Esera v National University of Samoa [2003] WSSC 12 (8 August 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ROSITA ESERA
of Papauta, Lecturer.
Plaintiff

AND

THE NATIONAL UNIVERSITY OF SAMOA
a body corporate established pursuant to the National University of Samoa Act 1997.
Defendant

Counsel: TRS Toailoa for plaintiff
R Drake for defendant

Hearing: 28 July 2003
Judgment: 8 August 2003

JUDGMENT OF SAPOLU CJ

The defendant in these proceedings is the National University of Samoa (hereinafter referred to as "the university"). The university was first established under the provisions of the National University of Samoa Act 1984 and has been continued in existence by the provisions of the National University of Samoa Act 1997 (hereinafter, unless it is necessary to do otherwise, referred to as "the Act"). The plaintiff is an accounting lecturer in the faculty of commerce at the university. The present proceedings are concerned with a motion by the plaintiff for an interim injunction to have her reinstated in her aforesaid position from which she had been suspended by the vice-chancellor of the university. Even though not stated in her motion, it is clear from the submissions of counsel for the plaintiff, that the real purpose of seeking an interim injunction is to have the plaintiff reinstated pending the determination of her substantive action against the university for damages for wrongful suspension and for negligence.

The plaintiff was first appointed under contract as a lecturer grade II to the university’s faculty of commerce on 8 February 1999 for a term of two years. She lectured mainly in accounting courses for the University Preparatory Year (hereinafter referred to as "the UPY") students. After sixteen months of service, she applied for a double increment in salary. On 4 July 2000 the university granted her application. This double increment was to be effective retrospectively from 8 February 2000, the first anniversary of the plaintiff’s appointment. A new contract of employment offered by the university and accepted by the plaintiff was executed by the parties on 21 March 2001. Under this new contract of employment, the plaintiff was appointed to the position of lecturer grade I in commerce in the faculty of commerce to which she had been attached since her first appointment in 1999. One of the terms of this new contract is that the plaintiff’s appointment was subject to the provisions of the Act, the statutes of the university, and staffing policy as adopted by the council of the university. The plaintiff continued to lecture mainly in accounting courses for the UPY students.

Then about seven and a half months later, an article entitled "USP Blames Samoan Education System" appeared in the issue of one of the local newspapers dated 10 November 2001. This newspaper article reported an unprecedented and unusually high failure rate by first year Samoan students at the University of the South Pacific (hereinafter referred to as "the USP") in Suva, Fiji. The university became concerned and a senate sub-committee was established to look into and examine the validity of the newspaper article. From its inquiries, the sub-committee concluded that there was sufficient information to confirm the low achievement levels in accounting by Samoan students at the USP in the first semester of 2001. One of the recommendations the sub-committee made was for the university to send a commerce lecturer to Fiji to discuss with their counterparts at the USP issues which were relevant to the academic preparation of the UPY commerce students at the university for first year accounting studies at the USP in Fiji. The management committee of the university deliberated on that recommendation during its meetings held on 15 and 29 August 2002.

Apart from the university, the Government’s Staff Training and Scholarships Committee (hereinafter referred to as "the STSC") at its meeting held on 19 July 2002 considered the academic results by the Samoan students at the USP for the first semester of 2002. The secretariat of the STSC was then instructed to prepare an analysis of those results to determine the papers mostly failed by the Samoan students. The analysis placed before the STSC at its next meeting held on 16 August 2002 identified three subjects with the highest failure rate by Samoan students. One of these was accounting. The chairperson of the STSC who is the Minister of Education is also the pro-chancellor of the university. She became concerned about the results and she asked the vice-chancellor of the university, who is the representative of the university on the STSC, for the university to make continuing investigation to determine the reasons for the high failure rate of Samoan students at the USP and to consider ways to remedy the problem. It appears that for the first semester of 2001 and again for the first semester of 2002 the failure rate by Samoan students at the USP was high.

It was in these circumstances, as it appears from the affidavits and other material placed for the university before the Court, that the management committee of the university resolved in August 2002 to set up a review team with specific terms of reference to conduct an investigation into the matter. This review team consisted of a representative of the faculty of science and a representative of the faculty of commerce, both being lecturers at the university. At the end of their investigation, the review team prepared a report which was submitted together with course evaluation forms by former UPY accounting students to a special meeting of the management committee held on 27 January 2003.

I need not refer in detail to the contents of the report by the review team or the accounting students course evaluation forms that were submitted to the management committee. The clear picture which is shown from those documents is that most of the students who were taught accounting at the UPY level and had filled in the course evaluation forms or were interviewed by the review team were either critical or very critical of the plaintiff’s performance as an accounting lecturer. A report by the student counsellor at the university about the complaints made to her by some accounting students concerning the performance of the plaintiff as lecturer, was also very critical of the plaintiff. Comments obtained by the review team from commerce lecturers at the USP, and recorded in their report, were also critical of the course outlines that had been used to teach accounting courses to the UPY students at the university.

In the present proceedings, I have to treat all the critical comments made against the plaintiff in the report by the review team and by the students in the course evaluation forms as allegations or criticisms to which the plaintiff has not had the opportunity to reply. I have referred to those documents because the general basis of the plaintiff’s motion for an interim injunction is that her suspension from her duties by the vice-chancellor of the university was unlawful and wrong. In fact one of the specific grounds of the motion for an interim injunction is that the plaintiff’s suspension was without reasonable grounds and therefore constitutes a breach of her contract of employment.

On the basis of the information that was collected during their investigation, the review team, in their report, recommended the replacement of the plaintiff as accounting lecturer for the UPY students with an individual with the qualifications and attributes set out in their report. This report was accepted and approved by the management committee at its meeting that was held on 27 January 2003. At that time the first semester at the university was due to start in about a week’s time. The vice-chancellor of the university, by letter of 12 February 2003, then notified the plaintiff of the recommendation by the review team that she be replaced as accounting lecturer and requested her immediate resignation, or if she did not resign, she would be suspended forthwith from her duties pending the implementation of the disciplinary procedures provided under the statute for the discipline of academic and comparable staff and the policy manual. The plaintiff refused to resign. She was therefore suspended from her duties as from 12 February 2003. Up to now the plaintiff has been receiving her full pay and gratuity entitlement. There was some suggestion that if the suspension prolongs, the plaintiff may cease to receive payment of her gratuity entitlement.

After her suspension became effective, the plaintiff by letter of 3 March 2003 requested the pro-chancellor to intervene. The plaintiff says in her affidavit that she has not received a reply to her letter. So she has claimed against the university on the basis of vicarious liability alleging negligence against the pro-chancellor.

In her affidavit, the plaintiff says that the high failure rate of first year Samoan students at the USP has been a matter of some concern for some time. As a consequence, the management committee of the university set up a review team to conduct a study under specific terms of reference into the problem. She also says that it was not amongst the terms of reference of the review team to review her performance as a lecturer and no such review was done. However, the review team, in their report, recommended that she be replaced.

It is true that there is no specific or express requirement in the terms of reference of the review team for them to review the plaintiff’s performance as a lecturer. But the terms of reference expressly required the review team, amongst other things, (a) to review the factors influencing the success rates of first year Samoan students based on information collected from interviews with USP academic and administrative staff, first year Samoan students, existing UPY students, and student counsellors; (b) review in the light of the information collected the relevant UPY programmes; (c) review the comments and recommendations of the USP lecturers particularly those with low pass rates for Samoan students; (d) review and evaluate the views of students expressed through interviews and questionnaires; and (e) make recommendations based on the findings of the review team. It was on the basis of the findings made by the review team in the course of their investigation that the recommendation was made in their report to the management committee to replace the plaintiff as a lecturer. It is difficult to see how it can be said that that recommendation was not within the parameters of the terms of reference of the review team as already set out.

Furthermore, even though the management committee accepted and approved the report by the review team, they did not replace the plaintiff straightaway. The plaintiff was informed through the vice-chancellor of the recommendation in the report of the review team that she be replaced. The vice-chancellor then invited her to resign, or if she did not resign, she was suspended forthwith pending the implementation of the disciplinary procedures under the relevant statute and policy manual of the university. Here, it should be noted that suspension is part of the disciplinary procedures under the relevant statute and not some act unrelated to those procedures. Presumably, when further disciplinary procedures are implemented, the plaintiff would be given the opportunity to comment on and reply to the findings and recommendation of the review team that she be replaced. In fact it seems that would have been achieved at the disciplinary hearing held on 26 April 2003 but counsel for the plaintiff objected to the admissibility of the report by the review team and the students course evaluation forms. Up to that point there had been no breach of the requirements of procedural fairness or natural justice by the university on the basis of the material placed before the Court.

Following the plaintiff’s suspension, eleven charges were prepared by the university after consultations between the registrar of the university and the university’s legal adviser who is not the same lawyer as counsel appearing for the university in these proceedings. Notice of those charges was then conveyed to the plaintiff by memorandum of 7 March 2003 and the hearing of the charges was set down for 5 April. In terms of the said memorandum ten of the eleven charges against the plaintiff were based on alleged breaches by the plaintiff of the university’s academic and comparable staff policy manual said to have constituted breaches of her contract of employment. A committee called the Academic Staff Performance Review Committee (hereinafter referred to as "the ASPRC") was to hear the charges on 5 April. However, the hearing had to be further adjourned to 26 April.

The hearing that finally took place on 26 April, according to the affidavit of the chairman of the ASPRC, was very frustrating and confusing due to the constant objections and submissions by counsel for the plaintiff as to the admissibility in evidence of the report by the review team and the students course evaluation forms. The ASPRC was told they could not accept into evidence the said documents unless all the students who had completed the course evaluation forms were made available for cross-examination. That was not possible, as according to the affidavit by the university’s legal adviser, all the students concerned were attending the USP in Fiji at the time. In legal terms, the objection by counsel for the plaintiff was essentially that the report by the review team and the students course evaluation forms were hearsay and therefore not admissible in evidence. I must say that this objection is untenable in law. As I will explain later in this judgment, the rule which excludes hearsay from a trial before a Court of law does not apply to proceedings before a disciplinary tribunal. Hearsay is admissible in such proceedings. So the report by the review team and the students course evaluation forms should have been admitted in evidence at the hearing held on 26 April before the ASPRC.

In his affidavit, the university’s legal adviser says that at the conclusion of the evidence before the ASPRC, counsel for the plaintiff was given the opportunity to make submissions. The plaintiff and her counsel then waited outside whilst the ASPRC deliberated. The university’s legal adviser further says that during the ASPRC’s deliberation there was much discussion of the legal issues raised by counsel for the plaintiff in relation to matters of evidence and procedure. It was evident that there was some confusion. He advised the ASPRC, whose members were all non-lawyers, that it was not appropriate for them to make legal rulings and a second legal opinion should be sought, particularly as to the admissibility of the documents objected to. The ASPRC then considered each charge and after consultation with the university’s legal adviser decided that three of the charges were to be dismissed for lack of evidence and the remaining eight charges were to be withdrawn. These eight charges were to be withdrawn on the ground that there was evidence, but some of the evidence which was supposed to be made available to the ASPRC was not made available, and the university should be given the opportunity to look further into those matters. The plaintiff and her counsel were then called back and were advised by the ASPRC of their decision. There are certain aspects of the hearing that was held which have caused me concern and I will deal with them later. But I must, for the time being, proceed on with the narrative of events that are alleged to have occurred.

Following the decision of the ASPRC, the vice-chancellor of the university wrote to the Attorney-General by letter of 5 May 2003 seeking a "second legal opinion" on whether the report by the review team and the students course evaluation forms were admissible as evidence in disciplinary proceedings before the ASPRC. The Attorney-General, as it appears from the affidavit of the registrar of the university, referred the vice-chancellor’s request to a member of her legal staff. According to the registrar, he followed up the request by the vice-chancellor to the Attorney-General by making regular phone calls in May and June to the member of the Attorney-General’s legal staff who was handling the request. Then by letter of 9 July 2003 under the signature of the Attorney-General, the vice chancellor was advised that the report by the review team and the student’s course evaluation forms were, in the Attorney-General’s opinion, admissible in evidence in disciplinary proceedings before the ASPRC. By that time, counsel for the plaintiff had already filed a motion in Court on 1 July 2003 for an ex-parte interim injunction to have the plaintiff reinstated. I ordered that the motion should be on notice to the university. After a few adjournments to enable the university to engage counsel, the motion was finally heard on 28 July. But before I deal with the motion, there are three matters concerning the hearing that was held before the ASPRC that I want to deal with first.

Hearing before ASPRC

The first aspect of the hearing before the ASPRC that I have to comment on is the involvement of the university’s legal adviser, because in my opinion, it has affected the validity of the decision that was made by the ASPRC. I say that now, even though there is no challenge to the validity of that decision, because if further disciplinary proceedings are to be taken, the procedure that was followed at the ASPRC hearing should not be followed again.

In the affidavit by the university’s legal adviser, he states that he was instructed by the university to advise on several matters including the matter regarding the plaintiff. He also says that he was asked by the university to review the report by the review team, the staff policy manual, the plaintiff’s contract of employment, and an internal memorandum from the dean of commerce to the vice-chancellor. He was also engaged by the university to prepare the charges against the plaintiff and the charges that he prepared were the charges that were issued against the plaintiffs. Thus there is no doubt that he was indeed the lawyer and legal adviser to the university. However, it is also stated in the affidavit by the university’s legal adviser that he assumed the role of adviser on procedure to the ASPRC at the disciplinary hearing that was held. At the conclusion of the evidence when the ASPRC went into deliberation, he was present throughout with the members of the ASPRC giving them advice on legal issues. He advised them to dismiss three of the charges and withdraw the other eight which could be refiled in the future. That advice must have been acted upon by the ASPRC for that was precisely the decision that the ASPRC later conveyed to the plaintiff and her counsel.

It is clear that the ASPRC was given the task of hearing the charges brought by the university against the plaintiff and to come to a decision. Thus the ASPRC was the decision maker; the "judge" at the hearing in other words. The university and the plaintiff were the parties. In this kind of situation, a lawyer may not act as the legal adviser to a party and to the decision maker in the same proceedings. But that is what happened here. The lawyer concerned had taken an active part in instituting the proceedings by preparing the charges for the university against the plaintiff and advising the university on the matter as legal adviser to the university. At the subsequent hearing before the ASPRC, he acted as the legal adviser to the members of the ASPRC during their deliberation whilst the plaintiff and her counsel were asked to wait outside. The lawyer may be completely honest, but that is not the issue. The issue is that justice must not only be done but it must also be seen to done. If there is a real danger of bias in the decision-making process, that is sufficient to nullify a decision that has been arrived at.

The principles of natural justice or procedural fairness apply to disciplinary tribunals. Non-compliance with those principles may render a decision by the tribunal void. The tribunal in these proceedings, if it had wanted a legal adviser, should have engaged a different lawyer in order to avoid any appearance or real danger of bias in its decision-making process. The legal adviser to the university would then have remained with the university which was one of the parties at the hearing. The ASPRC should have been advised along these lines.

There is another aspect of the hearing that was held which is also a cause of concern. Counsel for the university in the present proceedings for an interim injunction told the Court that the vice-chancellor suspended the plaintiff from her duties under s 1 (4) of the statute for the discipline of academic and comparable staff. Section 1 (4) provides:

"The vice-chancellor may at any time suspend any staff member from his/her duties if, in the vice-chancellor’s judgment, the circumstances so require. In that event, the procedures set out in this statute shall be initiated within fourteen days of the suspension, and a report made to a pro-chancellor."

The disciplinary procedures to be initiated following a suspension are then set out in detail in the statute. The first step to be taken following a suspension, is that where the vice-chancellor receives an allegation of "misconduct", as defined in s 1(1) of the statute, which is serious enough to require disciplinary investigation, he may refer that allegation within fourteen days to a preliminary committee. But if there is any special urgency, then the vice-chancellor may refer the allegation direct to the standing disciplinary committee. Other disciplinary procedures set out in the statute then follow depending on whether the allegation is referred to a preliminary committee or to the standing disciplinary committee.

It would appear that the disciplinary procedures set out in the statute were not followed in this case even though counsel for the university had pointed out to the Court that the suspension of the plaintiff from her duties was made pursuant to s 1(4) of the statute. The matter was referred to the ASPRC but that body is not mentioned at all under the statute for the discipline of academic and comparable staff. It is only in the policy manual that mention is made of the ASPRC. I have referred to this matter in order to draw it to the attention of counsel for the university as it has caused some concern to the Court. But I express no conclusive views on it as it was not covered in the submissions of counsel.

The third matter is the admissibility of hearsay in the proceedings before the ASPRC which had caused much confusion. It must be pointed out that proceedings before a disciplinary tribunal should not be treated as proceedings before a Court of law. The nature of the two proceedings are different and should not be treated in the same way. It must be borne in mind that the rules of evidence, which include the rule against the admissibility of hearsay, which apply to a trial before a Court of law, do not apply to proceedings before a tribunal. A tribunal is not bound by such rules. Hearsay is admissible in such proceedings and may be taken into consideration by a tribunal in forming its decision. But before doing so, the tribunal must give a fair opportunity to the person concerned to comment on or contradict such evidence. The tribunal should then make due allowance when assessing the weight or worth to be accorded the hearsay evidence by having regard to the fact that the maker or author of the hearsay was not available for cross-examination. The common law position on the admissibility of hearsay in proceedings before a tribunal has been laid down in a number of English authorities. I need only refer to some of those authorities.

In one of the leading English legal texts Principles of Judicial Review (1999) by de Smith, Woolf and Jowell, it is stated at pp 340-341:

"If a party to proceedings claims that he suffered an injustice because the non-appearance of a witness has made it impossible to cross-examine him, an attack on the validity of the proceedings may seem to be justified but may well prove to be abortive. A tribunal may be entitled to base its decision on hearsay, written depositions or medical reports. In these circumstances, a person aggrieved will normally be unable to insist on oral testimony by the original source of the information, provided that he has had a genuine opportunity to controvert that information. It is the responsibility of the decision maker to make due allowance for the lack of an opportunity to cross-examine when assessing the evidence."

In Miller Ltd v Minister of Housing and Local Government [1968] 2 A11 ER 633 at 634, Lord Denning MR with his usual ability to express complex legal principles in simple language, stated the position in these words:

"The inspector relied on Mr Fogwill’s letter. So did the Minister in his decision. Counsel for the appellants said that they ought not to have relied on it at all. It ought not even to have been admitted because it was hearsay. It was not on oath, no opportunity was given to test it by cross-examination, and it was objected to. Counsel said that in these circumstances it was contrary to natural justice for it to be admitted.

"In my opinion this point is not well founded. A tribunal of this kind is master of its own procedure, provided the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a Court of law (see R v Deputy Industrial Inquiries Commissioner, ex parte Moore [1965] 1 A11 ER 81)..... Hearsay is clearly admissible before a tribunal.

"No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it (see Board of Education v Rice [1911-1913] All ER Rep. 36 and R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965]1 All ER 81)."

In similar vein, Lord Denning MR in Kavanagh v Chief Constable of Devon [1974] 2 All ER 697 stated at p.698.

"It seems to me that the Crown Court is in the same position as the court of quarter sessions. The Crown Court is to try cases according to the same rules as the court of quarter sessions used to do. The court of quarter sessions, when trying criminal cases, applied the rules of evidence applicable to criminal cases. But from time immemorial the court of quarter sessions exercised administrative jurisdiction. When so doing, the justices never held themselves bound by the strict rules of evidence. They acted on material that appeared to be useful in coming to a decision, including their own knowledge. No doubt they admitted hearsay, though there is nothing to be found in the books about it. To bring the procedure up to modern requirements, I think they should act on the same lines as any administrative body which is charged with an enquiry. They may receive any material which is logically probative even though it is not evidence in a Court of Law. Hearsay can be permitted where it can fairly be regarded as reliable. No doubt they must act fairly. They should give the party concerned an opportunity of correcting or contradicting what is put against him. But it does not mean that he has to be given a chance to cross-examine. It is enough if they hear what he has to say. This was all made clear by the decision of this Court in Miller Ltd v Minister of Housing and Local Government [1968] 2 All ER 633."

See also Wilson v Esquimalt and Nansimo Pty Co [1922] 1 AC 202 where the Privy Council, on an appeal from Canada, held that the hearsay rule on the admissibility of evidence did not apply to proceedings before the British Columbia Lieutenant-Governor in Council which were not proceedings before a Court of law.

That brings me back to the plaintiff’s motion for an interim injunction.

Interim injunction

The approach to be taken by the Courts in considering whether to grant or refuse a motion for an interim injunction is well known to lawyers. There was no dispute on the matter in this case. The authorities cited by counsel also re-confirm what has been the settled approach for a long time to proceedings for an interim injunction pending the determination of a substantive action by a plaintiff. The approach consists of two stages. At the first stage the Court considers whether there is a serious question to be tried. This is often referred to as the threshold test. It must be stressed that this test is not simply whether there is a question to be tried, it is whether there is a serious question to be tried which would justify interim intervention by the Court. Sometimes, perhaps more often than it should have been, the word serious which qualifies the word question is either overlooked or not given due weight. To simply state that a question is a serious one without more is also not sufficient.

The approach I propose to adopt in determining whether there is a serious question to be tried which justifies interim intervention by the Court is that stated in the case of Shotover Gorge Jet Boats v Marine Enterprises Ltd [1984] 2 NZLR 154 at 157 where Hardie Boys J states:

"[It] is nonetheless my view that where a plaintiff has established that he has a serious question to be tried, the relative merits of the parties’ cases ought not to assume prominence in a consideration of where the balance of convenience lies, as otherwise the Court runs the risk of, in effect, trying the substantive action on the usually incomplete material available before it on what is often an urgent application for an interlocutory order. That does not mean to say, of course, that in determining whether or not there is a serious question to be tried the Court should not consider carefully the merits of the plaintiff’s claim, both in fact and in law, and if necessary embark on a full examination of the legal issues involved; because it is obvious that if, on the facts presented, the law can give the plaintiff no remedy, then he cannot obtain interim relief – see Sutton v The House of Running Ltd [1979] 2 NZLR 750, 753.

"I emphasise this point, because argument on the present motion centred principally upon the strength of the plaintiff’s case, Mr Shiels submitting that the evidence before the Court does not disclose that there is a serious question to be tried, or alternatively that the plaintiff’s ease, even if arguable, is weak indeed."

In Shivas v BTR Nylex Holdings NZ Ltd [1997] 1 NZLR 318, 322, the Court refused an application for an interim injunction because the plaintiff had not established a serious question to be tried to the level which would justify interim intervention by the Court.

The sole purpose of the plaintiff’s motion for an interim injunction in this case, is to have her reinstated in her position as a lecturer in commerce at the university from which she had been suspended by the vice-chancellor. Her counsel in his written submissions has put forward four questions claimed to constitute a serious question to be tried for the purpose of the motion. These are: (a) whether the invitation given by the vice-chancellor of the university to the plaintiff to resign contravenes the policies of the university which form part of the plaintiff’s contract of employment; (b) whether the plaintiff’s continuing suspension contravenes s 21 (7) of the Labour and Employment Act 1972; (c) whether the plaintiff’s continuing suspension is wrongful and a breach of the plaintiff’s contract of employment; and (d) whether the pro-chancellor and vice-chancellor were negligent in the circumstances. I will now deal with each of these questions in turn.

With regard to the first question whether the action of the vice-chancellor in inviting the plaintiff to resign from her position as a lecturer at the university contravenes the policies of the university which form part of the plaintiff’s contract of employment, I have looked at the university’s staff policy manual and its statutes as well as the plaintiff’s contract of employment and I have not been able to find any policy of the university which the vice-chancellor had contravened by suspending the plaintiff from her duties, which he had the power to do. No such policy was also drawn to the attention of the Court.

The vice-chancellor, of course, is the administrative head of the university. As such, he would be concerned with the good administration of the university. Under the terms of the plaintiff’s contract of employment with the university, she was responsible to the vice-chancellor, through the dean of the faculty of commerce, for the satisfactory performance of her duties. The review team had tabled their report before the management committee of the university. The replacement of the plaintiff as accounting lecturer for the UPY students was recommended in that report. The management committee accepted and approved the report. The vice-chancellor then invited the plaintiff to resign with payment to her of six months salary and six months gratuity entitlement, but if her resignation was not forthcoming then disciplinary proceedings will follow. I do not see the vice-chancellor’s action to be in any way a violation or assumption of the power to terminate a staff member given to the council under the Act. In my opinion, an invitation to resign is not the same as a termination. I also do not see anything that is improper or unreasonable in the vice-chancellor inviting the plaintiff to resign given the background circumstances which led to that invitation being made. As the administrative head of the university and the person to whom the plaintiff was responsible for the satisfactory performance of her duties, the vice-chancellor would, in the circumstances, be the most logical person to invite the plaintiff to resign. The invitation was also not without foundation, even though the plaintiff, at that point in time, had not been given the opportunity to reply to the allegations against her. The plaintiff was also free to accept or refuse the invitation. In similar circumstances in other areas of employment, employees are sometimes invited to resign. Such an invitation has never become a justiciable issue where the person who makes the invitation has been sued in Court for making the invitation. In fact in some of the instances where an employee has been invited to resign, that has sometimes been seen as providing the employee with the opportunity to take the honourable way out. I am not here suggesting in any way whatsoever that the plaintiff should have accepted the invitation by the vice-chancellor to resign. It may turn out that she was fully justified in her refusal to resign. What I am saying, however, is that, on the basis of the material presently before the Court, the invitation made by the vice-chancellor did not breach any university policy or the plaintiff’s contract of employment or any law for that matter. I conclude, therefore, that the first question does not constitute a serious question to be tried which would justify interim intervention by the Court by way of an injunction.

With regard to the second question, it was submitted for the plaintiff that her continuing suspension contravenes s 21 (7) of the Labour and Employment Act 1972. Section 21 (7) provides:

"An employer may without notice or payment in lieu of notice dismiss a worker employed by him on the grounds of misconduct, provided that instead of dismissing the worker an employer may –

(a) instantly downgrade the worker; or

(b) instantly suspend him from work without pay for a period not exceeding three days."

I am of the clear view that s 21 (7) of the Labour and Employment Act 1972 does not apply to what is in issue in the present proceedings. In the first place, the Labour and Employment Act 1972 is a legislation that deals generally with labour and employment matters. The National University of Samoa Act 1997, on the other hand, is not only later in time, but it is also a special legislation which deals specifically with a particular subject matter which is the national university. The National University of Samoa Act 1997 also contains special provisions of its own for the appointment and termination of appointment of academic and other staff by the council of the university (s 26 (2) (c )). Section 28 of the Act then empowers the council to make statutes as may in its opinion be necessary or expedient for the administration of the affairs of the university. Such statutes may be made with respect to the management, good government and discipline of the university (s 28(2)(a)), the terms and conditions of employment of members of the staff (s 28(2)(f)), and any other matter required or permitted by the Act to be provided for by statute (s 28(2) (l)).

The statute, which is relevant, is the statute for the discipline of academic and comparable staff. Under the contract of employment which was executed between the university and the plaintiff on 21 March 2001, it is there provided in paragraph 4 that the appointment of the plaintiff is subject to the provisions of the National University of Samoa Act 1997, the statutes of the university and the staffing policy as adopted by the council of the university. There is no mention of the Labour and Employment Act 1972.

As also pointed out by counsel for the university, the suspension of the plaintiff by the vice-chancellor which has been on full pay, was made pursuant to s 1 (1)(4) of the statute for the discipline of academic and comparable staff. Section 1 (11) (1) of the statute then provides that where the vice-chancellor receives a written allegation of misconduct which in his opinion is serious enough to require disciplinary investigation, he may within fourteen days refer the allegation to a preliminary committee. But if the circumstances of the complaint are of special urgency, the vice-chancellor may refer the complaint direct to the standing disciplinary committee. There is no doubt in my mind that the suspension may still continue during those two fourteen day periods which would be inconsistent with the three days period of suspension without pay provided in s 21 (7) of the Labour and Employment Act 1972. Further, disciplinary procedures which will undoubtedly take up more time are then provided in the statute.

It is also to be noted that s 3 (2) of the Labour and Employment Act 1972 provides that the provisions of that Act shall only apply where such provisions are not repugnant or in conflict with the provisions of any other enactment or written law. The statutes of the university if they do not qualify as an "enactment" would without doubt come within the broad definition of "law" provided under Article III (1) of the Constitution. For all the foregoing reasons, I am of the clear view that the second question raised by the plaintiff does not constitute a serious question to be tried which would justify interim intervention by the Court by way of an injunction.

I have also reached the same conclusion that the third question whether the plaintiff’s continuing suspension is wrongful and a breach of her contract of employment does not give rise to a serious question to be tried which would justify interim intervention by the Court. The vice-chancellor had the power to suspend the plaintiff from her duties. The material placed before the Court contains material which are quite critical of the plaintiff’s performance as an accounting lecturer at the university and the course outlines that were used for teaching the UPY students. Counsel for the university also pointed out in her written submissions that under clause 11.7 of the academic and comparable staff policy manual to which the plaintiff’s contract of employment was subject, the plaintiff was required, inter alia, to continually improve her method of explaining and presenting her subject to the students and to have due regard for the welfare of the students. The report by the review team and other material placed before the Court allege that the plaintiff had failed in doing so. Counsel for the university therefore submitted that the plaintiff had been in breach of clause 11.7 of the academic and comparable staff policy manual and her contract of employment.

All of that, including the report of the review team which was accepted and approved by the management committee of the university, form the basis upon which the vice-chancellor acted to suspend the plaintiff pending the implementation of the disciplinary procedures which would provide the plaintiff with the opportunity to reply to the criticisms and complaints that had been made against her. I have not overlooked the fact that the plaintiff had applied and granted a salary double increment after sixteen months of service under her first contract of employment. She was subsequently given a second contract of employment for a term of three years and a promotion from lecturer grade 2 to grade 1. But all that occurred before the investigation by the review team.

At the hearing which was held before the ASPRC, the plaintiff had the opportunity to reply to the criticisms and complaints made of her in the report by the review team and in the students course evaluation forms. However, her counsel objected to the admissibility of those documents on the basis that they were hearsay. This objection caused confusion to the members of the ASPRC, none of whom is a lawyer. It affected the decision that was made by the ASPRC in that eight of the eleven charges were withdrawn whilst the university was to look further into the matter. The ASPRC was uncertain whether they could take into consideration the documents that counsel for the plaintiff had objected to. A period of just over two months then elapsed as the university sought legal advice from the Attorney-General’s Office on the admissibility in evidence of the said two documents. I have already held that the objection by counsel for the plaintiff is untenable in law and the documents in question should have been admitted in evidence. However, it had resulted in further delay.

In these circumstances, I conclude that the third question raised for the plaintiff does not constitute a serious question to be tried which would justify interim intervention by the Court.

As to the fourth question raised in the plaintiff’s motion, namely, whether the pro-chancellor and the vice-chancellor were negligent, it has been well established for many years now that the tort of negligence consists of (a) a duty of care owed by the defendant to the plaintiff, (b) a breach of that duty by the defendant, and (c) damage suffered by the plaintiff as a result of the breach. The damage of course must not be too remote. The defendant in these proceedings is the university and not the pro-chancellor or the vice-chancellor. If the university is to be liable for any negligence alleged against the pro-chancellor or the vice-chancellor, it would have to be shown that the university should be vicariously liable for such negligence.

The most important duty which an employer owes to an employee which often attracts liability in negligence, is the duty of the employer to provide a safe place of work for his employee. A breach by the employer of that duty may amount to a breach of the contract of employment as well as giving rise to an action for damages in negligence by the employee. This case is not concerned with any alleged breach by the university of a duty to provide a safe place of work for the plaintiff. It is concerned with the suspension of the plaintiff from her duties as a lecturer at the university.

I have not been able to find from my own research any case where the Court has held an employer to be liable in negligence to an employee in circumstances similar to those in this case. The nearest case, because it involved a schoolteacher, is Balfour v Attorney-General [1991]1 NZLR 519. In that case, the plaintiff schoolteacher claimed that his employment prospects as a schoolteacher had been affected by a note in his file kept by the Department of Education to the effect that he was a homosexual. He claimed that the Department was under a duty of care to ensure that the file note was accurate. His claim in negligence was, however, rejected by the Court as he could not show that it was because of the file note kept by the Department that he was not able to find another job as a schoolteacher. Those circumstances are, of course, different from the circumstances of the present case.

The only factual allegation of negligence against the pro-chancellor is that the pro-chancellor has not replied to the plaintiff’s letter requesting her intervention after the vice-chancellor had suspended the plaintiff. I am in no doubt that this allegation does not constitute a serious question to be tried that would justify interim intervention by the Court by way of an injunction. In respect of the vice-chancellor, a number of particulars have been pleaded in the statement of claim in support of the claim in negligence against the vice-chancellor. Whether those particulars are true or not cannot be determined at this stage of proceedings. The tort of negligence has also not ceased to apply to new factual situations. It has proved to be a flexible and developing area of the law. For those reasons, I am not prepared to conclude that the fourth question raised by the plaintiff does not raise a serious question to be tried. I conclude that it does raise a serious question to be tried in relation to the vice-chancellor.

I have also considered the submissions made by both counsel on the question of whether an interim injunction should be granted when its effect would be to order specific performance of a contract of employment. This case involves some element of public law. The reports of the cases cited by counsel for the plaintiff were not made available to the Court, understandably, because they are not available in Samoa. It means that it is not clear whether those cases were in the area of public or private law or had elements of both. It also means that on such an important legal issue as to whether an interim injunction may now be available when its effect would be to order specific performance of a contract of employment, it would be unwise to come to any definitive view on the issue in this case, given the nature of the material to which the Court was referred by counsel for the plaintiff. It would, therefore, not be appropriate to reject the motion for an interim injunction by the plaintiff on the basis that at common law the Courts used to refuse specific performance of a contract of employment. The issue calls for further arguments and full reports of the relevant cases.

I will move on now to the question of whether damages would provide an
adequate remedy in law for the plaintiff. If damages are available to the plaintiff and would provide an adequate remedy for her, if it turns out that her suspension was unlawful, then an interim injunction would not be granted.

The point made by counsel for the plaintiff by saying that damages would not provide a remedy for the plaintiff if she is successful is that, part of the claim by the plaintiff relies on an alleged breach of s 21 (7) of the Labour and Employment Act 1972 for which no damages will be available. I have already expressed a clear view that the provisions of the National University of Samoa Act 1997 and the statute for the discipline of academic and comparable staff govern the plaintiff’s suspension and that s 21 (7) of the Labour and Employment Act 1972 does not apply. I am satisfied on the submissions made by counsel for the university that damages will provide an adequate remedy for the plaintiff if she succeeds in her substantive action and that the university would have the capacity to meet an award for damages made against it.

In case I am wrong in the views that I have taken on the question of whether there is a serious question to be tried and the question of whether damages would provide an adequate remedy if the plaintiff succeeds in her substantive action, I will move on to the second stage of the two tier approach to the question of whether the Court should grant or refuse an interim injunction. This is the balance of convenience stage.

The expression "balance of convenience" is explained in Equity and Trusts in Australia and New Zealand (2000) 2^nd ed by Dal Pont and Chalmers in these words:

"Though expressed as a ‘balance of convenience’, the balance that the Court seeks to make is more fundamental and weightier than mere convenience – it is the ‘balance of the risk of doing an injustice’ that better describes the process. In assessing where this balance lies, the Court must weigh the respective risks that injustice may result from its deciding one way rather than the other at a stage when the evidence is incomplete."

It is that risk of doing an injustice that weighs heavily with the Court in deciding whether to grant or refuse an interim injunction pending the determination of the plaintiff’s substantive action.

In this case, one matter which features prominently is that it involves the interest of innocent third parties in a real and direct way but those third parties are not present or parties to these proceedings. These innocent third parties are the accounting students at the UPY at the university. In the English case of Miller v Jackson [1977] EWCA Civ 6; [1977] 1 QB 966, at 988, Cumming – Bruce LJ said:

"Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the Court. The principle has recently been accurately stated in a textbook:

‘Regard must be had not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved. So it is that where the plaintiff has prima facie a right to a specific relief, a Court of equity will, if occasion should arise, weigh the disadvantage or hardship which he will suffer if relief were refused against any hardship or disadvantage which would be caused to third persons or to the public generally if relief were granted’

see Spry on Equitable Remedies (1971), p.365 and the cases referred to in the footnote."

On the basis of the material which has already been referred to, if that material which is critical of the plaintiff’s performance as an accounting lecturer turns out to be true, then it will not be in the interests of the UPY students taking accounting at the university that the injunction sought should be granted. If, on the other hand, the allegations and criticisms which have been made against the plaintiff turn out to be false or cannot be established, the plaintiff’s name will be cleared and she would have a remedy in damages. However, before that happens, there is a risk involved given the hitherto uncontradicted criticisms of the plaintiff’s performance as a lecturer and the high failure rate in accounting by first year Samoan students at the USP which was reported to the STSC and was the subject of a newspaper article.

Any inconvenience to the plaintiff or possible injury to her reputation at this stage can be compensated for by damages if it turns out that her substantive action is successful, or if a subsequent disciplinary hearing clears her of the allegations which have been against her.

It follows, in my view, that the balance of convenience is in favour of refusing the interim injunction sought. The motion is therefore dismissed.

The defendant university is to file and serve a statement of defence by 25 August 2003 when this matter will be re-mentioned.

Costs reserved.

CHIEF JUSTICE