IN THE SUPREME COURT OF SAMOA
Leaupepe v METI [2025] WSSC 50 (20 June 2025)

Case name: 	Leaupepe v METI	
		
Citation: 	[2025] WSSC 50 	
		
Decision date: 	20 June 2025	
		
Parties: 	ALOEMA LEAUPEPE of Mulifanua (Plaintiff) v MATUAILEOO ENVIRONMENT TRUST INCORPORATED, an incorporated entity having its registered offices at Motootua (Defendant).	
		
Hearing date(s): 	27 February 2025
Submissions: 3 April 2025	
		
File number(s): 	2023-01208 SC/CV/UP	
		
Jurisdiction: 	Supreme Court – CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Senior Justice Nelson	
		
On appeal from:		
		
Order:	There were ample grounds justifying the plaintiffs instant dismissal for serious misconduct pursuant to section 57(2) of the Labour and Employment Relations Act 2013 as well as at common-law.

The plaintiffs claim is dismissed, judgment will be entered for the defendant.

The defendant as the successful party is entitled to reasonable costs to be fixed by the court if not agreed upon by the parties.	
		
Representation: 	A. Su’a for plaintiff
Q. Sauaga for the respondent	
		
Catchwords: 	Wrongful dismissal 	
		
Words and phrases:		
		
Legislation cited:	Labour and Employment Relations Act 2013, ss. 54; 54(2); 56; 57; 57(2).	
		
Cases cited:	Faamau v Samoa Breweries [2009] WSSC 85;
Liki v Samoa Breweries Ltd [2005] WSSC 3;
Shirlaw v Southern Foundaries Ltd [1939] 2 All ER 113;
Toremana v Samoa Water Authority [2019] WSSC 16.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ALOEMA LEAUPEPE of Mulifanua.

Plaintiff

A N D:

MATUAILEOO ENVIRONMENT TRUST INCORPORATED, an incorporated entity having its registered offices at Motootua.

Defendant

Counsel:	A. Su’a for plaintiff
		Q. Sauaga for the respondent

Hearing:	27 February 2025

Submissions:	03 April 25

Decision:	20 June 2025

DECISION OF THE COURT
Background
1. 	It is not in dispute that the defendant (‘METI’) is a charitable trust duly incorporated under the Charitable Trusts Act 1965 and at all material times was carrying on business from its premises at Lalovaea in Apia. Its objects include but are not limited to the following:
(a) 	To undertake, promote and carry out charitable and/or environmental works to support sustainable development;
(b) 	To undertake and promote a holistic approach to environmental management with integrated projects, including Health and education that collectively achieve the objects of the Trust;
(c) 	To provide training of the necessary management skills and promote capacity building to achieve sustainable living in Samoa through self-reliance, particularly of grassroots communities;
(d) 	To involve all stakeholders in Trust activities through the operation of relevant committees to support and/or facilitate its programs; and
(e) 	To do all such matters and things as in the opinion of the Trustees may be incidental to or conclusive to the furtherance of all or any foregoing objects.
2. 	The Trust is managed by a Board of Directors and its Executive Director at all material times in this matter was Dr Walter Vermuellen. 
3. 	The plaintiff was employed in 2009 by the defendant as a Trainer earning a gross salary of $16,000 per annum. In 2014 she was promoted to Senior Trainer ($26,000 per annum) and in 2020, to Program Co-ordinator at $40,000 per annum. There was however never at any stage a written contract or written terms and conditions of employment.
4. 	The plaintiff argues her employment was therefore governed by the ‘Matuaileoo Environmental Trust Inc - HR Policies and Procedures’. Or alternatively by the ‘Working Conditions and Entitlements Manual 2015’ of the Office of the Public Service Commission. As correctly conceded by her counsel during hearing of Closing Submissions, this is disputed by the defendant who through Dr. Vermuellen says in an affidavit produced at trial as Exhibit “R-1” for the Respondent:
	“I note from the Plaintiffs affidavit that she attached the proposed METI Guideline Exhibit F and the PSC 2015 Working Manual Exhibit G.
	In response, the Guideline was initiated when METI was engaged in a USAID project namely PACAM. The PACAM project funded by USAID was prematurely ended after the mid-term review because the project office identified weaknesses in the reporting system. The officer uncovered the irregularities in the recording documents, which led to the Project being terminated. As a consequence of the termination of the PACAM project, the guideline was never finalised or approved by METI’s Board of Directors. METI since it was established adopts the Labour and Employment Relations Act 2013 as its guiding policy/law.
	As for the PSC 2015 Working Manual, METI is a non-Government Ministry to which PSC 2015 Working Manual does not apply. METI is an NGO registered at the Ministry of Commerce, Industry and Labour (MCIL) and it is governed by the Labour and Employment Relations Act 2013.”
5. 	On this issue the court accepts the evidence of the defendant, the plaintiffs employment was governed by the Labour and Employment Relations Act 2013 (“the Labour Act”). This also seems to be accepted to a large extent by plaintiffs counsel based on the content of his Closing Submissions. 
Plaintiffs claim
6. 	Subsequent to a motor vehicle accident at Aleisa in the evening of 20 July 2021 involving the defendants Mazda vehicle driven by the plaintiff, the plaintiff was summarily dismissed by letter dated 18 October 2021 (“the dismissal letter”). As the reasons for dismissal are crucial to this matter, the letter is reproduced below in its entirety: 
“18 October 2021
	Ms Aloema Leaupepe
	MULIFANUA
	
	Aloema,
	The Board had reviewed with me the latest information in regards the various incidents mentioned in my earlier letter of 27 September 2021.
	The Board holds you responsible for the Mazda crash on 21 July 2021. The latest information received from the MOH is that you were seen at 1:45 am the next morning and not in the earlier evening as you maintain. Further, the mechanic did not arrive on the scene until after midnight. This further supports the evidence that the Mazda was spotted before the incident around 11:30 pm at Tamaligi with you in the passenger seat and the car being driven by a white haired male. 
	The Board has taken a dim view of your refusal to obey the Executive Director’s order (based on a Board’s decision) not to use a METI vehicle after working hours, the Board considers this plain insubordination.
	The Board has taken note that you made the false claim that you were the owner of the Toyota vehicle, which you had placed as guarantee for your pay advances, whereas in fact the vehicle was registered under the name of your jailed and estranged husband Iakopo Faatauvaa.
	When you brought the transfer notice presumably signed by Iakopo, we took steps to have this verified and have him interviewed. With the Deputy Commissioner of Police in charge of the Prison as witness, it was found out that you misled Iakopo to get his signature by claiming that ‘Walter wanted you to sign the transfer to METI since METI is short on vehicles’, failing to tell him that the true reason for the transfer of ownership was to cover your pay advances.
	Iakopo was so upsent, when being told the true reason for the transfer that the he crossed out his signature on the transfer notice that you made him sign under false pretences. He has now written and signed the transfer notice to me, not METI (see copies attached). 
	As a result of you not being able to sell the vehicle as you had promised by the due date of 21 September 2021, you offered for METI to buy the vehicle at a discounted price of $9,000, which we did in good faith. We then deducted all the pay advances you received over time and gave you in cash the remaining amount of $5,140. Now that Iakopo has been unwilling to transfer the vehicle to METI, you owe METI the amount of $9,000.
	As a result of your actions and based on the Board’s instruction, I hereby terminate your employment with METI as from this date. 
	I expect you to return all METI property including the Noah vehicle immediately.
	Sincerely,
	
	Walter Vermeulen
	Executive Director.”
7. 	The plaintiff originally brought an action based on wrongful dismissal and promissory estoppel but has abandoned the latter cause of action. In respect of wrongful dismissal, the plaintiff argues: 
(i) 	that her termination was invalid as she had by 18 October 2021 tendered her resignation and she is therefore entitled to all accrued benefits; and
(ii) 	in any event, there was no fair or proper reason/unsatisfactory conduct/ work performance or serious misconduct on her part warranting dismissal. 
Relevant law
8. 	Section 54 of the Labour Act provides for ways in which a contract of employment may be terminated. Section 54(2) relevantly states:
	“54. Termination of a contract of service for an unspecified period –
	(2) A contract of service for an unspecified period may be terminated by an employer: 
	(a) without notice if section 56 applies; 
	(b) in accordance with section 57.”
9. 	Section 56 deals with trainees, casual employees and other matters and has no application to the present case. Section 57 provides:
	“57. Dismissal due to employee’s conduct or work performance - (1) Subject to this section, an employer may terminate an employee’s employment by reason of unsatisfactory conduct or work performance in circumstances where: 
	(a) the employee’s conduct or work performance does not amount to serious misconduct under subsection (2); 
	(b) the employer has warned the employee about their unsatisfactory conduct or work performance in writing at least three (3) times; 
	(c) the employer has provided the employee with an opportunity to improve their conduct or work performance; 
	(d) the employer has given the employee a reasonable opportunity to respond to the allegations made against them prior to termination; 
	(e) the employer has provided the employee with the reasons in writing for the termination; and 
	(f) the employer has given the employee notice of termination in accordance with Schedule 2. 
	(2) An employer may terminate an employee’s employment without notice by reason of serious misconduct, provided the employee is first given a reasonable opportunity to respond to allegations of serious misconduct put to them in writing. 
	(3) In this section “conduct” means the behaviour of an employee in the workplace that is reasonably expected by an employer.”
10. 	It is clear from the dismissal letter that the plaintiff was dismissed without notice and for the reasons contained therein. Whilst the letter does not specifically refer to “serious misconduct”, it would appear the defendant Board regarded the matters referred to therein as amounting to either “serious misconduct” under section 57(2) or serious enough to warrant instant dismissal. 
11. 	“Serious misconduct” is defined by section 2 of the Labour Act as -
	‘“serious misconduct” means behaviour which is a serious breach of an employee’s terms and conditions of employment and includes: (a) harassment or sexual harassment of another person in a workplace; (b) a conviction of a crime where a sentence of imprisonment term is imposed by the Court; (c) dishonest conduct including theft or otherwise making a false statement whether orally or in writing; (d) attendance at the workplace under the influence of alcohol or illegal drugs; (e) any other behaviour which brings disrepute to the employer or the employer’s business.’
12. 	In Samoan labour and employment law, it is important to distinguish between a common-law action for wrongful dismissal and an action for unlawful dismissal based on a breach of the Labour and Employment Relations Act 2013.  As noted by Chief Justice Sapolu in Liki v Samoa Breweries Ltd [2005] WSSC 3:
	"Summary dismissal is a common law remedy in the hands of the employer by which he can instantly dismiss an employee without warning. If the summary dismissal was with just cause then it was justified. If it was without just cause then it was unjustified. A summary dismissal without just cause is a form of wrongful dismissal. It can, therefore, be the basis of a cause of action in a common law action for wrongful dismissal. It is not unfair dismissal.
	As stated, for example, in The Law of Employment (1997) by Macken, O’Grady and Sappideen 4th edition at p. 294:
	"‘Dismissal will be wrongful and in breach of contract where the employee is not given notice of sufficient length to lawfully terminate the contract or has been summarily dismissed for misconduct in circumstances which do not warrant summary dismissal or is constructively dismissed by the employer. Wrongful dismissal will also occur where the employer fails to follow contractual procedures required prior to dismissal’”
13. 	Further on in Liki v Samoa Breweries Ltd the learned Chief Justice explains:
	"As to the requirements for summary dismissal, counsel for the plaintiff cited two English cases often referred to in this area of employment law. In the first of these cases, namely, Clouston & Co v Cory [1905] UKLawRpAC 66; [1906] AC 122, which was a decision of the Privy Council, Lord James of Hereford stated at p. 129:
	"‘Now the sufficiency of the justification depended upon the extent of the misconduct.
	‘There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal’
	"Later in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 A11 ER 285, Lord Evershed MR stated at pp 287 and 289:
	"‘[Since] a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service"
14. 	The court also said:
	"The case law also shows that while a single act of minor misconduct may not on its own provide sufficient cause to justify summary dismissal, a series of such acts may provide sufficient cause. On the other hand, a single act of misconduct which is sufficiently serious may justify summary dismissal. It is a question of fact in each case, depending on the nature of the misconduct and the circumstances surrounding its occurrence"
15. 	Subsequently in Faamau v Samoa Breweries [2009] WSSC 85, the Chief Justice added:
	“It is, however, to be noted that misconduct is not the only ground for summary dismissal of an employee. Misconduct is the usual ground for summary dismissal but it is not the only one. As pointed out in The Law of Employment (1997) 4th ed by Macken, O’Grady and Sappideen at p. 194:
	"Misconduct is the usual (but not exclusive) ground for summary dismissal. Misconduct connotes positive and intentional wrongdoing whereas other grounds for dismissal, such as incompetence and neglect, do not involve intentional misconduct. Wilful refusal to comply with lawful orders has been regarded as establishing an independent ground for dismissal on the basis that misconduct concerns positive actions rather than a refusal to carry out duties. No importance attaches to any distinctions between various types of misconduct as in each instance summary dismissal will only be justified if it is a sufficiently serious breach of contract or such as to indicate that the employee no longer intends to be bound by the contract".
	Furthermore, in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 A11 ER 285 at p. 289, Lord Evershed MR said in relation to summary dismissal:
	"[I think] that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions and…therefore...the disobedience must at least have the quality that it is ‘wilful; it does (in other words) connote a deliberate flouting of the essential contractual conditions".
16. 	A useful discussion of the difference between common-law actions and those based on statute can be found in Toremana v Samoa Water Authority [2019] WSSC 16 where Clarke, J noted: 
	“In Brighouse v National Bank of Samoa Ltd [2004] WSSC 1 (27 January 2004), the distinction between common law and statutory grounds of dismissal were further examined by Sapolu CJ:
	“The general common law position in New Zealand may be found as stated in the judgment of McGechan J in Stuart v Armourguard Security Ltd [1996] 1 NZLR 484 where His Honour says at p491:
	“I approach the matter as follows: The traditional common law approach in relation to employment terminable by notice recognised the employer could terminate at any time and for any reason or for none (Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 65). However, if he did so in a manner not warranted by the contract – eg, if he did not give notice required by the contract, or dismissed summarily without proper grounds – it was wrongful dismissal. The employer would be liable for damages. He was not, traditionally, obligated to hear the employee in his own defence. Subject, to any express contractual terms, fairness and natural justice did not arise.”
	“This approach at common law became too restrictive for modern industrial conditions and social thinking. A statutory dismissal and wider remedy the (so-called personal grievance procedure) developed in New Zealand for ‘unjustified dismissal’. The history is traced conveniently by Casey J in Ogilvy & Mather (NZ) Ltd v Turner p649. The term ‘unjustified’ is important. It contrasts with the traditional ‘wrongful. It is has never been specifically defined, but is regarded as looking at justifiability and fairness of the dismissal, rather than common law legalities (Auckland City Council v Hennessey [1982] ACJ 699 (CA). It requires consideration whether the dismissal was just and fair, even if given on notice or occurring for cause sufficient at common law. Procedural fairness, as to manner of decision, was and is an important aspect.
	…In terms of serious misconduct and wrongful dismissal, the New Zealand Court of Appeal in Board of Trustees of Marlborough Girls College v Sutherland [1999] NZCA 315; [1999] 2 ERNZ 611 addressed ‘serious misconduct’ in the following terms:
	The right to dismiss summarily for serious misconduct given by cl 3.4.3(e) is an expression of the general law applicable to a contract of employment. It is the fact of serious misconduct which is a pre-requisite to summary dismissal — was there a breach of trust so serious and of such a nature as to warrant a fair and reasonable employer deciding that the employee should be dismissed? That is an objective factual enquiry which, if in issue between the parties, falls to be decided in the ordinary way. If the conduct in question can be so classified, then dismissal is available. If it cannot, then the basis for the exercise of the power does not exist and a dismissal would be wrongful.”
17. 	In relation to onus of proof, Clarke, J held and I agree with him:
	“In Mihaka v Maori Women’s Welfare League (Unreported) BC200071041 (9 February 2000), Shaw J dealt with a wrongful dismissal claim explained the onus of proof in a wrongful dismissal claim as follows:
	“In this case the onus is on the plaintiff to prove on the balance of probabilities what the material terms of the contract were and if one or more were breached by the defendant. Where a dismissal is said to be by reason of serious misconduct it is for the employer to prove that serious misconduct.”
	[51] Similarly, in Liki v Samoa Breweries Ltd (op. cit) where the Court per Sapolu CJ in dealing with onus of proof stated:
	“As to onus of proof in a summary dismissal case, it is for the plaintiff employee to establish that he was employed for an indefinite time and that he was dismissed without notice. The onus will then shift to the defendant employer to prove that the dismissal was with just cause and therefore justified.”
Discussion
18. 	The dismissal letter essentially refers to three reasons for the plaintiffs termination: 
(i) 	Unauthorised driving of the Mazda vehicle assigned for her use by an unidentified male in the evening of 20 July 2021 culminating in an accident at the Fiaga, Aleisa bridge later that night that caused substantial damage to the vehicle; 
(ii) 	Failure to obey the defendants instruction concerning after hours use of the defendants black METI vehicle; and
(iii) 	The issue of payment of the plaintiffs salary advances and the aborted sale of a Toyota Primo vehicle purportedly owned by the plaintiff as addressed in the last few paragraphs of the letter.
19. 	In relation to (i), the defendants position after investigation of the matter was relayed to the plaintiff in its letter dated 27 September 2021 attached as “A-2” to the plaintiffs affidavit dated 02 October 2023 produced at trial as Exhibit “P-1” for the plaintiff. Her version of events is contained in the letters adjacent to “A-2” consistent with her sworn evidence.
20. 	The defendant obviously rejected her explanations as outlined in their 27 September 2021 correspondence in particular because of the plaintiffs failure to report the alleged ‘hit and run’ accident to the Police and due to the conclusions reached by the defendants mechanic and the plaintiffs own mechanic following inspection of the vehicle.
21. 	As regards (ii), the plaintiffs evidence was she regularly used her office vehicle after-hours and was never told by the Executive Director or anyone else she had no authority to do so. She says the defendant paid for the petrol and the Executive Director was well aware of what she was doing.
22. 	The defendants position on this is not totally clear but from the correspondences and evidence adduced, it seems to me likely this instruction was only given post-the 20 July 2021 accident and when the plaintiff took possession of the black METI vehicle on 21 July 2021. This the plaintiff refused to comply with as is clear from her 29 September 2021 explanation letter where she says at the bottom of the first page 
	“I also didn’t refuse Walter to hand over the key of the black car to you but I beg and asked if I can use it at that time when I spent after hours to work on the SEN and EU project reports…” 
23. 	In the words of the Executive Directors letter of 27 September 2021 to the plaintiff, the defendant considered such behaviour to be “straight and simple, insubordination” and “blackmail since the plaintiffs resignation would have seriously affected the defendants efforts to complete in time important project reports.” Sentiments which are repeated in the dismissal letter when it states: 
	“The Board has taken a dim view of your refusal to obey the Executive Directors order (based on a Boards decision) not to use a METI vehicle after working hours: the Board considers this plain insubordination.”
24. 	In relation to (iii), the chain of correspondence is plain enough. The Board were of the view the plaintiff fraudulently misrepresented the situation regarding the vehicle registered to her imprisoned husband ultimately leading to a loss of $9,000 to the defendant. The particulars of this were challenged by the plaintiff in her affidavit and evidence but what she did not address was the core allegation that her husband now refused to transfer the vehicle to settle her salary advances thus resulting in a $9,000 loss to the defendant, over $5,000 of which was given in good faith in cash to the plaintiff.
Conclusions
25. 	From the point of view of whether in all the circumstances the plaintiff was guilty of “serious misconduct” within the terms of section 57(2) of the Labour Act, the court finds as follows:
(i) 	The defendant was justified in rejecting the plaintiffs explanation concerning the 20 July 2021 accident given the inconsistencies in her version of events and the opinion of the two mechanics, one of whom was her own; plus the plaintiffs failure to report an ostensible ‘hit and run’ accident to the Police. Furthermore, that the defendant was quite entitled to accept the evidence of unauthorised driving of the vehicle in the Apia area by an unidentified party earlier that evening. Although denied by the plaintiff, she did not adduce any evidence in support thereof.
(ii) 	Negligence and after hours misuse of an employers property are serious breaches of the ordinary terms and conditions of employment that can unless specifically varied be reasonably implied into any contract of employment. In my respectful view, it clearly satisfies the ‘officious bystander’ test of Shirlaw v Southern Foundaries Ltd [1939] 2 All ER 113, 124 as propounded by Mackinnon, LJ: 
	“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious bystander were to suggest some express provisions for it in their agreement, they would testily suppress him with a common, “Oh, of course””. 
	(a test applied in this jurisdiction by cases such as Chapman v Ake [2004] WSDC 2 and RSI Holdings Ltd v Attorney General [2012] WSSC 130).
(iii) 	It can also amount to ‘serious misconduct’ which by statutory definition includes “dishonest conduct” and the making of “a false statement orally or in writing.”
(iv) 	On this basis alone, the plaintiffs employment could have been terminated pursuant to section 57(2), the defendant employer having discharged its obligation to give the employee a reasonable opportunity to respond to the written allegations of ‘serious misconduct’ in its letter to the plaintiff dated 27 September 2021.
(v) 	The plaintiffs non-compliance with the defendants instructions concerning after hours use of her office vehicle is also sufficiently established on a balance of probabilities especially given her own words in her letter dated 29 September 2021 (see paragraph 22 above). Compliance with an employers instructions is fundamental to any employer-employee relationship and failure to do so would clearly constitute a breach of a fundamental term of employment.  Again this too can amount to ‘serious misconduct’ warranting instant dismissal and the court is satisfied the issue was properly raised in writing with the plaintiff via Dr Vermuellens letter dated 27 September 2021.
(vi) 	What was not raised in the above referred letter of 27 September 2021 was the third termination ground of payment of the plaintiff’s salary advances using the Toyota Primo vehicle purportedly hers but in fact registered to her husband. Whilst this is capable of being ‘serious misconduct’, it is a mandatory requirement of section 57(2) that the plaintiff be “first given a reasonable opportunity to respond to allegations of serious misconduct put in writing”. The defendants failure to do this means it cannot rely on this as a lawful basis for termination without notice pursuant to section 57(2). 
(vii) 	Notwithstanding the above, it is the courts view that the plaintiffs behaviour in the circumstances outlined above also amount to “just cause” for summary dismissal at common-law. As noted in Liki supra:
	"Summary dismissal is a common law remedy in the hands of the employer by which he can instantly dismiss an employee without warning. If the summary dismissal was with just cause then it was justified. If it was without just cause then it was unjustified. A summary dismissal without just cause is a form of wrongful dismissal. It can, therefore, be the basis of a cause of action in a common law action for wrongful dismissal. It is not unfair dismissal.
	‘There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal’”
(viii) 	It seems from the defendants dismissal letter that it was not any one reason that justified the plaintiffs instant dismissal, rather that it was the cumulative effect of the plaintiffs “actions”.  As reminded by the court in Liki: 
	"The case law also shows that while a single act of minor misconduct may not on its own provide sufficient cause to justify summary dismissal, a series of such acts may provide sufficient cause. On the other hand, a single act of misconduct which is sufficiently serious may justify summary dismissal. It is a question of fact in each case, depending on the nature of the misconduct and the circumstances surrounding its occurrence"
(ix) 	As to the plaintiffs argument that her termination was invalid because she resigned before the letter of dismissal was issued, there is a clear conflict in the evidence between what she says and what the defendant says. Her evidence is that she tendered her resignation in writing to the defendant by letter dated 05 October 2021 (annexure ‘B’ of “P-1” for the plaintiff). But after a discussion with Dr Vermuellen she decided to follow his advice and tender a second letter dated 05 October 2021 outlining her financial claims (annexure ‘C’ of “P-1”). The evidence of Dr Vermuellen is that he never received the 05 October 2021 letter of resignation, only the one detailing the plaintiffs claims. Further that no discussion as suggested took place. 
(x) 	The defendants position is they invited the plaintiff to resign gracefully in their correspondence of 27 September 2021 but the plaintiff refused and opted to pursue her demands hence her letter dated 05 October 2021. This is consistent with what Dr Vermuellen told the Police in his statement concerning the theft of the defendants car post-dismissal (annexure ‘H’ of “P-1”) that the plaintiff agreed to resign but “with conditions.”
(xi) 	It is significant in my view that the letter of demand which the plaintiff says was the second letter of 05 October 2021 begins with the sentence:
	“With all due respect I am writing to let you know that before I resign from METI I would like to bring to your attention some of the things that METI owes me.”
And concludes with the sentence: 
	“Plus I will hand over my work to someone and my resignation letter before leaving METI.”
This suggests that at that stage, there was no letter of resignation as it opens with the phrase “before I resign from METI” and ends with a commitment to hand over her work “and my resignation letter.” On this issue, I therefore prefer the evidence of Dr Vermuellen that at the 05 October 2021 meeting, the plaintiff presented not a resignation but a letter of demand. Meaning that as at the date of the dismissal letter, the plaintiff had not as a matter of fact tendered her resignation. It is likely also that if she had, the letter of dismissal would have made reference to this fact. 
Decision
1.	There were ample grounds justifying the plaintiffs instant dismissal for serious misconduct pursuant to section 57(2) of the Labour and Employment Relations Act 2013 as well as at common-law.
2.	The plaintiffs claim is dismissed, judgment will be entered for the defendant.
3.	The defendant as the successful party is entitled to reasonable costs to be fixed by the court if not agreed upon by the parties.
SENIOR JUSTICE NELSON