Teaching Service Commission v Nimbtick
JUDGMENT OF THE COURT
Introduction
1. This is an application for an extension of time to appeal a judgment of the Supreme Court dated 21 August 2025. The Appellants are the Teaching Service Commission (TSC) and the Republic of Vanuatu (together the Appellants). In the Supreme Court John Nimbtick (the Respondent), was successful in obtaining various orders against the Appellants, directing significant relief for the unlawful and unjustified termination of his employment as a school principal.
2. The central issue in the appeal if an extension is granted is whether the terms of the employment contract between Mr. Nimbtick and the TSC governed the situation when Mr. Nimbtick’s employment contract was terminated and meant that no notice process was required. The alternative as found by the primary Judge was that the Teaching Service Act 2013 (the TS Act) applied with its procedural safeguards for employees where they have the opportunity to answer allegations made against them.
3. In terms of the merits, it was argued by the TSC that the terms of the contract applied and that the correct notice had been given by the TSC. In contrast it was argued by Mr Nimbtick that the TS Act applied and that there had been a breach of the provisions applying to termination. The judgment found that the termination was unlawful, and the Respondent was entitled to relief.
The extension of time
4. The approach to an extension of time claim is set out in Laho Ltd v QBE Insurance (Vanuatu) Ltd [1]. The relevant considerations are:
• The length of the delay;
• The reasons for the delay;
• The chances of the appeal succeeding if the time for appealing is extended; and
• The degree of prejudice to the potential respondent if the application is granted.
5. Here the length of the delay in filing the appeal was five months and four days. This is in comparative terms a long delay, particularly considering that the Appellants are the Republic and its Commission.
6. The explanation for the delay has been that first there was a delay in the Ministry giving instructions to appeal. Then when the instructions were received, there was a considerable delay for various administrative reasons in carrying them out. We find the explanation unsatisfactory. It should be an absolute priority for lawyers acting for the State to comply with time limits and directions.
7. We record in terms of prejudice, that the delay was so long that we are prepared to assume some inevitable prejudice to the Respondent who has been unable to enjoy the fruits of the judgment and has had extra months of uncertainty. However, we have not been able to discern any specific prejudice.
8. The critical issue as we see it is the merits of the appeal, which we now address.
Background
9. 4 November 2020 Mr. Nimbtick was appointed the principal of Aulua School in South East Malekula. On that day a letter was sent to him by the TSC approving his appointment on a contract basis at an annual salary of VT3,135,600. The term was four years. It was noted that the appointment did not have a probationary period and that he was appointed on a fixed-term contract. There was a formal contract to be signed.
10. An employment contract was signed, and the date recorded was 8 December 2020. There was a provision relating to termination, clause D7 of that employment contract, which will be addressed in detail later in this decision.
11. Mr. Nimbtick encountered difficulties at Aulua School. On 13 January 2022 he wrote to the TSC requesting a transfer to Navele school in the Sanma Province. In that letter he explained that issues had arisen following the death of staff relating to Nakaimas (witchcraft). Other issues of concern had arisen, and his wife would not accompany him back to the school unless he was transferred to a different School in another province.
12. On 7 October 2022 the TSC met and resolved that Mr. Nimbtick would be transferred to Pialulup School with immediate effect. Mr. Nimbtick’s contract would be later reviewed.
13. It is accepted by all parties that Mr. Nimbtick did not go to Pialulup School. Mr. Nimbtick asserted that the decision that he go there was never communicated to him. His evidence was that it was not until a termination letter of May 2023 that there was any communication about the matter. However, Mr. Ova, the secondary coordinator in the Sanma education office, provided a sworn statement that at a staff meeting on the 27 February 2023 it had been resolved to re-locate Mr. Nimbtick following his absence from Aulua School being noted. Mr. Ova was to make the necessary logistical arrangements with Mr. Nimbtick to travel to Pialulup School.
14. Mr Ova stated in his sworn statement that all through the months of March, April and May he attempted to contact Mr. Nimbtick about the transfer, and that he indeed informed Mr. Nimbtick of his transfer to the new post. He said they met in a number of places which he specified. Mr. Nimbtick, in his evidence, denied that he had ever been told by Mr. Ova about his transfer. It was common ground that it was normal to give a formal transfer letter for a transfer to a new School and this was not done during this timeframe.
15. The primary Judge after analysing the evidence, accepted Mr. Ova evidence that he made contact with Mr. Nimbtick and told him to take up the transfer to Pialulup School.
16. Mr. Nimbtick’s non-attendance at Pialulup School eventually came to the attention of the TSC. The TSC was also informed that Mr. Nimbtick had been awarded a Vanuatu Government scholarship and that he had accepted the award.
17. The TSC resolved at its meeting on 11 May 2023 to give Mr. Nimbtick one month’s notice of termination of his contract as principal of Pialulup School in accordance with clause D7.1(b) of the employment contract. TSC communicated that decision in the letter to Mr. Nimbtick dated 15 May 2023. The letter of termination read:
Dear Mr. Nimbtick,
ONE (1) MONTH NOTICE OF TERMINATION OF YOUR EMPLOYMENT CONTRACT WITH TEACHING SERVICE COMMISSION
The Commission Board at its meeting No. 10 on the 11th May 2023 has deliberated on a complaint made against you on the 19th April 2023 by the Acting PEO of Sanma Education Office that you were not in your allocated school at Pialulup School and currently receiving a full salary without occupying the Principals position, which is a possible breach of clause D1.4 of your contract agreement.
The Commission was made aware that you had been informed by the Sanma Education Office of vour transfer to Pialulup School to head the school however to date you are not in the school. Furthermore, the Commission has been made aware through the Scholarship Unit that you had been awarded a scholarship and signed off on your award to which you do not have any approved study leaves which is a possible breach of clause D4.2 of your contract agreement.
Thus, the Commission wishes to give one month notice of Termination of your current employment contract as Principal of Pialulup School in accordance with clause D7.1(b) of your contract agreement, effective as of the date of this letter.
…
The Supreme Court decision
18. In the Supreme Court it was argued for Mr. Nimbtick that TSC should have served him with the transfer decision or informed him in a more formal way of the transfer in addition to claiming that he was never told of the transfer until he got the letter of termination. It was claimed that the process of termination was procedurally unfair to Mr. Nimbtick who never got a chance to respond to the allegations. It was said that Mr. Nimbtick’s contract related to his role as principal of Aulua School and not Pialulup School and that the contract itself did not specify that TSC had any right to transfer Mr. Nimbtick under the original contract. It was claimed that Mr. Nimbtick never breached any terms of his employment contract.
19. For TSC it was argued that there had been termination under clause 7.1 of the contract given Mr. Nimbtick’s failure to comply with the transfer direction and his acceptance of a government scholarship. The termination was justified because of Mr. Nimbtick’s breach of his employment contract. It was pleaded that the Claimant’s employment was terminated “for breaching his contract of employment” by applying for the scholarship, and by accepting the scholarship without informing his employer and for breach of clauses D 1.4, D 4.2 and D 7.1(b).
20. The Judge in her decision relied on s 42(3) of the TS Act 2013 which provides:
“A contract under this section may exclude the person engaged under the contract from being subject to this Act or certain provisions of this Act and may be for such a period as the Commission determines”.
21. She found that there was nothing in the employment contract to suggest that the Act or certain provisions of the Act would not apply to Mr. Nimbtick. She noted that the TS Act confirmed that the Teaching Service Act applied along with the employment contract. The Judge inferred that TSC either overlooked or ignored the application of the TS Act as it applied to Mr. Nimbtick. She found that the Act must prevail over the employment contract.
22. There were certain disciplinary procedures to be followed when a breach of discipline was alleged or suspected. Part 9 of the TS Act sets out the disciplinary procedures to be followed. In particular, this provides that an employee must be given a reasonable opportunity to make a submission as to the penalty for a breach of discipline. There is a range of penalties that the TSC has the discretion to impose. The TS Act has two requirements of procedural fairness when disciplinary issues arise. The first, when the allegation is first made, there must be a chance to respond, and then again prior to the imposition of penalty.
23. It appeared to be common ground that where a failure to obey a transfer direction is suspected, under the TS Act, an investigation is mandated. Mr. Nimbtick would have had a reasonable opportunity to respond before a decision was made if this had been done. The Judge concluded by saying:
[51] Therefore, for the reasons set out in the preceding paragraphs, it is more likely than not that Mr Nimbtick's employment was unlawfully or unjustifiably terminated. That is because there was an alleged or suspected breach of discipline, and so the TSC was obliged to follow the disciplinary procedures set out in Part 9 of the Teaching Service Act. As detailed above, Mr Nimbtick should have had an opportunity to respond to the alleged discipline breach before a determination was made. Once a determination was made, there should have been a further opportunity to respond before termination of employment. But as noted, the TSC did not follow any of the procedures laid down in Part 9 of the Act.
The Employment Contract
24. The Appellants rely on clause D7 of the Employment Contract. It provides:
This agreement may be terminated.
a. Automatically and without notice
• If after agreement and signature of this contract, the employee fails to join his post when called upon to do so by the Administration.
• Following a serious offence on the decision of the Teaching Service Commission.
b. With notice
• In case of removal of post for any other reason the TSC shall give the employee no less than one month notice. If the employee terminates his agreement, he shall give no less than one month notice to the TSC.
• In the event that the Teaching Service Commission is dissatisfied with the performance of employee as outlined in the review document produced under clause D3 of the agreement TSC may terminate the appointment of the employee with one month's notice.
c. For reasons of Heath
If the employee is certified medically unfit for service by a recognized Medical Practitioner, he is entitled to payment of his earned entitlements regarding leave.
25. These contractual provisions must be contrasted with the provisions in the TS Act, relied on by the primary Judge. They set out at s 54 a Disciplinary Investigation procedure, and at s 54 (2) require that the employee in question be advised of details of the alleged misconduct and given a reasonable opportunity to respond. Section 42(3) has already been referred to. It provides that an employment contract under that section may exclude the person engaged under the contract from being subject to this act or certain provisions of the Act. This provision was considered by the primary Judge, but it was found that the contract did not exclude the Act and its compulsory provisions as determination.
Discussion of the merits
26. The Judge’s decision dealt in detail with an important matter of fact, namely whether Mr Nimbtick was told of his obligation to transfer to Pialulup School. She found that he was told of his transfer and there was no challenge to that part of her decision. It seems that Mr Nimbtick knowing that he had been transferred to Pialulup School chose not to go, and did not discuss this with the TSC. He was absent through the first half of 2022.
27. However, the primary issue is one of construction of clause D7, set out above at paragraph [24]. The first part of clause D7 sets out at (a) a term relating to termination automatically and without notice. This clause was not relied on by the TSC in its letter of termination, or in submissions.
28. The clause that was relied on was clause (b) of D7.1 headed “With Notice” which has two bullet points. The first bullet point relates to a case of “removal of post.” The phrase can only mean what it says. It is about removal from a “post” as distinct from termination. We see that as referring to a person being removed from a particular position within the teaching service, but not termination. It would not have therefore warranted one month’s termination of employment of the type notified on 15 May 2023. It gave no jurisdiction to send such a letter.
29. The second bullet point in contrast does refer to termination. If the TSC is dissatisfied with the performance of an employee “…as outlined in the review document produced under clause D3 of the agreement it may terminate”. Clause D3 sets out a clause relating to “Performance Review and Assessment”. It is common ground that no such Performance Review was carried out.
30. Therefore, on its plain words clause D7.1 (b) did not apply at the time of termination, as it only applied where there had been a Performance Review and there had been no such Review. There was no right to terminate under clause D7.1 (b) or any other clause in the agreement. Unsurprisingly a process had to be undertaken before a person working for the TSC could have their employment terminated. That process was ignored by the TSC.
31. Further, we agree with the primary Judge’s reasoning in relation to the exclusion of the TS Act. We begin by looking at the basis on which the Contract was signed. Did it in terms of s 42(3) exclude the TSC? In our view the Judge was right in concluding that it did not. There is no reference in the contract to the TSA or its application. There is no clear exclusion of the provisions of the Act.
32. Further in the letter of 4 November 2020, informing Mr. Nimbtick of his employment as principal of Aulua Centre School it was stated that his appointment had been approved “In accordance with Part 5 s 42(2) of the Teaching Service Act”. It is stated that the terms and conditions are set out “below” and the key terms are set out. It was noted further down that:
The terms and conditions of service applicable to the Teaching Service are contained in the Teaching Service Act and Teaching Service Staff Rules and your contract agreement that will apply to you, You should familiarise yourself with their contents.
33. This is a clear indication that the TS Act and rules continue to apply. We accept that it is stated in the recitals to the contract itself that the TSC and the employee agree that the employee will be engaged in his capacity in accordance with the terms and conditions set out in the agreement, which is defined as the agreement of service. However, these words do not exclude the application of the TS Act. It would require a clear and explicit provision to exclude the usual safeguards for employees provided in the TS Act and the Employment Act.
34. We conclude therefore that the employment of Mr Nimbtick was unlawfully terminated, and uphold the Judge’s decision.
The relief granted
35. The termination being unlawful, Mr Nimbtick was entitled to relief as prescribed by law. Given the invalid termination his contract continued until the expiry of its term. As was stated in Republic of Vanuatu v Arnhambat [2]
16. We have found that this fixed-term contract was brought to an unjustified end. In such a situation, an employee can recover the balance of his or her contractual entitlements as set out in this Court’s judgment in Republic of Vanuatu v Watson [2023] VUCA 31 at [36]-[38].
17 Mr Bong submitted that Mr Arnhambat had not carried out any work therefore he was not entitled to salary. As set out in the Watson case referred to above, the principle of no work, no pay was discussed and applied in the judgment of this Court in Robertson v Luganville Municipal Council [2001] VUCA 14. However, that case is distinguishable on its facts as it was not a fixed-term contract case. Accordingly, there is no merit to this ground of appeal and the primary Judge was correct to award payment of 3 months’ salary.
36. The primary Judge relied on this case, finding that Mr Nimbtick was entitled to recover the balance of his contractual entitlements. We see no reason to interfere with that decision.
37. Mr Nimbtick was also ordered a severance allowance. Part 11 of the Employment Act (‘the Act”) creates a specific regime with regard to payment of a severance allowance to employees. Section 54 of the Employment Act provides that when an employer terminates the employment of an employee who has been in continuous employment for at least 12 months, the employer must pay a severance allowance to the employee under s.56.
38. Section 56 provides:
56. Amount of severance allowance
(1) Subject to the provisions of this Part, the amount of severance allowance payable to an employee shall be calculated in accordance with subsection (2).
(2) Subject to subsection (4) the amount of severance allowance payable to an employee shall be –
(a) for every period of 12 months – 1 months remuneration;
(b) for every period less than 12 months, a sum equal to one-twelfth of the appropriate sum calculated under paragraph (a) multiplied by the number of months during which the employee was in continuous employment.
……………..
(4) The court shall, where it finds that the termination of the employment of an employee was unjustified, order that he be paid a sum up to 6 times the amount of severance allowance specified in subsection (2).
……………..
39. There can be no dispute that Mr Nimbtick was entitled to be paid a severance allowance in accordance with s 56(2), as the contract commenced on 3 December 2020, and Mr Nimbtick’s employment was terminated on 15 May 2023. It is stated in the Employment Act that such a payment “shall” be made.
40. In Milai Vanuatu Ltd v Wilson [2024] VUCA 50 [3], the Court of Appeal took the view that the purpose of s 56(4) was compensatory but noted that there was debate as to whether it is a reflection of the circumstances of the dismissal or more compensatory for a person who is unable to find work. There was no evidence that Mr Nimbtick was unable to find work, and he was in receipt of a Government scholarship through 2023. There was no evidence as to the terms of that scholarship, but it can be assumed that it had some benefits.
41. The judge held that in terms of assessing the multiplier under s 56(4), there was no evidence at all to assess the multiplier, whether compensatory or to reflect the circumstances of the dismissal itself. Mr Nimbtick gave no evidence in his sworn statements or during the trial as to the effect of the termination of employment on him, or his ability to find employment. As the Court of Appeal explained in Republic of Vanuatu v Watson [4], an employee on a fixed term contract is better off than an employee whose term of employment is not for a fixed term, because they may expect to receive the balance of their entitlements for the remaining term of the contract. In that case the Court of Appeal took this advantage into account in reducing the applicable multiplier from 4 to 2.
42. Taking both these factors into account, the primary Judge applied a multiplier of one, which meant that Mr Nimbtick was to be paid the bare severance allowance. We agree with her decision. No additional severance above the minimum had been shown to be warranted.
43. We note that there is no cross-appeal against the Judge’s refusal to order damages for stress. We record that in the circumstances of Mr Nimbtick not having taken up his new posting or offered any explanation for this, we agree with the Judge’s decision.
Conclusion on the merits
44. We conclude therefore that the appeal has no merit. On appeal it would have been upheld on all points.
Result
45. The application for extension of time is refused.
46. For the avoidance of doubt, we record that we would have dismissed the appeal on its merits.
47. Costs should follow the event. The parties agreed that VT50,000 was the appropriate amount and we order that this sum be paid as costs by the Appellant to the Respondent.
DATED at Port Vila this 15th day of May 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek
[1] [2003] VUCA 26
[2] [2024] VUCA 29
[3] Milae Vanuatu Ltd v Wilson [2024] VUCA 50
[4] [2023] VUCA 31
[2] [2024] VUCA 29
[3] Milae Vanuatu Ltd v Wilson [2024] VUCA 50
[4] [2023] VUCA 31