Williams v Save the Children Fund of Australia [1998] SBHC 116; HCSI-CC 306 of 1997 (8 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 306 of 1997

LEONARD WILLIAMS

-v-

SAVE THE CHILDREN FUND OF AUSTRALIA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Civil Case No.: 306 of 1997

Hearing: 13 July 1998
Judgment: 8 September 1998

Bridge Lawyers for the Plaintiff
A. Radclyffe for the Defendant.

PALMER J.: The Plaintiff had entered into a contract of employment with the Defendant on 1st November, 1993 as the Co-ordinator of the Community Based Rehabilitation Programme (CBR); a joint programme between the Ministry of Health and Medical Services (MH&MS) and the Disabled People’s Rehabilitation Association (DPRA). A copy of that contract of employment is marked exhibit “2”.

By copy of letter dated 31st July 1995, the contract of employment was re-newed to the end or so of 31st October 1997 (see exhibit “3”). On 20th February 1997, the employment of the Plaintiff with the Defendant was formally terminated (see copy of letter marked as exhibit. “1”). The reason given was gross misconduct. Paragraph (2) of that letter explained in detail the circumstances surrounding the allegation. The only response of the Plaintiff in his evidence on this was that those allegations do not relate to his work with the Defendant. They related to a completely different entity in his position as the Treasurer of DPRA. At paragraph 3 of his Statement of Claim he pleaded that DPRA was a separate organisation with no formal or legal relationship with the Defendant. The Defendant therefore had no right to dismiss him on those grounds and comes to this court for damages for wrongful dismissal.

The Defendant on the other hand, takes the view that the dismissal without notice (that is, summary dismissal) was justifiable in the circumstances for the actions of the Plaintiff.

The question for this court to consider is whether such actions can justify a summary dismissal. Case authorities have established that examples of misconduct which may justify instant dismissal include: insolence with violence [Tomlinson v LMS Railway [1944] 1 All ER 537; and “borrowing” money from the shop’s till even though later replacing it (Sinclair v Neighbour [1967] 2 QB 279)].

In A Szakats Law of Employment 2nd Edition, at page 368, the learned Author states:

“Misconduct signifies behaviour inconsistent with the due and faithful discharge of the servant’s duties under the contract. The degree of inconsistency is the decisive factor in determining the presence of justification for the “strong measure” of summary dismissal.”

The learned Author however concedes that there is no fixed rule of law defining the degree of misconduct.

In the case of Clouston & Co Ltd v Corry [1905] UKLawRpAC 66; [1906] AC 122, a Privy Council case, Lord James made some pertinent comments on the question of justification:

“The sufficiency of the justification depended on the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfillment of the express or implied conditions of service will justify dismissal.”

The gross misconduct as adduced in evidence and not denied was the unauthorised use of $10,000.00 of ODA funds accounted for as having been spent on sanitation projects but in reality used by him.

In the peculiar facts of this case, I am satisfied the actions of the Plaintiff as described in evidence in his capacity as Treasurer of DPRA can amount to gross misconduct warranting instant dismissal. Such actions as described are inconsistent with his conditions of service. This respectfully is not so much denied as the fact that they do not relate to his work as Co-ordinator for CBR and therefore wrongful. The issue therefore for this court to determine is whether his actions as Treasurer of DPRA directly impact on his work as the Co-ordinator of CBR.

In order to fully understand the relationship between the Plaintiff and the Defendant and DPRA, their links would have to be examined in detail.

The Defendant in his Defence pleads at paragraph (2) as follows:

“As to paragraph 3 the Community Based Rehabilitation programme (CBR) is a joint programme between the Ministry of Health and Medical Services and the Disabled People’s Rehabilitation Association (DPRA). Its letterhead features both logos and its management committee comprises the President of DPRA, the chief rehabilitation officer of the Ministry of Health and Medical Services, the CBR Co-ordinator and the Defendant’s programme manager. The Defendant is and was at all material times a major funder of the CBR programme. It is admitted that the Plaintiff was Treasurer of DPRA at all times.”

In evidence this is not denied. It is clear therefore, contrary to what the Plaintiff pleads at paragraph 3 of his statement of claim·, that whilst DPRA may have been a separate organisation, nevertheless it is closely and directly involved with the creation of and work of CBR. The fact that the, letterhead of CBR (see exhibit “4”) features the logos of DPRA and MH&MS is direct evidence of DPRA’s direct involvement and link with CBR.

Further, it is not denied in evidence that the Management Committee of CBR comprises of the President of DPRA, the Chief Rehabilitation Officer of the Ministry of Health and Medical Services, the CBR Co-ordinator (the Plaintiff), and the Defendant’s Programme Manager. So here we see not only DPRA again represented by its President, but also the Defendant directly represented by its Programme Manager. The associations and link thus cannot be taken for granted, nor regarded as insignificant. Those organisations (DPRA and the Defendant) all have direct and vested interests in the work of CBR.

One other factor pleaded and again not denied in evidence was that the Defendant was a major funder of the CBR programme. The Defendant therefore had vested interests in the running of the CBR programme. But of even greater significance is the contract itself (exhibit “2”). The relevant part reads as follows:

“A work contract is entered this first day of November, 1993 between SAVE THE CHILDREN FUND AUSTRALIA (EMPLOYER ON BEHALF OF DPRA) and (EMPLOYEE) LEONARD WILLIAMS to the position of CBR/COORDINATOR (NGO).”

The crucial words are: “Employer on behalf of DPRA”. That can only mean one thing. That the Defendant is acting on behalf of DPRA and that therefore the actions of the Plaintiff are as much accountable to the Defendant as he is to DPRA. This is consistent with what was adduced in evidence that the Defendant is a major contributor to the CBR programme. Its contribution in that respect is in providing funds to employ the Plaintiff on behalf of DPRA, bearing in mind that the CBR programme is a joint programme between DPRA and MH&MS.

It would seem only logical therefore that any unauthorised use by him of funds of DPRA in his capacity as Treasurer must impinge directly on his job as the Co-ordinator of CBR. Whilst on one hand he occupies the office of Treasurer, on the other hand he occupies the post of CBR Co-ordinator for DPRA. His accountability and responsibility to DPRA are equally important. If he cannot be trusted to handle, manage and account for the monies of DPRA as Treasurer (a very responsible position involving a lot of trust), how could he be expected to do the same in his capacity as a full time employee of the Defendant on behalf of DPRA. The name at the front is SAVE THE CHILDREN FUND AUSTRALIA, but the person standing behind the scenes is none other than DPRA. Just as the Defendant is concerned about the actions of the Plaintiff, so must DPRA be. This it seems is the misunderstanding of the Plaintiff in this action; that the two organisations are separate and not related or linked to each other. Unfortunately, the evidence as adduced shows otherwise. But even if these two organisations are to be treated as separate entities, in terms of responsibility and accountability, they are so intertwined with each other that to treat them separately would not do justice to the cause they we involved in. The Plaintiff as Co-ordinator of CBR is as much accountable to DPRA as he is to the Defendant.

In so finding, I am satisfied the gross misconduct of the Plaintiff as Treasurer of DPRA referred to in, the termination letter, was as much relevant to the work of the Plaintiff as CBR Co-ordinator and relevant to the question of dismissal by the Defendant as “Employer on behalf of DPRA.”

In the circumstances, I find the claim for wrongful dismissal not made out on the balance of probabilities and must be dismissed with costs.

ORDER OF THE COURT:

CLAIM DISMISSED WITH COSTS.

ALBERT R. PALMER
THE COURT.