Tambe v Diocese of Vanuatu [2007] VUSC 106; Civil Case 29 of 2005 (14 December 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 29 of 2005

BETWEEN:

GEORGE TAMBE
Claimant

AND:

DIOCESE OF VANUATU
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Boar for Claimant
Mr. Saling for Defendant

Date of Hearing: 10 December 2007
Date of Decision: 14 December 2007

RESERVED JUDGMENT

Introduction

1. This is a claim for damages for unlawful dismissal of the Claimant from his employment as Diocesan Secretary of the Defendant.
   

Facts

2. The Claimant was appointed as Diocesan Secretary on 15th June 2002. A written employment contract was entered into dated 4th June 2003. It was for an initial term of 5 years at a starting salary of 1,080,000VT per annum plus 3% cost of living allowance. Clause 11 of the contract provided that it was subject to the other terms and conditions of employment for Church lay employees currently in force. That referred to a booklet to dated January 2003 entitled "General Guidelines of Service for Church Lay Employees".Section 7 covers disciplinary procedures. Particularly relevant are paragraphs 7.2 and 7.4, which are set out below:
   

"7.2 Where an employee is suspected of Gross Misconduct he/she will be suspended on half salary, pending investigations by senior management.

..................................

7.4 If the misconduct is proved, the employee will be dismissed immediately (summary dismissal).

Gross misconduct will include (amongst others) the following:

..........................

g) Immoral behaviour or sexual misbehaviour.

.........................."

3. During the Christmas holidays of 2003, the Claimant went back to his home village on Ambae for a holiday. While there he had a brief affair with the widow of his late brother. Her subsequent pregnancy may have been a result of this affair.
   
4. In any event rumors circulated in Ambae about the affair and came to the ears of the Bishop. On 24th May he questioned the Claimant about it. The Claimant acknowledged the affair. As a result the Bishop wrote following letter to him later that day.
   

"Dear George,

Following our discussion this morning, it seems appropriate at this time that our thoughts are with the Ascended Lord, to write this letter and announce your period under Church discipline will be from today, the 24th May to the 24th July.

According to our guidelines, you will be under half pay, and will not come into the office or perform other duties until the end of this period. During this time, Father Thomas and I will be calling on you at your house for prayer and counseling with you and your family. The Diocesan Tresurer will be acting Secretary during your penance.

Our Canons state (Title A Canon 6, B. Public Penance) that public penance has two objects:

1. a) to help a person who has sinned seriously to come to true repentance and to be fully restored to the fellowship of the Church and

b) to guard the Church against the scandal of its members continuing in unrepented sin and to give the Church the opportunity of receiving back penitents into its fellowship. Public penance must not be thought of as a punishment for sin.

I am very sorry about all this, but ask you to take this in the spirit in which it is given, and to use this time of penance to grow closer to our God, to your family, to come to terms with has happened and to get ready for the rest of your life in the Lord’s service.

Sincerely,

The Rt. Rev. Hugh Blessing Boe

Bishop of Vanuatu

5. The Claimant complied with the directions in the letter. He did not go to work. Indeed both himself and his family stayed at their home throughout the 2 months period. As indicated they were visited by the Bishop and Fr. Thomas for prayer and counselling during that period.

6. The last day of the period, 24th July 2004, was a Saturday. The Head of the worldwide Anglican church, the Archbishop of Canterbury, was visiting Luganville that weekend. The Claimant attended the service and took holy communion. He understood that he was welcomed back into fellowship.

7. Next day he went back to work. The Vicar General of the Diocese, who lived in Ambae, was in the office having come over for the Archbishop of Canterbury’s visit. On the Wednesday 28th July he questioned the Claimant about the affair and the Claimant gave him a full explanation of what had happened. The Vicar General’s enquiry was apparently consequent upon a letter dated 27th July sent to the Claimant by George Kiriau, General Secretary of the Church of Melanesia, about the matter. This letter was not before the Court.

8. Following the letter from Mr. Kiriau and the discussion with the Vicar General, the Vicar General wrote to the Claimant on 2nd August 2004 as follows:

"Dear Mr. Tambe,

Your Suspension

Further to a request from the General Secretary on the 27th July, 2004 regarding the above and that the situation be sorted out this letter serves to request that you answer to the allegations in line with section 7.2 of the General Guidelines of Service for Church Lay Employees.

The allegations being that you committed adultery during the Christmas holidays 2003 with Losalyn Mataihom the wife of your late brother, Simon Virareve causing pregnancy which she is now expecting.

We need you to answer this week in writing to the above allegations.

We look forward to your early reply".

9. The Claimant replied on the same day. In that letter he explained again fully and openly what had happened in regard to his sister-in-law. The letter also stated:

"Concerning the disciplinary action taken against me by the Bishop, I do not know whether it was a ‘suspension’ or a ‘penance’. You have requested me to "answer to the allegations in line with Section 7.2 of the General Guidelines of Service for Church Lay Employees". Honestly, I am not sure. I am confused about procedures. I would have thought that I have gone through this process by responding to the inquiries into the allegation made by the Diocesan Bishop before he decided on the cause of action to take against me as has already been explained in my general letter dated 30th July 2004, also copied to you. I assumed he would probably have taken into account the relevant provisions of the service guidelines, the Manuel of the Church of Melanesia (Canons), the Employment Act of the Republic of Vanuatu and perhaps mitigating circumstances before firming his decision.

...........................................................

To reiterate, I respect and abide by the decision taken by the Diocesan Bishop as my employer on behalf of the Church of Melanesia. This is my position in the matter of my discipline and employment status and this I have made very clear in my letter of 30th July 2004. That is, I have duly resumed my post of Diocesan Secretary of the Diocese of Vanuatu effective as from 26th July, 2004".

(His letter of 30th July 2004 presumably in response to Mr. Kiriau’s letter of 27th July 2004 is not in evidence either).

10. The Vicar General replied the next day in the following terms:

"Termination of employment with the Diocese of Vanuatu

Further to my letter to you of yesterday 2nd August, 2004 and your subsequent reply of today 3rd August, 2004. We faxed these to Honiara and received a call from the Archbishop of Melanesia Sir Ellison Pogo this afternoon confirming that in my capacity as Head of the Diocesan office to issue you this letter of termination as Diocesan Secretary effective forthwith. He will be sending you a separate letter accordingly.

This is in line with the Church of Melanesia General Guidelines of Service for Church Lay Employees Sections, 7.2, 7.3 and 7.4".

Submissions

11. Mr. Boar identified two issues:

a) Does the Vicar General have the authority to terminate the Claimant.

b) Does the suspension of the Claimant from 24th May to 24th July 2004 and his subsequent acceptance back to work on 26th July 2004 prevent subsequent termination.

12. As to the first issue he pointed to Canon 13 of the Canons of the Diocese of Vanuatu which provides that the appointment of the Diocesan Secretary shall be the responsibility of the Diocesan Bishop. He submitted that the responsibility for terminating an appointment should also be that of the Bishop. Under the Canons of the Church of Melanesia (of which the Diocese of Vanuatu is a part), the Vicar General may only act for the Bishop when the Bishop is absent from the Diocese or unable to perform his duties because of sickness or other serious reason. There was no evidence that the Bishop was absent or unable to carry out his duties. On that basis he argued that the Vicar General had no power to terminate the Claimant’s employment and the termination was therefore unlawful.

13. As to the second point, Mr. Boar submitted that the Defendant is estopped from purporting to terminate the Claimant on 3rd August 2004 given the prior circumstances of a suspension and a return to work. In addition he submitted that section 50 (5) of the Employment Act is relevant in that a dismissal for serious misconduct must be made within a reasonable time otherwise the employer has waived his right to terminate. In support he cited Government of Vanuatu v. Mathias [2006] VUCA 7: CAC 10 of 2006 (1 June 2006). He relied on that case for the proposition that the employer has the burden of proving serious misconduct and the termination for serious misconduct must be done within a reasonable time. With some prompting from the Court, he also submitted that section 7.4 should be read to include only immoral behaviour or sexual misbehaviour which is in some way related to the Claimant’s employment. He submitted that it was not in this case.

14. Mr. Saling Stephen’s submissions were quite simple. Section 7.4 of the General Guidelines gave the right to the employer to summarily dismiss an employee for gross misconduct which is defined to include immoral behaviour or sexual misbehaviour; that the claimant openly admitted immoral behaviour with his sister in law; that he was given an opportunity to be heard and the employer was entitled to terminate his employment. As to the issue of whether the Vicar General has the right to terminate the employment according to the Church Canons, he pointed out that this was not pleaded by the Claimant and also that the Claimant was seeking damages on the basis that the employment had been terminated not reinstatement on the basis that it had not been.
    

Discussion

15. Section 50 of the Employment Act [Cap. 160] is applicable in cases where serious misconduct is alleged against an employee. It is set out below:
    

"MISCONDUCT OF EMPLOYEE

50. (1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.

(2) None of the following acts shall be deemed to constitute misconduct by an employee –

a) trade union membership or participation in trade union activities outside working hours, or with the employer’s consent, during the working hours;

b) seeking office as, or acting in the capacity of, an employees’ representative;

c) the making in good faith of a complaint or taking part in any proceedings against an employer.

(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employer shall be deemed to have waived his right to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct.

It is implicit in section 6 of the Act that parties to an employment contract may not contract out of the provisions of the Act accept insofar as any such contract ensures more favourable conditions in any respect to an employee than those provided for in the Act. The contractual provisions in the General Guidelines imported in the Claimant’s contract do not appreciably detract from the provisions of section 50 of the Act except insofar as section 7.4 appears to require dismissal for serious misconduct whereas section 50 (3) provides that it may take place only in cases where the employer cannot in good faith be expected to take any other course. That particular difference was not subject of any argument in this case.

16. The burden of establishing serious misconduct or gross misconduct rests on the employer to establish on the balance of probability: Government of Vanuatu v. Mathias (supra). In this case, immoral behaviour or sexual misbehaviour are defined by the contract as gross misconduct. There was no dispute that the Claimant’s adultery with his sister-in-law was immoral behaviour. On consideration, I do not think that there should be implied into section 7.4 (g) a term that the immoral behaviour or sexual misbehaviour must be related to the work place.

17. There are a number of different other types of misconduct which are defined in section 7.4 as being gross misconduct. Almost all of them link the type of misconduct to the workplace for e.g. (c) being drunk and disorderly during working hours; (d) violence towards other staff causing personal injury; (e) causing wilful damage to anything owned by the employer; (h) using abusive or offensive language in or around the employer’s property. Section 7.4 (g) can be contrasted with these other types of gross misconduct in that there is no limitation to the workplace or to the involvement of other employees. The absence of any such limitation, because it appears in relation to other types of misconduct, appears to be intentional.

18. That can be understood in the context of the particular employment contract which is for the employment of a chief executive of a religious organization. In such a position, morality must be very important to the employer. It could cause serious problems to the Church and its reputation if one of its principal officers was known to be involved in immoral behaviour even if that behaviour is unrelated to the workplace. In those circumstances it is easy to see why the employer would consider such behaviour gross misconduct whether it was related to the workplace or not. I therefore decline to place any limitation on the wording of section 7.4 (g). I am satisfied that the Defendant has established gross misconduct on the Claimant’s own admission.

19. The next issue is the Vicar General’s right to terminate. It is true that the Claimant did not specifically plead this as a ground of unlawfulness. In fact he gave no particulars in his claim as to why the termination was unlawful. On the other hand the Defendant never sought any particulars at any stage. That being the case, in my view it is open for the Claimant to argue this point.

20. Nevertheless I do not consider that this argument is available given the history. Although the Vicar General may not have had the right according to the internal rules of the Diocese to terminate the Claimant’s employment, he purported to do so on behalf of the Diocese and the Claimant has not disputed the termination as a fact. He has not argued that it is an invalid or ineffective termination and sought a declaration that the employment contract continued in force. Rather he has accepted the termination as a fact and rather than seeking reinstatement has claimed damages because he claims the termination was unlawful. In those circumstances, the question whether the termination was carried out by the correct person within the Diocese is somewhat academic.

21. The final issue is the most difficult. This relates to whether the Defendant lost the right to terminate either by accepting the Claimant back to work on 26th July or by failing to dismiss within a reasonable time after becoming aware of the misconduct.

22. There is no doubt that the Bishop’s letter of 24th May 2004 confuses his spiritual role as pastor of the Claimant and his temporal role as representative of the Claimant’s employer. Public penance is a spiritual matter. On the other hand there seems no doubt that when the Bishop stated "according to our guidelines, you will be under half pay, and will not come into the office or perform other duties until the end of this period", he was referring to section 7.2 of the General Guidelines of Service for Church Lay Employees. While it is understandable that there be a fixed term for public penance, section 7.2 does not envisage a fixed term of suspension but instead envisages that investigations by senior management will take place within that period. Here it seems that formal investigations did not take place until the end of the suspension period when the Claimant returned to work. Once those formal investigations began by way of the letters of 27th July and 2nd August, the misconduct alleged was quickly established by the Claimant’s own admission and very quickly the decision was taken to dismiss him.

23. I do not think that an estoppel arose when events are viewed in their true context. Clearly when the Claimant was accepted back into fellowship of the Church when he attended service on 25th July, that was a spiritual event relating to his personal relationship with the Church. It did not relate to the contractual relationship between himself as Secretary and the Diocese as an employer.

24. Nor do I think an estoppel arose simply because he went back to work on the 26th July. It was within the next day or two that he was written to, then shortly after on a second occasion formally by the Vicar General, regarding the allegations against him in accordance with his employment contract. I do not think that the actions or inaction of the Diocese have been such that the Claimant was entitled to conclude that the matter was at an end simply because he came back to work for a day or two before the issue was raised.

25. Finally, there is the issue of waiver of the right to dismiss under section 50 (5) of the Act. There is no doubt that the employer in the person of the Bishop became aware of the serious misconduct by 24th May 2004, when the Claimant confirmed that to him. Then nothing was done in terms of any further action regarding the employment contract until some two months later. Thereafter the employer acted very quickly. The total time between the employer becoming aware of the misconduct and dismissal was just over 2 months. Although there was a delay during the suspension period when everything seemed to be suspended, I do not think the delay between awareness of the misconduct and the dismissal was so great as to be unreasonable.

26. I have therefore come to the conclusion that it has been established that the dismissal was lawful and this claim must therefore be dismissed.

27. There will be costs in favour of the Defendant at the normal rate to be agreed or fixed by the Court on application.

Dated at Port Vila, this 14th day of December, 2007

BY THE COURT

C.N. TUOHY
Judge