the period to the end of my two year contract which
would have terminated on April 26, 1997.'
And whilst counsel accepts that the plaintiff's letter aa.4 discloses a misunderstaerstanding as to when ? the lump sum payment was to be paid, such misunderstanding does not detract from the otherwise clear agreement by the defendant
Commission to pay her `a lump sum' for the unexpired portion of the Service Contract.
Whatsmore counsel submits that Ex.P2(2)(2) inseverable parts or payments which had been partly performed not only by the defendant Commission in paying out the plaintiff's
salary in lieu of 3 months notice, but also, by the plaintiff immediately ceasing her employment with the defendant Commission and
not agitating for a redundancy payment or refusing a payment in lieu of notice.
Defence counsel on the other hand was equally forceful in his view tb>Ex.P1 at most, was anas an `offer' by the defendant Commission to pay compensation to the plaintiff at a certain time namely, `at the end of (three months)', which was not unconditionally accepted by the plaintiff who, in turn, counter-offered by seeking immediate payment.
In an effort to avoid the plaintiargument about `part-performance' Counsel alsl also sought to sever the payment of 3 months salary in lieu of notice from the payment of the lump sum compensation.
The former payment being in counsel's submission `a contractual payment under the Service Contract and not as part performance of Ex.P2' and, the latter being `a totally different agreement outside the Service Contract'. I cannot agree.
In the first placeearlier noted, Clause 9 of the Service Contracntract does not provide for a payment in lieu of notice and therefore in the absence of an implied term (which is nowhere pleaded or suggested) the
sole justification for the payment must be that the parties agreed, to adopt counsel words, `outside the Service Contract', to a consensual termination of the Service Contract on payment of the appropriate sum by way of a variation of Clause 9 and I so find.
Secondly, it would have been obvious to both parties (especially the plain at the time, that the secu security of tenure she had been
led to believe existed when she first signed the Service Contract was to be lost unless she was compensated for the unexpired portion and I accept and believe her evidence to the effect that she
would not have accepted the termination if the defendant Commission had not additionally agreed to pay her a lump sum for `the balance of (her) contract'.
Thirdly, given that it imon ground that the parties were well within their rights thts to enter into an agreement to compensate the
plaintiff for the unexpired portion of her contract, and given the Court's conclusion that there was one indivisible contract albeit involving two payments at different times, I cannot accept that the doctrine of severability is applicable to the contract which
is neither void or illegal in regard to either payment. To put it shortly severance does not arise in the existing circumstances.
For the foregoing reasons there will be judgment entered for the plaintiff in the sum of (14 months at $35,000 p.a.) = $40,833.00 subject to tax on a redundancy basis together with interest at 4% p.a. from the date of the Writ namely 23rd July 1996 until payment. Costs are also awarded to the plaintiff summarily assessed at $1,000.00.
D.V. Fatiaki
JUDGE
At Suva,
16th February, 2000.
HBC0345J.96S
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