[1982] SILR 19

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 8 of 1981

MAHABIR

v

CHAN WING MOTORS LTD

High Court of Solomon Islands
(Daly C.J.)
Civil Appeal Case No.8 of 1981

21st January 1982

Employment - long service benefits - entitlement - "citizen of Solomon Islands" - date when to be ascertained - section 22 of the Employment Act, 1981 - hearing before Commissioner - procedure.

Facts:

The Appellant was employed by the Respondent from October 1970 to October 1976. He became a citizen of Solomon Islands on 29th April 1980. On 1st June 1981 the relevant parts of the Employment Act 1981 came into force. On 27th July 1981 the Appellant claimed long service benefits from the Respondent under Part III of that Act. The respondent refused to pay. It was common ground that, apart from the operation of Section 22 of the Act, the Appellant would be entitled to such benefits. Section 22 did not restrict entitlement of a citizen of Solomon Islands.

Held:

The first element to consider is whether the appellant was a citizen of Solomon Islands at the relevant time. As section 22 spoke of conferment of a benefit then the relevant time was the moment at which the Appellant became entitled to payment. Section 17(1) of the Act provided that entitlement only arose on the happening of one of three events. In this case the relevant event was the making of a claim and therefore the relevant date was 27th July 1981. As at that date the Appellant was a citizen of Solomon Islands section 22 did not apply to him.

Case referred to:

Croxford -v- Universal Insurance Co. (1936) 2KB 233

For the Appellant: A. Radclyffe
For the Respondent: F. Waleilia

Daly C.J. In this case the Appellant Bissun MAHABIR appeals to this court against a determination of the Commissioner of Labour on a question of law arising from that decision under the provision of section 10(2) of the Employment Act, 1981 (No.1 of 1981) ("the Act").

The agreed facts are that the Appellant came to Solomon Islands from Fiji in 1957. At that stage he was a British Protected Person. He worked for the Government at first and on the 6th October 1970 he took employment with the Respondent, Chan Wing Motors Limited. He remained in that employment until 1st Oct 1976. The Appellant became a citizen of Solomon Islands on 29th April 1980. On 1st June 1981 Part III of the Act came into force. On 27th July 1981 the Appellant submitted to the Respondent a claim for long service benefit under that Part. The Respondent refused to pay, contending that the terms of section 22 of the Act excluded the Appellant from eligibility. There is also a suggestion that the Appellant was employed by the Respondent for a fixed term, but that fact is not agreed.

The matter was referred to the Commissioner of Labour under section 10(1) of the Act and after a hearing on 16th November 1981 the Commissioner of Labour determined that the Appellant was "excluded from having rights to Long Service Benefits by virtue of s. 22 of the Employment Act".

Thus the question of law before this court is a short one, that is, does section 22 of the Act exclude the Appellant from having rights to Long Service Benefit under Part III of the Act? As the matter was argued before me it was accepted that, by virtue of the Appellant’s employment with the Respondent, the Appellant would be entitled to benefit under Part III apart from the operation of section 22 of the Act.

Section 22 of the Act provides as follows: -

"Nothing in Part II or III or section 21 or 23 confers any right or imposes any obligation in respect of a person for any period in which he was employed for a fixed term (whether or not the term might be renewed) unless he is a citizen of Solomon Islands."

This section too came into force on 1st June, 1981.

The exclusion contained in this section involves two elements:

(a) any period of employment for a fixed term is not to be counted towards entitlement to inter alia, long term benefit; unless

(b) the employee is a citizen of Solomon Islands.

Thus if the employee is or was a citizen of Solomon Islands at the appropriate time section 22 does not apply to him at all and fixed term or not is of no importance. If however the employee is or was not a citizen of Solomon Islands at the appropriate time then it becomes necessary for it to be established whether or not his employment was for fixed term.

I shall therefore consider element (b) first. Let me first look at what the Commissioner said in what he called his "comment" but which really contains the reason for the determination:

"The purpose of the Employment Act 1981 was to provide LSB for those who had no pension rights prior to the introduction of the NPF.

The reason for excluding expatriates on fixed term contracts was that this type of contracts normally includes a gratuity or other beneficial terms in lieu of pension rights. In the absence of evidence to the contrary we have accepted that Mr Mahabir was on fix contract.

We believe that it would set a precedent contrary to the intention of Parliament if this case were to succeed as many expatriates who were adequately compensated for pension benefits and who are now citizens would obtain double benefit.

The meaning of S. 22 of the Employment Act 1981 as it stands may have a different meaning to the intention of the Act."

This case, then, involves an interesting point on interpretation of a statute. The first observation I must make is that the statute must be read as a whole and effect be given to the intention of the legislature as discernable from that reading. Where the legislature has chosen to use words in the statute which have a natural and clear meaning then effect must be given to that meaning. As Lord Justice Scott said in Croxford v. Universal Insurance Co. (1936) 2 K.B. 233 at page 281:-

"Where the words of an Act of Parliament are clear, there is no reason for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute."

The Act itself confers benefits both as to redundancy payments and long service benefits on persons who were in employment on 1st October 1976. As far as long service benefits are concerned, it is clear that there is an intention to exclude employment in respect of which the employer has contributed towards a pension scheme (section 16(2)) or in respect of which he is eligible for a pension or gratuity under the Pension Act (section 16(3)). On the basis of these provisions and from section 15 itself counsel for the Respondent contends that there is a general intention to exclude those for whom other provision for pension was made prior to 1976. He goes on to adopt the finding of the Commissioner that, as it must be assumed that salaries for expatriates included an element of "gratuity or other beneficial terms in lieu of pension rights", then it must have been the intention of the legislature to exclude expatriates and section 22 should be construed accordingly.

Counsel for the Appellant on the other hand contends that the words of section 22 are clear on the face of them and do not permit such an interpretation.

To turn again to section 22, the person said not to be excluded is described by the words "citizen of Solomon Islands". There is no reference to indigenous Solomon Islanders such as occurs in Chapter III of the Constitution. This is, no doubt, for the very good reason that, should the section exclude persons on the basis that they were not indigenous Solomon Islanders, then this might well make the section discriminatory within the meaning of section 15(1) of the Constitution in a way which was not saved by section 15(5)(a) of the Constitution which permits a law to discriminate only "with respect to persons who are not citizens of Solomon Islands". In my judgment therefore the only test to be applied in respect of this part of section 22 of the Act is, is or was the applicant at the appropriate time a citizen of Solomon Islands? It follows therefore that the Commissioner was wrong in using the term "expatriate" which is a word not used in the Act. To this extent the statute is clear.

The next question that arises is, what is the appropriate date in relation to which one should apply this test?

It was submitted to the Commissioner by counsel for the Respondent (who does not appear in this court) that section 22 in referring to "a citizen of Solomon Islands" only referred to persons who automatically became citizens on Independence Day, that is 7th July 1978. The implication was that a person who became a citizen at a later stage was not within the meaning of those words. There seems to me no basis for such a proposition. Without words of restriction the words "a citizen of Solomon Islands" must be given their natural meaning. They must include everyone who on the appropriate date is such a citizen. As I have indicated, a provision with the effect sought by counsel might well be unconstitutional.

What then is the appropriate date for the assessment of citizenship? There are a number of alternatives:-

(a) 1st October, 1976; this is a date which cannot possibly be used for these purposes as at that date there was no such status as "citizen of Solomon Islands".

(b) 7th July, 1978: this would be the date for the automatic citizenship test discussed earlier. But how can it said to be at all relevant to an Act passed in 1981 unless that Act specifically refers to such a date? Indeed if one reads the section carefully it will be seen that the section is couched in the present tense and therefore to say that one must look to an earlier date is supported neither by the grammar nor by the sense. Therefore this date too must be excluded.

(c) 1st June, 1981

(d) 27th July 1981.

The last two dates referred to are respectively the date when the relevant parts of the Act came into force and the date when the application was made for long service benefit. I shall consider these two possibilities together.

Section 22 states that "Nothing in…. Part III confers any right or imposes any obligation in respect of a person... unless he is a citizen of Solomon Islands." In my judgment the only interpretation that can be placed upon these words, bearing in mind that the present tense is used throughout, is that it is the status of the applicant at the moment when the right is conferred that must be ascertained.

The question is, then, at what date was the right conferred by Part III? The facts on which the right is based were ascertainable at any time after the 1st October 1976. However the rights under Part II only come into existence on the day when that Part came into force which was 1st June 1981.

But were the rights even at that stage conferred? Section 17(1) of the Act provides:-

"(1) An employee is not entitled to payment of long service benefit unless, on or before 31st December 1982:-

(a) the payment has been agreed; or

(b) the employee has made a claim for the payment by notice in writing to the employer; or

(c) any question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Commissioner of Labour."

The use of the words "not entitled" here again must be given their natural meaning. Thus the Act is saying that no title to payment exists until one of the conditions precedent contained in Section 17(1) is satisfied. In this case the employee (the Appellant) made a claim on 27th July 1981 so at that stage he became "entitled" to payment of long service benefit and a right to such payment was conferred upon him. That being so, the appropriate date in relation to which the question as to status of the Appellant must be asked is 27th July, 1981.

It follows that, as the Appellant was a Solomon Islands citizen on 27th July 1981 he had a right conferred upon him at that date and he is not excluded by section 22 of the Act. The answer to the question I asked myself at the outset of this judgment is, no.

It is not in those circumstances necessary for me to consider element (a) of the section which was in issue on the facts. As I have been asked to do so, however, I shall say something generally about procedure in a matter such as this before the Commissioner and this court. It seems to me desirable that before the hearing is commenced the facts be agreed by both sides. These can be reduced to writing and signed by the parties as agreed and presented to the Commissioner. If the facts or any fact remain in dispute then the Commissioner should hear evidence on oath which the opposing party may cross-examine. He should then make his findings of fact and apply the law to them. This court has only power to consider questions of law so the facts must be for the Commissioner to determine.

I should add that I was impressed by the thorough way in which the Commissioner kept the record and his careful and full consideration of the issues. I hope he will not think that the fact that I differ from him in the final result on this difficult issue is any reflection upon the way he dealt with this case.

The appeal is therefore allowed.