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Common Law Fair Process Requirements in Relation to Termination of Employment: Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter Day Saints (Samoa) (Case Note) [2003] JSPL 17; (2003) 7(2) Journal of South Pacific Law

COMMON LAW FAIR PROCESS REQUIREMENTS IN RELATION TO TERMINATION OF EMPLOYMENT

Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter Day Saints (Samoa)

[2002] WSSC 27

By Anita Jowitt∗

The United Kingdom, Australia and New Zealand have developed legislation that supercedes the somewhat harsh common law position that there is no requirement for procedural fairness on the part of the employer in cases of summary dismissal for misconduct. In the Pacific legislatures are not so active. There remain a number of jurisdictions in which there are no legislative measures to alleviate the common law position in respect of the need for procedural fairness. Indeed this point has been explicitly commented on in relation to Fiji, in the case of Diners Club (NZ) Ltd v Pre Narayan[1]. The Diners Club v Narayan case states that in Fiji, in the absence of statutory provisions requiring fair process, the common law position applies, and there is no requirement for employers to exercise fair process during dismissal.

In contrast, Samoa’s courts have been active in trying to develop the common law so as to make up for perceived legislative deficiencies. However, the latest case on this issue, Pouono v The Corporation of the Presiding Bishop to the Church of Jesus Christ of the Latter Day Saints[2] suggests that prior developments are incorrect, and that a common law principle of fair process in relation to dismissal is not developing.

I BACKGROUND OF THE CASE

The plaintiff commenced employment as a payroll clerk in November 1996. In January 2000 the plaintiff, together with another employee, was dismissed for the unauthorised use of the petty cash. She was paid two weeks salary in lieu of notice.

Issues

The plaintiff argued that she was unfairly or wrongfully dismissed on the following grounds:

1. That she did not misuse money from the petty cash, so there was no just cause to dismiss her.
2. That, in the event that the court held that there was no just cause for dismissal, then the defendant had no right to terminate the plaintiff by way of notice, or payment in lieu of notice.

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