Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Mualia v National University of Samoa [2023] WSSC 90 (21 December 2023)

IN THE SUPREME COURT OF SAMOA
Mualia v National University of Samoa [2023] WSSC 90 (21 December 2023)

CP 126/19

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

MAUGAOALII UFAGALILO FAAMANU DIANA MUALIA

Plaintiff

A N D:

NATIONAL UNIVERSITY OF SAMOA

Defendant

Counsel: P Fepuleai for Plaintiff
Taulapapa B Heather-Latu for Defendant

Hearing: 11 August, 14 November 2023
Decision: 21 December 2023

RESERVED DECISION OF PERESE CJ

1. The Plaintiff, Maugaoalii Ufagalilo Faamanu Diana MUALIA (“Ms Mualia”), had a three-year employment contract to work at the National University of Samoa (“NUS”), as its Deputy Vice Chancellor-Corporate Services (“DVC-CS”). It was a senior and relatively new role, which reported directly to the Vice-Chancellor (“VC”) of NUS.
2. Following her appointment, a sub-committee of the NUS carried out an investigation, described as a “deep dive” into the overall structure of corporate services and the responsibilities of the various Directors under corporate services. This investigation found the DVC-CS role had been significantly downgraded, with many duties and functions being carried out by other senior managers.
3. NUS decided to make the role of DVC-CS redundant. Ms Mualia was first advised of this news through the media, and later, upon her lawyer’s inquiry, from the NUS directly.
4. This is a contract law case. The issues concern the terms and interpretation of the employment contract (“EC”), and what compensation the NUS is liable to pay Ms Mualia on account of the redundancy of the position that had been held by her.
5. Ms Mualia says she was sent a copy of the Staff Manual which provided that if her position was made redundant, she would be entitled to be paid out the balance of her contract. The NUS on the other hand says that the redundancy term Ms Mualia relies on had been amended in early 2017, that unfortunately the wrong version of the Manual had been sent to her.
6. The well-established principle of contract law is a simple one – when a document containing contractual terms is signed, then, in the absence of fraud and misrepresentation, the party signing it is bound, and its does not matter whether the party has read the document or not.^[1]
7. However, the defendant submits a further ground by which a signed document may be voided – mistake. The NUS says that in almost all material respects the right version of the Staff Manual was sent to Ms Mualia, but, regrettably, it contained a redundancy clause that had been amended well before she had been employed. The NUS therefore seeks to be relieved of an obligation that it did not intend to offer and be bound by.

THE BACKGROUND

8. The parties are in agreement on all the important facts.
9. Ms Mualia applied for the role of DVC-CS; was shortlisted and interviewed for the role. The NUS sent the Ms Mualia an email advising that her application had been successful, and attaching a ‘Letter of Intent’ marked confidential. Ms Mualia signed the Letter of Intent on or about 17 September 2018, and this led to the preparation of the EC, which was to be countersigned by the VC.
10. An employee of NUS who worked as a Personnel Officer in the office of the Director Human Resources, sent an email to Ms Mualia on the following day, 18 September 2018 attaching an electronic copy of the draft EC and the Academic, Teaching and Comparable Staff Policy Manual (2016 amended edition) (“the Staff Manual”).
11. Ms Mualia and the VC signed the EC on 27 September 2018, and their signatures were witnessed.
12. After the successful completion of a 6-month probation period, Ms Mualia’s appointment as DVC-CS was confirmed on about 26 March 2019.
13. However, two weeks after this confirmation, without warning, the defendant placed Ms Mualia on special leave, effective 8 April 2019. The NUS letter advising of the special leave, is dated 8 April 2019, and signed by the Pro Chancellor and Chair of the Council, Mr A’eau Chris Hazelman (“Mr Hazelman”). Mr Hazelman’s letter advised Ms Mualia:
    • At its meeting on 4 April 2019, the Council resolved to carry out an independent investigation into various matters, including the student database(s), course enrolmentsand (sic) graduation processes, and compliance with those processes.
14. Ms Mualia was told she was being placed on special leave to ensure that the investigation is carried out independently, objectively and not compromised in any way. Ms Mualia was further informed the duration of the leave depended on the length of the independent investigation, which would be reviewed and kept as brief as possible.
15. Mr Hazelman was the main witness on behalf of the defendant in this matter. The grounds he set out in his letter to Ms Mualia of the need for an investigation were further explained in the narrative he asserts at paragraphs 25 and 26 of his affidavit dated 6 July 2023:
    • 25. DUE to a tumultuous set of events which centered around the correctness of the lists of graduating students due to be capped at the December 2018 NUS Graduation ceremony, serious conflict arose between the VC and the DVC-Academic & Research ‘DVC-AR’ resulting in a stand-off where the VC demanded that the DVC AR immediately resign and vacate his office, surrender his keys and leave campus. Students were in complete disarray due to allegations made that some students who had not satisfied course requirements were on the list to graduate yet students who had were left off the graduating list as well as the scholarship list. results and led to serious uncertainty and confusion, with other University staff caught up in an atmosphere of distrust and conflict, unfortunately emanating from the very top and was later found to have arisen from the VC’s decisions and actions.(sic)
    • 26. SO serious were the claims and counter claims made by the public about corruption at the University, that I and the Council recommended that an independent investigation be urgently undertaken to identify the cause of the disharmony. The former Ombudsman Maiava Iulai Toma-Blakelock undertook this investigation upon the request of the Council (after its own internal investigations found certain anomalies), and ultimately at the direction of the former Prime Minister on 2 May 2019. As a result the VC was resigned from his position in July 2019.(sic)
16. Ms Mualia’s employment was not affected by the outcome of the NUS’ investigation, but it later came under scrutiny in June 2019, when a sub-committee appointed by the Committee took, as Mr Hazelman put it, a deep dive into the overall structure of corporate services.^[2]
    • 29. THE sub Committee met, and with the guidance of Fa’amausili undertook a ‘deep dive’ into the overall structure of corporate services and the responsibilities of the various Directors under corporate services, and found (in summary) that there had been a significant downgrading of the original DVC-CS position selection criteria and job description by the former VC prior to the advertisement of the position, which left most of the duties and functions already part of the functions of the existing Managers and Directors, particularly in respect of the Directors of Finance, Human Resources, and Governance Policy and Planning divisions, who already reported directly to the VC, and whose positions and responsibilities were recommended to be further upgraded in light of that direct line of reporting and their regular sometimes daily interaction with the VC.
17. Mr Hazelman also referred to the experiences of two very senior and long serving Professorial staff as generally supportive of a streamlining of functions.^[3]
18. The Council accepted the recommendation of the sub-committee to disestablish the role of DVC-CS, at its meeting on 2 August 2019. This led to the Ms Mualia being “removed” from the role of the DVC-CS under s. 11(6)(d) of the National University of Samoa Act 2006. Formal notification was given to the plaintiff on 29 August 2019.
19. Ms Mualia brings this claim to seek payment of $179,338.23 being payment of the remainder of her contract of employment. She also seeks compensatory damages of undue distress, anxiety, humiliation, loss of dignity and injury to feelings in the sum of $200,000, and costs.

ANALYSIS OF THE PLAINTIFF’S CLAIM

20. Ms Mualia raises two causes of action: (1) a breach of contract, and (2) a claim of bad faith. The NUS denies both claims.
21. The breach of contract claim pleads;
    • (a) The terms and conditions of employment were stipulated in the Academic, Teaching and Comparable Staff Policy Manual (cl. 4.1 EA);
    • (b) Both parties were bound by the terms and conditions contained in the Contract of Employment, signed on 27 September 2018, including the current and amended Academic, Teaching and Comparable Staff Policy Manual (clause 11.2 of the EA).
    • (c) The copy of the Manual provided to Ms Mualia contained a clause that when a position is no longer required, before the completion of the contract, the incumbent is entitled to payment of the remainder of the contract (cl.5.1 Manual).
22. Ms Mualia’s second cause of action pleaded a cause of action alleging bad faith on the part of the NUS. This claim is that the role of DVC-CS has not been made redundant at all and that it continues to be carried out by different staff. Counsel for Ms Mualia was not able to explain the legal basis of the cause of action. It maybe that the complaint is based on a breach of an implied term of acting in good faith towards each other in the context of an employment contract. However, that was not advanced.

AN OVERVIEW OF THE EC

23. The plaintiff’s EC provides:
    • (a) that she would be employed in the position of DVC-CS, within the Chancellery, for a term of 3 years commencing on 24 September 2018;
    • (b) the terms and conditions of her employment were as set out in the statutes, policies and procedures of the University, Council and Vice-Chancellor; one of the statutes specifically mentioned is the Academic, Teaching and Comparable Staff Policy Manual;
    • (c) the amount of the plaintiff’s remuneration;
    • (d) leave entitlements;
    • (e) annual appraisal;
    • (f) renewal of contract;
    • (g) termination.
24. The Manual is split into five sections. Part I deals with the authority under which the Manual is issued, definitions and interpretations, application, treatment of major changes to staff policies, and its distribution and availability: Part II sets out the duties and responsibilities of staff: Part III provides for 16 staff policies, one of which is section 10 containing the redundancy clause at issue: Part IV refers to Staff Statutes: Other policies are covered in Part V.
25. The Manual is a comprehensive document, of some 175 pages in length.

THE NUB OF THE DISPUTE

26. In relation to redundancy, Mr Hazelman confirmed the transmission of the 2016 amended edition contained the following version of section at 10.5:
    • When a position is no longer required before the completion of the contract, the incumbent is entitled to payment of the remainder of the contract.
27. However, Mr Hazelman went on to say that this section 10.5 was amended, under the relevant process, and as at 1 January 2017 section 10.5 read:
    • When a position is no longer required before the completion of the contract, the incumbent is entitled to payment up to six months.
28. I have highlighted the changes in bold. Mr Hazelman was not involved in the formation of the employment contract. He says, however, the incorrect version sent to Ms Mualia was an error made at a junior level. It was an error because the operative section, 10.5, had been amended before the plaintiff was employed.
29. The effect of Mr Hazelman’s argument is that the NUS was not able to offer Ms Mualia something it could not offer. I respectfully paraphrase the NUS argument as follows - that while the NUS intended to enter a contract with Ms Mualia the contract contained a redundancy clause that had been updated, and such update needs to be given effect.
30. Mr Fepuleai argued the 2017 amended redundancy provision did not form any part of the EC which the NUS offered and Ms Mualia accepted on 18 September 2018. He submits Ms Mualia is entitled to enforce the EC as had been agreed and this means she is entitled to payment of the remainder of the contract
31. The monetary difference between the parties is the plaintiff seeks to recover the balance of her contract being the sum of $179,338.23, whereas the NUS says that all the plaintiff is due is $28,104.09.

THE APPROACH TO INTERPRETING CONTRACTS

32. In this area of the law, Samoa primarily draws on the principles developed by other common law countries. In the matter of Samoa Commercial Bank v Palm Island Traders,^[4] the Supreme Court cited and applied two English authorities – Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd,^[5] and Investors Compensation Scheme Ltd v West Bromwich Building Society. ^[6]
33. Lord Hoffman discussed and summarised these principles in the Investors Compensation Scheme matter:^[7]
    • My Lords, I will say at once that I prefer the approach of the learned judge. But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds [1971] 1 W.L.R. 1381, 1384-1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows:
    • (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
    • (2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
    • (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
    • (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] UKHL 19; [1997] 2 WLR 945
    • (5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna A.B. 1985 A.C. 191, 201:
      • "...if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense."
    • (emphasis added)
34. Our neighbours also take an objective approach to contractual interpretation; in New Zealand - Firm PI 1 Ltd v Zurich Australian Insurance Ltd;^[8] in Australia – H. Lundbeck A/S v Sandoz Pty Ltd and Ors;^[9] and in Fiji – Singh v Hussein;^[10]
35. The issue under the first of Lord Hoffman’s five principles might be unpacked as follows: (1) what meaning would the EC convey to a reasonable person (2) having all of the background that would reasonably have been available to the parties (3) in the situation they were in at the time of the contract?
36. The starting point must be with the background or factual matrix, which informs the reasonable person’s interpretation of the contract. The court is entitled, subject to the exclusion of subjective intentions, to take into account anything which would have affected the way in which a reasonable person would have understood the language of the document.
37. In my view the factual matrix would reasonably include the following pieces or packages of knowledge:
    1. The position of DVC-CS was created in 2015. It was established to enable a fundamental refocussing of the NUS’ governing structure to enable the VC to have more time for strategic planning and stakeholder engagement.^[11] I draw the inference the role was bespoke and critical to the strategic governance direction of the NUS.
    2. Two persons previously held the position. The first was between February and October 2016 (approx. eight months), and the second between October 2017 to August 2018 (approx. ten months). The report of the sub-committee’s review into the DVC-CS role, produced as Exh E in Ms Hazelman’s affidavit, noted:^[12]
       • Since the establishment of the DVC CS position in 2015, the first two appointees left the position without completing their full 3 year contractual term, hence the issue of sustainability, flexibility and retention.

I draw the inference the criteria for the position was a work in progress, and it was acknowledged that staff retention was an issue.

100. The addressing of these issues may perhaps be reflected in the sub-committee’s findings that there had been a significant downgrading of the original DVC-CS position selection criteria and job description by the former VC prior to the advertisement of the position. According to Exh E of Mr Hazelman’s affidavit, the sub-committee’s review noted changes were made by the office of the Chancellery without informing Council or the Executive Committee. Further, that in the sub-committee’s view, the Council and Executive Committee should have been informed given the DVC-CV position was second only to the VC.^[13] It is not clear whether there is validity to these criticisms. If accurate, it would suggest that during the revision of the scope of the role, the VC was effectively acting on his own, outside of any policy and reporting guidelines.

4. There is no evidence that the parties held any negotiations. This suggests that any moves to revise the role were unilaterally carried out by the defendant.
5. Ms Mualia was the third person appointed to the role on 27 September 2018, and it was her first employment with the NUS.
6. Ms Mualia produced into evidence a copy of the Staff Manual sent to her before the formation of the contract. This document can be identified from its header as the V1.0 version.
7. Mr Hazelman on the other hand produced as part of Exh B, in his affidavit of 6 July 2023, another version - V 1.1 which included the amended policy. He also produced as Exh F, in the same affidavit, another version - V2.0, which again included the amended policy.
8. The question is when were versions V1.1 and V.2.0 created? The evidence is that they were created in 2016 and 2017 respectively:
   9. The second page of Exh C of Mr Hazelman’s affidavit suggests V1.1 had been attached to the Request for Policy Review, which was submitted to the May 2016 meeting of the Chancellery.
   2. Exh C further produced a print-out of an email transmission sent Wednesday 11 January 2017 2.33p.m. addressed to allstaff@nus.edu.ws, which purports to attach a document identified as ATCS – Part III – 10. Termination of Appointment Policy V2.0.pdf. If the email address acts as a bulk email to staff, then it would be reasonable to expect the change in policy was notified to all the defendant’s staff who were relevantly affected by the change.

1. Ms Mualia, however, was not employed as at 11 January 2017. Her evidence is that she did not know of the change to the redundancy provision or of the existence of V1.1 and V2.0 – I was employed in 2018, so anything prior to 2018 I’m not aware so I wouldn’t have a clue or not aware of any changes in the Manual.^[14]

10. Neither the then VC or Personnel Officer were called to give evidence as to how V1.0 was sent to Ms Mulia – for instance how did the allegedly wrong version get sent, when there were updated versions – V1.1 and V2.0. of the Staff Manual.
11. It is also relevant to note in terms of the situation of the contract, the VC’s secretary gave Ms Mualia a hard copy of the signed EC and a hard copy of the V1 version of the Manual, during Ms Mualia’s induction. This is separate from the Personnel Officer’s email.

50. The V1.0 has endorsed on the cover page that it is the 2016 Amended edition. One would have expected V1.1 and V2.0 to have similar endorsements, but relating to the year 2017. Those cover pages were not produced to the court.

13. Although the EC, cl 12.2 provides the parties are taken to understand their binding obligations relate to the terms and conditions of the current and amended Manual, this can only properly mean the version of the Staff Manual presented to the employee before the formation of the contract represents the then current terms and conditions. To suggest, as does the defendant, this clause means that the agreement is only binding if the “current” terms and conditions are included in the Staff Manual is simply unworkable by its subjectivity - it would place an unreasonable burden on potential employees to have to check each term and condition to see if the Manual they have been given contains all the current conditions.

38. These background factors serve to also contextualise the situation the parties were in at the time of the contract.

DISCUSSON

39. The Court must evaluate NUS’ reliance on mistake based on the assertion of a mistake from someone who was not involved in the formation of the contract. Mr Hazelman’s submission requires the court to reconcile how the Personnel Officer, and the Secretary of the VC could have provided a version of the Staff Manual that was not up to date, different to the latest versions – V1.1 and V2.0. How did the mistake occur? To exacerbate the mystery, these two officers of the defendant gave the “mistaken” copy to the plaintiff separately and on separate occasions.
40. Perhaps, if V1.1 and V 2.0 had not yet been drafted, in the sense that these documents had not yet come into existence, it might be argued that the V1.0 version was mistakenly given because it should have been amended before being handed over. But V1.0 had already been amended by V1.1 and V2.0 and these versions were in existence, having been created in 2016 and 2017.
41. Respectfully, I am not prepared to accept the submission that the personnel officer who sent the plaintiff V1.0 acted inadvertently. There is no evidence of that inadvertence. On the contrary, it would be reasonable to expect a personnel officer to be intimately concerned with the contents of the Staff Manual. On that basis, there was a need for an explanation of the how the mistake happened. I further reject an inference of inadvertence because the VC’s secretary, independently of the personnel officer, later provided the very same version – V1.0, to Ms Mualia.
42. In my view, there is a plausible explanation of how the Staff Manual V1.0 was provided – it was intended, there was no mistake. This interpretation arises from the background circumstances of what was reasonably known to the defendant, as later discovered by the sub-committee in its review.
43. The role of the DVC-CS was created to assist the VC by reducing the number of positions reporting to him or her and that in turn this would lead to operational efficiency and effectiveness.^[15] An issue with filling the role would reasonably loom large for the VC because it would have directly affected his ability to perform his role.
44. As earlier discussed, the sub-committee concluded that the VC had, in relation to the DVC-CS role, been acting outside of what the sub-committee considered to be appropriate reporting or accountability lines. However, contrary the sub-committee’s criticism, the VC had the delegated authority to employ staff. It was his job to employ staff. The role of DVC-CS was to assist him, and he therefore would have keen interest in how the new position fit the then structure and could deliver on the strategic direction, which at that time had not been possible to achieve.
45. Further, it must have been reasonably obvious to the VC, having had the experience of two failed appointments of short duration, that there was likely something amiss about the fit of applicants to the role; the previous appointees may have been over qualified or wrongly qualified.
46. The VC made adjustments to the role before it was advertised and filled by the plaintiff. In that regard the applicant needed to have graduate level qualification as opposed to post graduate. There was a recasting of other competencies from essential to preferable or desirable. The changes made could be interpreted as having been made to attract a calibre of applicant who was more likely to be retained; over time the successful applicant would build and develop the role.
47. In this context it is plausible the VC wanted to offer the more attractive Staff Contract conditions concerning redundancy, to attract the highest calibre of candidates. There was no down side. Experience showed that the candidate might well resign anyway within a matter of months. All things being equal, the VC might have expected to continue in the leadership role, and there would not have been a sub-committee review into his hiring practice.
48. Although only 21 months earlier, the VC had reviewed the redundancy provision, he had the power to contract out of the Staff Manual. Part 1 is headed “C. Application” provides:
    • These terms and conditions of service shall apply to members of the academic, research, teaching and comparable staff of the University, insofar as they are appropriate to that member or staff and to the extent specified in his/her letter of appointment and/or contract. For General Staff, section 13. ‘Professional Development Leave’, also applies.
49. The clause suggests the terms and conditions of the Manual do not apply absolutely to all contracts (as contended in this case by the defendant), but apply insofar as they are appropriate to that member or staff – and to the extent specified in his or her letter of appointment and/or contract.
50. Taking the above background factors into account, I am satisfied that the meaning the EC and Manual would convey to a reasonable person is that the parties intended to be bound by the terms expressed in the documents of the contract – the EC itself and the Manual, which were given to the plaintiff and which she later signed on 27 September 2018, in the presence of the VC, and he likewise.

MISTAKE

51. Having reached the views expressed above, it is unnecessary to go further. However, I do so, given the central role of the arguments on mistake in the hearing, and if my earlier conclusions are wrong.
52. The principles of the common law classify mistake into three categories:^[16]
    • (a) Unilateral – where only one party to the transaction was mistaken as to some fundamental term of the agreement;
    • (b) Common – where the parties to a transaction share the same mistaken view of the circumstances;
    • (c) Mutual – where the parties were at cross purposes as to the obligations each thought the other was agreeing to.
53. It can be taken from earlier observations that if there is a mistake in this case, that it could only have been a unilateral mistake – wholly made by the NUS by providing the allegedly wrong version of the Staff Manual.
54. The fundamental principle of the common law of contract - that the court takes an objective approach to determining the existence, content and interpretation of the contract - in the context of a plea of mistake, has been helpfully analysed by learned Professor David McLauchlan as follows:
    • Thus, the promisee must reasonably believe that the promisor’s intention is that alleged by her, and a promisee who knows otherwise, or indeed ought to know otherwise, cannot so reasonably believe. A fortiori if it is established that she shared the promisor’s intention at the time of the alleged contract. Only uncommunicated or unknown intentions are excluded from consideration. Importantly, the fact that the promisee’s state of mind is taken into account does not mean that a subjective theory of formation is being applied. A subjective approach would inquire into what the promisor intended, whereas an objective approach asks what a reasonable person in the position of the promisee would believe the promisor intended. And a reasonable person who knew that the promisor did not intend to be bound to a particular term would not treat the promisor as having agreed to that term.

The following questions arise.

Did Ms Mualia reasonably believe that the NUS’ intention is that alleged by her?

55. As earlier discussed, Ms Mualia says she reasonably believed the NUS intended to enter a contract of employment with her as represented in the documents which had been produced and sent to her by the NUS.
56. At all material times, Ms Mualia was reliant on the information being provided to her by the NUS – it was her first employment with the NUS. Whilst she had signed a Letter of Intent, the ensuing employment contract signed in the presence of the VC, who represented the NUS. The VC also signed in her presence. Just on the gravitas alone of having the VC, who was also the CEO, and also the President of the University sign the contract, it is difficult to see how a reasonable person in the position of Ms Mualia would see anything other than the intention alleged by her - an intention to contract on the terms presented.
57. However, following the execution of the contract Ms Mualia then undertook the probation period and completed it successfully. During her orientation, she was given a signed copy of the agreement and a hard copy of the Staff Manual that she had initially received from the Personnel Officer. In my view, this second provision of the Staff Manual makes it reasonable for Ms Mualia to form the view that the NUS intended to contract as alleged by her.

Did Ms Mualia know or ought she to have known of the alleged mistake?

58. The earlier findings conclude that Ms Mualia did not know and there is no reason to suggest that she should have known she had been sent and handed the allegedly wrong Staff Manual. The fact that Ms Mualia was given two copies of the V1.0 Manual on two separate occasions by two different people affirms the NUS’ difficulty – in the light of the fact that two NUS staff members on separate occasions gave the wrong Staff Manual, how might NUS possibly suggest that a non-staff member could have known she was being handed the wrong Staff Manual?
59. We also do not know whether redundancy policy had been implemented in relation to other or all new staff. There was evidence the new redundancy policy (contained in V.2.0) had been emailed to all staff, but this does not cover new employees being employed. The alleged mistake in this case has not been shown to be an aberration.
60. I am satisfied that if there was a mistake, that it was a unilateral mistake – a mistake only of the defendant.

IS RECTIFICATION AVAILABLE FOR UNILATERAL MISTAKES?

61. Rectification is an equitable remedy intended to relieve parties from mistakes made during the creation of a written agreement, and the doctrine is applied in the context of disputes involving common mistakes.
62. Respectfully, perhaps the clearest statement of the principle is expressed in Lord Denning’s judgment in Frederick E Rose (London) ltd v William H Pim Jnr & Co Ltd [1953] 2 QB 450, 461; in that case a contract was made under a common mistake as to the meaning of the language used to describe the goods which were being purchased. The mistake was induced by an innocent misrepresentation made by the vendor to the purchases. Lord Denning held:
    • "Rectification is concerned with contracts and documents, not with intentions. In order to get rectification, it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly; and in this regard, in order to ascertain the terms of their contract, you do not look into the inner minds of the parties - into their intentions - any more than you do in the formation of any other contract. You look at their outward acts, that is, at what they said or wrote to one another in coming to their agreement, and then compare it with the document which they have signed. If you can predicate with certainty what their contract was, and that it is, by a common mistake, wrongly expressed in the document, then you rectify the document; but nothing less will suffice."
    • (emphasis added)
63. Professor David McLauchlan poses two scenarios which he considers might give rise to an order for rectification of a unilateral mistake.^[17] The first is where there had been an agreement and there was a drafting error in giving effect to that common intention and the non-mistaken party knew of the mistake in the written contract, but nevertheless signed. The second situation is based on where the non-mistaken party has engaged in misleading conduct before or at the time of the signing of the contract – thereby leading the other party reasonably to believe that the term intended was agreed to. In both situations Equity would come to the aid of the mistaken party to the extent that the non-mistaken party would be estopped from objecting to an order for rectification.
64. It is clear from earlier the discussion that neither of these scenarios exist in this case. Accordingly, I conclude that rectification is not available to the defendant in the circumstances where there is a unilateral mistake.

THE DEFENDANT’S ALTERNATIVE ARGUMENTS

The clause 10 argument

65. The defendant, as an alternative argument, relied on clause 10 of the Contract of Employment, which provides:
    • The Employer does not accept responsibility for the unauthorised promises or offers whether oral or in writing made by any of its members of staff to any potential employees, regarding any terms of Employment with the Employer.
66. Ms Heather-Latu’s submission is that if the 2016 version was deliberately sent to the plaintiff setting out the relevant terms and conditions of the plaintiff’s employment, then this would be caught by clause 10.
67. Respectfully, the defendant’s argument is met by the specific powers which are granted to the Vice Chancellor in the Manual at Part 1 section headed A. Authority and C. Application. Section A. gives the Vice Chancellor the power to employ staff, among others, and Section C. enables to the Vice Chancellor to set terms and conditions of service insofar as they are appropriate to that member of staff and to the extent specified in his/her letter of appointment and/or contract.

The Labour and Employment Relations Act 2013 (“the LER”)

68. The defendant raised the LER as a separate basis for the termination of the plaintiff’s contract. It argued the Part 8 of the LER applies EC.
69. The LER provides for two types of termination of employment contract; (1) s. 53 contracts of service for a specified period or task, and (2) s.54 contracts for an unspecified period. The contract in this case is for a fixed term of 3 years with a fixed salary for the period of the contract.^[18] The contract appears to subject to s.53.
70. However, the crux of the defendant’s argument is that the court is able to treat the fixed term contract under s. 53, as a continuous contract under s. 54, which is capable of being terminated on notice. The defendant relies on the Court of Appeal’s decision in Tafua v Samoa Rugby Union [2020] WSCA 2 - that fixed term contracts may exist if it had said, for example, that there was to be a term commencing on 15 September 2017 and terminating on 30 November 2019 and there was no provision for any giving of a termination notice allowing termination without cause.^[19] It is not clear whether the Court of Appeal intended to suggest that a fixed term contract where only the employee has a right to terminate without cause, means there would in that circumstance be a continuous contract, capable of being terminated by the employer without notice under s. 54.
71. In Tafua the fixed term contract provided that either party had the power to terminate employment by giving one month notice in writing.^[20] For convenience, I set out the relevant provision in the Tafua contract as follows:
    • Subject to the successful completion of the probationary period, either party may terminate employment by giving one month notice in writing, or in the case of termination by Samoa Rugby Union Inc., payment in lieu, except in the case of dismissal for serious misconduct that justifies instant dismissal.”
    • (emphasis added)
72. By comparison, the termination clauses in this case – section 9 of the EC and Part III section 10 of the Manual, do not give the employer the right to terminate employment merely by giving the employee notice of one month in writing. The employee may by section 9.3.ii terminate by giving one month’s notice. In my view, the critical factor which meant the contract in Tafua was properly regarded as continuous, rather than fixed term, was the provision which gave both the employee and the employer the ability to cancel by giving one month’s notice. That context does not arise in this case.
73. The NUS is bound to honour the contract for the full period. It does not as the employer did in Tafua have hybrid rights, and it would be a significant rewriting of the employment contract to suggest that the employer could terminate the contract under s. 54 of the LER, because the employee has a right to terminate without cause. The only grounds upon which the defendant may terminate the contract before the expiry of the three years, is if one of the causes set out in clause 9.4 is triggered, or the misconduct provisions in s. 53(2) apply.
74. In other words, in the present case the EC does not contain a termination clause which overrides or makes internally inconsistent the intention to enter a fixed term contract, which would therefore mean the contract would be more in the nature of a continuous contract.
75. It is noteworthy that EC contains a specific clause dealing with the renewal of a contract (clause 8); those who apply but are not given a further contract are paid what is known as a moral payment without legal obligation - an ex-gratia amount, equivalent to four weeks salary. The detailed provisions concerning renewal and the existence of moral payments are consistent with treating the contract as fixed term, rather than a hybrid.
76. Respectfully, the respondent’s reliance on Tafua is misplaced; the reasoning in Tafua does not apply in this case and the authority can be distinguished.
77. There is one further matter that needs to be considered. The LER is expressed to apply only where it does not conflict with ...any other Act currently in force: s. 3(2). The defendant has powers under s.25 National University of Samoa Act 2006 with respect to setting the terms and conditions of employment of members of staff of the University: s.25(2)(f). This would suggest the LER does not apply to this employment relationship. However, I note this aspect concerning the cover of the LER was not argued, and it should be, given potential impact on other employment relationships.

BAD FAITH

78. Given the conclusions already made, it is unnecessary for the Court to turn to this cause of action.

DETERMINATION

79. The Court finds in favour of the plaintiff on her claim for breach of contract, and she is entitled to a payment of $179,338.23 being payment of the remainder of her contract of employment, as particularised in para 25 of the Amended Statement of Claim.
80. The plaintiff seeks compensatory damages for undue stress, anxiety, humiliation, loss of dignity and injury to feelings. I consider the defendant acted poorly in its handling of the redundancy, but I do not think it appropriate to hold the defendant accountable for misguided actions at the time. Mr Hazelman’s expression of regret about the disestablishment of the DVC-CS position must go a significant way to ameliorating the distress that Ms Mualia felt at the time.
81. Ms Mualia’s position has been vindicated by the terms of this judgment. Compensatory damages in these circumstances would amount to the court making an award for punitive damages, and there are no grounds for making such an award.
82. Costs – the parties are directed to try to resolve costs, and if not then they are to provide submissions by 23 February 2024.

PERESE CJ

^[1] L’Estrange v F Graucob Ltd [1934] 2 KB 394, 403, per Scrutton LJ
^[2] Affidavit of Mr. A’eau Chris Hazelman para 29.
^[3] ibid., para 30
^[4] Samoa Commercial Bank v Palm Island Traders [2009] WSSC 4, at para 45, and 63
^[5] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
^[6] Investors Compensation Scheme Limited v West Bromwich Building Society and Ors [1998] 1 ALL ER 94
^[7] Above at pp 114-115
^[8] Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, para 60
^[9] H. Lundbeck A/S v Sandoz Pty Ltd and Ors [2022] HCA 4 at para 95
^[10] Singh v Hussein [2023] FJHC 747, para 7
^[11] Exh E, Mr Hazelman’s affidavit – Version 7A p 1
^[12] ibid., Version 7A p 2
^[13] Exh E, Mr Hazelman’s affidavit - Version 7A p 5
^[14] Mualia v NUS (NOE) 11 August 2023, p.15.
^[15] Exh E, Mr Hazelman’s affidavit - Version 7A p 5
^[16] Burrows, Finn, Todd Law of Contract in New Zealand (5th ed, Lexis Nexis, Wellington, 2016) at 310, 311
^[17] Professor David McLauchland “The ‘Drastic’ Remedy of Rectification for Unilateral Mistake” 2 VUWLRP 4/2012, 608 at 619-620
^[18] Letter of Intent dated 14 September 2018, clauses 1 and 2.
^[19] Tafua v Samoa Rugby Union Inc [2020] WSCA 2 at para 16.
^[20] ibid., para 6.