Tongi v Church Educational System of the Church of Jesus Christ of Latter Day Saints [2002] TOSC 5; C 0293 2001 (8 February 2002)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

C.293/01

BETWEEN:

SITALEKI TONGI
Plaintiff;

AND:

THE CHURCH EDUCATIONAL SYSTEM OF
THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS.
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

COUNSEL: Mr 'Etika for plaintiff
Mr Niu for defendant

Date of Hearing: 28-30 January, 2002.
Date of Judgment: 8 February, 2002.

JUDGMENT

The plaintiff has been employed by the defendant as a teacher since 1980 and has served in a number of Mormon schools in Tonga during that period. In 1996 he was appointed to Liahona Middle School but, at the end of the 1998 school year, his services were not renewed by the defendant. It was stated to be the result of problems with his teaching and his relationships with the pupils and his supervisor on the staff. He was given a number of options which included resigning and taking his accrued pension entitlement as a lump sum for which he opted. He claims that he was forced to resign and that it was effectively a dismissal. It is pleaded that his dismissal was in breach of his contract of employment, that he was not given the right to answer the charges upon which the decision to terminate his employment was based before the decision was taken and that the allegations against him were false. He claims damages of $200,000.00.

The Church Education System (CES) of the Church of Jesus Christ of the Latter Day Saints employs its staff on a series of annual contracts each running for an academic year but tenure was described in November 1984 in the following terms:

"A. While the Church cannot and will not guarantee employment to any individual for a definite and specified period of time, it endeavours through manpower planning to stabilise the status of Church employees.

B. Where success is obtained in the early years, and the teachers keep a growing edge which enables them to continue to perform well, they can expect to continue their employment on a career basis, and feel secure in their work."

That was not reprinted in January 1996 when new conditions of employment were included in the Teachers Handbook but it is clearly the present policy and intention of the CES.

During 1998, a number of incidents occurred which caused the Principal of the Middle School, Aine Vuki, and her immediate superior, Fololini Havea, to become concerned about the plaintiff's conduct and manner of teaching.

In his evidence, the plaintiff suggested on more than one occasion that these two women had developed a dislike for him and that they had, in various ways, engineered his dismissal because of that personal animosity rather than as a result of any valid cause for criticism of him. At one point he accepted the description of them both as his enemies and he suggested they had deliberately influenced his pupils to make false accusations against him.

It is not necessary to go into details about all these incidents in 1998 but reference should be made to two.

In one, following the plaintiff's absence for a short period during the school inter-house sports in February, the Principal spoke to him in her office about deducting some of his pay. There can be no doubt that the conversation was unpleasant. She wrote a letter of complaint the same day to Fololini in which she suggested the plaintiff had been extremely aggressive, had threatened to hit her and left shouting "I will do something to you."

The plaintiff denies the accuracy of her account. He admits there was a rancorous exchange but insisted that he "only" said, "Shut up or I will slap your face."

In the other incident Fololini, who had an office close to the plaintiff's classroom, wrote to him in July expressing concern at the behaviour of the students in his class and suggesting he should enrol in the education course that was held after school each Tuesday specifically to help teachers improve classroom management and improve their teaching skills. The plaintiff accepted this was written and pointed out that the letter specifically mentioned that he had not inflicted corporal punishment on that occasion.

The defendant maintains a system of annual appraisals of its teachers which is based on the supervisor's and the teacher's evaluations and also, occasionally, on a system of evaluation by the students. The latter is carried out by each student being given a form upon which are 16 set comments about the teacher such as "My teacher can keep control in the class". They give an evaluation between 1 and 4 on a scale printed on the form in which 1 is "Always" and 4 is "Never". At the end of the printed comments there is a space for "Other Comments". The students do not put their names on the forms.

The students in forms 1 and 2 were asked to carry out such an evaluation on the plaintiff in the latter half of 1998. The overall mark given by the students was very poor and the comments at the end gave cause for serious concern. There were repeated references to hitting the children, swearing at them, sleeping in class and leaving the class during lesson time. It was also suggested that he ate in class and that he traded food for good marks.

The plaintiff's self-evaluation, on the other hand, was good. On a scale of 1 (low) to 6 (high) he rated himself 6 or 5 on all but one of the twelve printed statements.

On 26 October 1998, there was a meeting of the Council at which the plaintiff was not present. They had before them for consideration a number of documents including those referred to above and, at the conclusion, a "Detailed Summary as of 26 October 1998" was prepared.

The Summary was set out under four headings; Students' evaluations, Evaluations, Attendance and Attitude. It concluded;

"In the light of his overall performance, the recommendation of the Council is that Sitaleki Tongi will no longer be employed with LDS Church Schools Tonga - effective 06 November 1998.

The following options are available:

1. Termination for cause (retirement is still available)

2. Resignation and early retirement

3. Resignation and deferred retirement"

On 3 November, the plaintiff was summoned to a meeting of the Disciplinary Council. There were nine members present including Aine and Fololini. The plaintiff was told of their concerns and that, after reading the various reports and other documents they had decided to hear from the plaintiff. He was given the Summary and it is minuted that he was told, "We want you to go through the reports and make comments if you have any. At the end of the summary reports, we have stated some alternatives for you. See if you need clarification."

The plaintiff told the court that he had not expected he was in line for dismissal and was shattered at the news. He said he was not aware of most of the allegations and in particular did not know the nature of the students' comments. He was so shocked he simply wanted to get out of the meeting and think of what he wanted to say. He was not given, he said, a chance to answer the charges.

The minutes of the meeting suggest the opposite. At the outset he answered the points under three of the four headings in the Summary. He denied the allegations of anger and swearing, stated the demand for food for marks was a joke, denied he threatened bodily harm to his supervisor and that he had any feelings of anger and hostility to the administration. The minutes suggest he admitted using corporal punishment but the witnesses who were present at the meeting agreed they had the view that he had denied it and I accept that he did so. He also disputed the right of the authorities to deduct pay for some of his absences.

The plaintiff does not accept the minutes are accurate. He told the court that he wanted to have time to think particularly because he was largely taken by surprise. In the end one of the members of the Council suggested they should adjourn and meet again on 5 November. Mr Niu, for the defendant, asked the plaintiff what he did in the time he had thus gained to remedy the false accusations. The plaintiff agreed he had done nothing. He wrote no notes of what he wanted to say, he asked no one to attend to speak on his behalf and he did not ask for any of the students to be examined about their allegations.

The plaintiff told the court that, when he arrived on 5^th, he was not given a chance to speak further. He points out that he knew there was no point in any event because he considered the final words of the Summary showed that a decision had already been made not to employ him anymore.

As has been said, in contrast to the impression given in the minutes of the meeting of 3 November, the plaintiff said he did not really defend himself because he simply wanted to get away from the meting. Having heard the evidence of some of the others present, I am satisfied the minutes give a true impression of what took place at the meeting.

In court the accused was fluent and articulate. He stated his case strongly and repeatedly and often ignored a question he had been asked if, by so doing, he could again repeat his case. He was vigorous in his attack on Aine and Fololini, repeating it at any opportunity and he was quick in the witness box to deny anything that was difficult to explain.

In particular, he denied emphatically that he had been given an opportunity to see the allegations before the meeting on 3 November. That was, he said, the reason for his difficulty in answering the charges and his anxiety to get out from the meeting to think. The student's evaluations, in particular, were, he said, not made known to him.

Despite the certainty of that assertion, in cross-examination by Mr Niu he had to agree that he had, in fact, been told of the students' comments. On 24 September Aine Vuki had prepared an annual record of the plaintiff's performance. It was shown to the plaintiff and he signed it on 29 September.

At the end of the form, under a heading "Additional Comments", Aine had typed:

"He has successfully completed 2 classes of Teacher Development and has made a commitment to attend more.

According to the students' evaluation, you Sitaleki need not to hit them or swear at them and you also need to stay put in the classroom during class hours."

The plaintiff's signature was immediately below that and when he was asked about it in court he not only denied having seen it but accused Aine of having deliberately added it to the form after he had signed.

He was shown a letter he had written on the same day he had signed the annual record.

"Madam,

According to the additional comments by students' evaluation on teachers where its said that I swore at the students. I had never sworn at any student as far as I remember.

Thank you

Sitaleki Tongi"

He then agreed that the reference to Additional Comments in that letter was undoubtedly a reference to the last remarks in the annual record and that they were there when he signed it.

Counsel points out the significant fact that, faced with three specific allegations, namely hitting, swearing and staying out of the classroom, and having taken the trouble to write in answer to it, he only denied the swearing.

He also suggested that he did not realise before the meeting on 3 November that Aine's complaint that he had threatened her was still to be considered. Again, a letter he had written to Personnel showed he knew the report was still being considered as a live issue. The letter is dated 10/12/98 but the plaintiff agreed that it was written according to the American style and was the 12 October. It said;

"This problem with Aine was already resolved. I went in to her office and said sorry and cried and asked her for forgiveness. She did forgave as she said. So this report shouldn't go against me."

I am satisfied the plaintiff knew only too well in September and October of that year that there were a number of allegations being made to his detriment and that he was given more that one opportunity to consider and answer them. I do not accept his assertion that he was so surprised on 3 November that he could not think of anything to say in his defence and I accept he did take the opportunity to answer.

The plaintiff agreed that the terms of his employment included an absolute ban on corporal punishment and abuse stated in the Teachers' Handbook in the following terms:

"Corporal Punishment

Physical and/or Verbal abuse of students or other employees are unacceptable and will result in termination."

In 1995 the plaintiff had been warned about the use of corporal punishment and made a commitment never to use it again. He insisted that he has not done so since

In view of the plaintiff's unswerving denial of the truth of any of the students' comments, the defendants called six of the students who had made the allegations. I was satisfied that they made those comments unprompted or influenced by any other person. I was also satisfied that the allegations of corporal punishment, offensive and abusive comments and absence from and sleeping in class were true. Whilst I was satisfied that the plaintiff did demand food for marks, I was not satisfied that he was making those remarks in a serious manner.

The Teachers Handbook also includes as grounds of termination, unexcused absence, neglect of duty, insubordination and "other inappropriate actions the supervisor deems sufficient to justify dismissal".

I have no doubt that the CES had sufficient and good reason to decline to offer him another contract. I am equally satisfied that he was given clear notice of the complaints that were being considered and adequate opportunity to give any explanation he wished. I do not accept his suggestion that he was intending to give explanations at the meeting of 5 November. I do not believe the plaintiff's denials of his use of corporal punishment nor do I believe his denial of abusive language to the pupils. I do not accept his explanation that his absences from the classroom during class were to seek assistance from the music teacher.

I am satisfied on the evidence before me that the accused was an inadequate teacher who was unable to control his pupils and who was quick to try and blame his failures on his colleagues. I am also satisfied that he has been careless of the truth in much of his evidence in court.

I am satisfied that the last lines of the Detailed Summary of 26 October amounted to a recommendation only and that the Council had not made up its mind. I am satisfied that they were specifically leaving the final decision open until the plaintiff had been given an opportunity to answer the allegations before them. I am satisfied that he understood that was the position and took the opportunity to give his explanations.

At the meeting on 5 November, the plaintiff was advised of his right to appeal to the CES Administrator. He did so in the form of a letter on the same day. However, before it was considered, he went to the Administrator and advised him that he would take the option of resignation and early retirement. On 13 November 1998 he wrote to him:

"Dear Sir:

I surely wish to resign from my duty as teacher in the Church Schools Tonga at the end of the school year 1998. I also want to have my early retirement benefits for future plannings. Thank you for everything.

Sincerely yours."

On 18 November the Administrator wrote a letter headed "Retirement Payout".

"Dear Sitaleki:

Congratulations on your retirement!

Because you have chosen the lump sum option for your retirement payout, please be aware that coverage for all benefits under the Deseret Benefit Plan for Tonga will cease upon the receipt of your lump sum payout. The Church will have no further obligations towards you from this date.

If you are agreeable to this, please sign the waiver below and we will release the cheque for your total lump sum payout."

The waiver referred to was typed at the bottom of the letter:

"I, Sitaleki Tongi, hereby accept the sum of T$43,083.21 as full and final settlement of any and all monetary obligations payable to me. I hereby waive all other benefits that I may be entitled to from the LDS Church Educational System effective from this 18th day of November 1998."

The plaintiff signed it on 19 November 1998 and he told the court that it was at about that time that he first decided to sue the CES.

As I have stated, I am satisfied that CES had good reason to cease employing the plaintiff. They had the right to do so and gave the plaintiff every opportunity to put his case before the final decision was made. I do not accept the plaintiff's suggestion that he was forced to resign. This was a clearly a dismissal and, as I have stated, for good reason. The option to allow him to resign was a generous gesture by the CES. I am satisfied the plaintiff understood the position he was in and made his choice freely. I am also satisfied that, in so doing, he abandoned his appeal.

The defence has suggested that the waiver was sufficient to prevent any claim for damages for wrongful dismissal. The Administrator made it clear that whether or not it amounted to a complete waiver, he would certainly not have given the cheque to the plaintiff if he had realised he intended to sue for more.

The burden of proving that the waiver provides a complete defence lies on the defendant. I am not satisfied it has proved that it does. The wording of the letter of 18 November makes it clear that what will cease on acceptance of the lump sum payout is all benefits under the Deseret Benefit Plan. He is asked to sign the waiver if he is agreeable to that.

The terms of employment of November 1984 explain the Deseret Benefit Plan. It is a voluntary contributory scheme, which provides for death, disability and retirement benefits.

I am satisfied that the invitation to sign the waiver is clearly with reference only to those benefits and any possible wider meaning in the words of the waiver cannot extend it without there being evidence that the signor was aware of the additional meaning.

Whilst it is not necessary to consider the question of damages, I should state that, had it been necessary, there was no evidence upon which an award could properly have been assessed. What little there was was vague and unsupported and, in fact, on the matter of the effect of dismissal on the plaintiff's obligations to pay the fees of two of his daughters at Brigham Young University, Hawaii, I am satisfied the plaintiff deliberately attempted to mislead the court.

The claim is dismissed with costs to the defendant to be taxed if not agreed.

NUKU'ALOFA: 8^th February, 2002

CHIEF JUSTICE