IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
CIVIL JURISDICTION

Case No: 2/06

BETWEEN

SETA KATEA
Plaintiff

v

NIUTAO KAUPULE
1st Defendant

AND

VAGUNA SATUPA
2nd Defendant

BEFORE THE CHIEF JUSTICE

S. Barlow for plaintiff.
S. Talu for defendant.

Hearing: 10 October 2006
Judgment: 16 October 2006

JUDGMENT

The plaintiff is a married woman from Funafuti married to a man from Niutao. In July 1999, she was appointed clerk/typist for the Niutao Kaupule. It was a full time appointment. There are not many opportunities for such employment on Niutao and the plaintiff would have been happy to secure it.

There were two rooms in the Kaupule office and she worked there with three colleagues. Her 'boss', as she described him, was the Kaupule Secretary; the second defendant.

Three months after her appointment she was sent by the Kaupule to Funafuti for three months typing and computer training. She received her certificate and returned to her work on Niutao. Her future appeared secure.

Then, in 2001, the second defendant started to make sexual advances to her. He would put his feet on her feet or sit on her table and place his feet on her thighs or touch her breasts, usually when she was typing. These incidents usually occurred in the lunch hour or when she was working after hours. As time passed he also started asking her to have sexual intercourse with him. His advances became more frequent until they occurred two or three times a week and sometimes even daily.

She asked him to stop. She told one colleague who has since died. She called another colleague as a witness who confirmed she had seen these advances. She had also heard the plaintiff angrily telling the second defendant to stop and go away when they were in the other room alone.

Although the plaintiff always resisted him, she sometimes answered his suggestions in the affirmative to get rid of him so she could go home but she never went to meet him.

The plaintiff's home was next to the Falekaupule and, one Sunday when most of the people in the village were at church, the plaintiff was sitting outside her home and the second defendant threw small stones to attract her attention. He told her she should go to the Falekaupule and they could have sexual intercourse inside. She refused and asked a male neighbour who was not at church, to come and sit at her house to protect her. That neighbour also gave evidence and confirmed the incident and the presence of the second defendant.

One evening when she and another secretary were working late, the second defendant turned off the lights as she was shutting down her computer. The incident scared her that he might actually rape her and she had to call to her colleague not to leave without her.

As this conduct continued, her whole life was affected. She felt threatened and frightened by his unwanted advances. Even her nights were passed in dread of returning to work the next day for fear of what he would do.

At the time, her husband was working on Funafuti. She did not think she could report to the Kaupule or the police. She did not believe they would help her. All she could do was to try and keep her job and avoid his advances. However, as time passed, he added the threat that, if she continued to refuse him, he could and would dismiss her.

Late in 2002, the plaintiff wanted to take her annual leave so she could go to Funafuti to spend Christmas with her family. The second defendant refused to approve it because she had not had sexual intercourse with him. She told him that she would consent on her return from leave and was allowed to go. After her leave she told him there was still no possible way she would agree. She noticed that he then stopped allocating work to her in the way he had previously done and also spoke to her in a different manner.

In January 2003, she had to take one or two days leave to look after her sick daughter. On her return the second defendant gave her a letter saying that the Kaupule had dismissed her for lack of competence. It was signed by the second defendant as Kaupule Secretary and gave her two days to complete any outstanding work.

She had been given no warning of the intended dismissal or any opportunity to be heard. She was advised she had a right of appeal to the Falekaupule and wrote a letter pointing out that the sexual harassment was the true reason for her dismissal. The chiefs refused to read it out to the meeting because it did not match the reason the Kaupule had given for her dismissal.

Dismissal in a community as small as Niutao is soon public knowledge and the plaintiff was ashamed and embarrassed about her dismissal and the reason given for it. She was unable to obtain work on the island and returned to Funafuti. Apart from two months working in a shop, she found no work on Funafuti until mid 2004 when she was appointed by the Funafuti Kaupule to a position similar to her post on Niutao.

This action is for damages for the tort of assault, for unfair dismissal and breach of her constitutional rights.

The defendants have filed a joint statement of defence denying all the allegations of sexual harassment but admitting there was a 'failure to give proper procedure in the termination of her employment' but further denying the reason for her dismissal was as she alleges.

At the hearing, the second defendant did not appear. Defence counsel did not seek an adjournment because, he advised the Court, the defendant had written to say he would not come because it would be 'shameful to be here'. He was clearly warned of the hearing and has failed to appear to challenge the plaintiff's evidence.

The defence called only one witness; the man who was Pule Kaupule at the time of these incidents. He admitted that the proper procedures for dismissal under the Falekaupule Act had not been followed and accepted that the proceedings in the Falekaupule did not amount to a fair appeal.

He told the Court the Kaupule had dismissed the plaintiff solely on the allegation of the Secretary that she 'was not doing her job properly'. He made no claim that any further enquiry had been made and he had not seen the letter of dismissal. He knew nothing of the allegation of sexual harassment at the time.

He told the Court he used to go to the Kaupule office once each week. He sought to support the finding of lack of competence on the ground that he had once asked her to give him a letter and she had opened the envelope in the wrong manner. He said he had told her at the time that she was not doing her job properly despite the training the Kaupule had given her. It was his only complaint and was the only time he spoke to her about her competence. That incident had been sometime in 2002.

The plaintiff gave evidence that the second defendant had once told all the staff together that they were not competent and should do their job properly and had once advised the plaintiff personally that she had to improve. However, she was never given a formal warning or reprimand and the defence do not claim any was given.

The plaintiff was a clear, careful and, I am satisfied, truthful witness. Her evidence was convincingly confirmed by her two witnesses. These are very serious allegations and the burden of proving them lies on the plaintiff. Although the civil standard on the balance of probabilities is the appropriate standard, the seriousness of the allegation requires a much higher degree of probability than many civil claims; almost to the criminal standard. I am satisfied to that standard that the allegations by the plaintiff of assault by the second defendant are true.

Assault is an act which intentionally causes apprehension of imminent harmful or offensive conduct in another. It need not be continued into actual contact but, if it is, it becomes a battery. Claims for assault generally include allegations of battery. That is the case for most of the actions of the second defendant but not for the suggestions of sexual intercourse which are solely assaults.

The tort is to protect an individual, not only from physical harm but also against any interference with his or her person which is offensive to a reasonable sense of honour and dignity. The assault may be proved even if it is only trivial and does not cause any actual physical harm but the insult to personal dignity is regarded as a serious component so aggravated damages may lie to compensate the outrage to the feelings of the victim.

This was far more than simply an attack on the plaintiff's dignity although that, in itself, was an important factor. It continued and escalated over a very long period of time. The second defendant abused his position as the plaintiff's superior in the certain knowledge that the plaintiff needed to keep her employment and would not lightly risk losing it. His use of the threat of dismissal if she continued to deny him was a serious aggravation. Part of the seriousness of sexual harassment is the knowledge that a complaint is likely to cause embarrassment to the victim and, together with the risk of unpleasant rumours, can be relied upon to discourage the offence being reported. The fact, in the present case, that it sometimes occurred in such a way that the plaintiff's colleague knew of it and, on one occasion, a male neighbour had to be called to protect her are further aggravating aspects.

I find the assaults proved and the second defendant liable.

All these assaults were committed by the second defendant in the course of his employment. It was a flagrant abuse of his position as Kaupule Secretary in relation to a subordinate employee. In those circumstances the Kaupule as the employer of the second defendant is vicariously liable for the assaults of the second defendant and I so find.

I am equally satisfied that that the true reason for the plaintiff's dismissal was her continued refusal to succumb to the advances and threats of the second defendant despite the threat of dismissal if she did not. I do not accept her competence in her work had any part in it. She had been working in the same post with virtually no complaint about her competence for more than three years and the allegation that she was dismissed for incompetence is, quite simply, nonsense.

Further, the Kaupule was seriously at fault in failing to follow the proper procedures for dismissing an employee. The previous Pule Kaupule said they had simply accepted the second defendant's allegation. That it was uncontradicted was the result of their blatant disregard of the plaintiff's right to a fair hearing. She was neither warned nor given an opportunity to be heard. Even when she appealed, it was determined by the Falekaupule in an arbitrary manner which showed only too clearly that there was no intention to consider the appellant's side of the case at all.

The defendants are liable for unfair dismissal.

On the evidence, I do not consider the suggested breaches of the plaintiff's constitutional rights under sections 19 and 28 add to the case and I make no finding on them. Future cases may need such a consideration but I do not think that is so here.

Therefore I find in favour of the plaintiff against both defendants for assault and against both defendants for unlawful dismissal.

The plaintiff's prayer is for general, special and punitive damages. Evidence was given of the plaintiff's earnings with the Niutao Kaupule, the shop on Funafuti and in her present employment with the Funafuti Kaupule.

I do not feel I have heard sufficient on damages. I shall hear submissions from counsel on the following issues:

1. The appropriate quantum of damages for the assaults.

2. The appropriate quantum of damages for unfair dismissal with particular reference to the provisions of the Falekaupule Act and Regulations and the precise nature of the plaintiff's appointment with the Kaupule.

3. The power of this Court to order exemplary (as opposed to aggravated) damages for the assaults and, if it has such power, whether the limitations placed on such damages in Rookes v Bernard apply.

Dated, 16th day of October 2006

CHIEF JUSTICE