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Vasaris v Takal [2002] VUSC 29; Civil Case 128 of 2000 (17 May 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

CIVIL CASE No.128 of 2000

IN THE MATTER OF an appeal from the Magistrate’s Court of the Republic of Vanuatu

BETWEEN:

GEORGE VASARIS

trading as George Vasaris & Co.

Appellant

AND:

LEIRIP TAKAL

Respondent

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Mark Hurley for the Appellant

Mr. Garry Blake for the Respondent

JUDGMENT

This is an appeal lodged against a judgment of the Magistrate’s Court issued on 6 September 2000.

The Plaintiff/Respondent, Mrs. Leirip Takal is a former employee of the Defendant/Appellant, Mr. George Vasaris. The Respondent commenced her employment with the Appellant as Secretary/Typist in or about June 1992 and ended on 30 October 1998. On 30 October 1998 the Appellant required the attendance of the Respondent in his office. The Respondent approached the Appellant in his office with a letter expressing he desire to resign with immediate effect. The Appellant perused the contents of the resignation letter and accepted the resignation as requested by making a note on the bottom of the Plaintiff’s letter. The Respondent attempted to demand to the Appellant unpaid leave. The Appellant denied any claim to this effect. The Respondent/Plaintiff filed her claim seeking for payment of untaken leave amount to Vatu 255,142 plus interest and costs.

The Appellant/Defendant filed a counterclaim and/or set-off. The basis of that counterclaim /set-off is that by reason of the said agreement that the Plaintiff resign from her employment with the Defendant with immediate effect on 30 October 1998 and pursuant to Section 49 of the Employment Act [CAP.160], the Plaintiff/Respondent was required to provide the Defendant with 3 months notice prior to the termination of the employment.

Therefore by reason of the Respondent’s failure to provide the Appellant with the 3 months notice written notice pursuant to Section 49 of the Act [CAP.160], the Defendant was entitled to se-off the difference which was not given and the Plaintiff’s annual leave of Vatu 290,346 – Vatu 255,142 = Vatu 35,204.

On 6 September His Worship Magistrate Steve Bani made the following Orders:

1. The Defendant is ordered to pay the Plaintiff the sum of VT 255,142 forthwith;

2. Interests on the said sum shall be paid at a rated of 10% per annum from 30 October 1998 until full payment is effected.

3. The Defendant shall meet the costs of this proceedings.

Initially there was appeal against 2 grounds as set out in the Notice and grounds of appeal dated 6 December 2000. But it is now restricted tot the following ground:

“2. In the alternative, the Learned Magistrate erred by misdirecting himself by failing to hold that as a matter of law, the legal consequence of this factual finding that “the Plaintiff had failed to give the Defendant 3 months notice, and I so rule”, was that the Defendant was entitled to set-off the equivalent of 3 months salary from the amount of outstanding leave due to the Plaintiff as at her resignation date of 30 October 1998.

On appeal this Court is invited to decide on the proper construction of Section 49(4) of the Employment Act [CAP.160], as amended; (“the Act”).

There is no dispute between the parties in respect to the material facts.

Section 49(4) says:

“Notice of termination need not be given if the employer pay the employee the full remuneration for the appropriate period of notice specified in subsection (3)”.

To understand the meaning of Section 49(4) you need to read Section 49(1). The Learned Magistrate is correct when he ruled under s. 49(1) either party may give notice to terminate a …………….. when the term of the ……………. Is continuous. The employer or employee may give notice tot the other for his intention to terminate the ………………

By s. 49(2) the may be given at any time. Section 49(3) provides for ground of notice and the notice period – acceptance. The question is whether Section 49(4) has any application in the present case.

In this case the Respondent informed the Appellant of her intention to resign from her employment with immediate effect to this effect.

That acceptance of the Respondent’s resignation with immediate effect by the Appellant amounted to the employer accepting to pay full remuneration of the appropriate period of notice as specified under Section 49(3).

The appeal is then dismissed with costs.

DATED at PORT-VILA, this 17^th DAY of MAY, 2002

BY THE COURT

Vincent LUNABEK

Chief Justice