Fiji Electricity Authority v Naiyaga [1998] FJHC 77; Hba0004aj.96s (29 May 1998)

Fiji Islands - Fiji Electricity Authority v Naiyaga - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL APPO. 4A OF 1996
(High Court C.A. No. 625 of 1988)

BETWEEN:

FIJI ELECTRICITY AUTHORITY
Appellant/ Original Defendant

AND:

MANASA NAIYAGA
Respondent/ Original Plaintiff

Mr. Anu Patel for the Appellant

Mr. K. Bulewa for the Respondent

This is an appeal by the defendant FIJI ELECTRICITY AUTHORITY (the "Appellant") to set aside the Assessment of Damages Judgment (the "AOD") delivered by the then Chief Registrar SEKOVE NAQIOLEVU Esq., (the "CR") on 11 December 1995 AND that a fresh assessment be granted. The damages assessed was $106,224.32 in favour of the Respondent. It is a matter of great concern that it took CR over 5 years to give his judgment on the assessment of damages pursuant to the judgment of Jesuratnam J on 12 April 1990.

The Grounds of Appeal and Cross Appeal respectively are as follows:

Grouf Appeal

"(1) The Learned Chief Registrar erred in law and in fact in finding the plaintiff was employed for "a fixed term or for a permanent nature" and

accordingly fixing loss at the total of salary for seven (7) years.

(2) The Learned Chief Registrar erred in Law iling to give reasons as toas to why he found the plaintiff's employment was for a fixed term or of permanent nature.

(3) The Learned Chief Registrar erred in Law and in fact in awarding an amount which is inordinately high in all the circumstances of the case."

Cross Appealp class=MsoNormal style="margin-left: 36.0pt; margin-top: 1op: 1; margin-bottom: 1">

"(a) That the Chief Registrar erred in law and fact when rejecting the Plaintiff's claim relating to special damages when the same were reasonably foreseeable and were losses suffered by the Plaintiff as a direct consequence of the unlawful termination of his employment.

(b) That the Chief Regi erred in law and fact in not taking into account, Fiji Nati National Provident Fund, Retirement, Long Service Leave, loss of promotion and insurance benefits when these matters were part of the renumeration package under the Collective Agreement in question."

Background facts

The Respondent's this action (C.A.625 of 1988) against the Appellant for unlawful dismissal commenced on 22 September 1988 by Originating Summons. The Respondent/Plaintiff (the "Respondent") was until 3 September 1987 employed as a stock officer by the Appellant at its stores in Kinoya, Suva when it allegedly "unlawfully" purported to terminate his services by a letter addressed to him.

On 12 April 1990, after trial, JESURATNAM J (now no longer in Fiji) ered judgment in this actioaction when he adjudged that the Respondent's dismissal was "unlawful in the circumstances of this case" and he "directed" that the Chief Registrar assess damages.

The Chief Registrar's award which is undated is $10.32; no special damages were awarded and costs were ordereddered to be taxed if not agreed.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Details regarding the Respondent's employmith the Appellant and the circumstances leading to his dism dismissal from service are set out in the Affidavit sworn by him on 21 September 1988 filed in support of the Originating Summons herein. I see no point in going into his employment record and the correspondence that took place between the parties prior to his dismissal suffice it to refer to the said judgment.

Both counsel argueir respective grounds of appeal before me and I have given their submissions due consideraideration.

Appellant's contention/p>

Mr. Pate the Appellant questions whether CR was correct in finding that the employment was for a fi a fixed term, namely, until the retiring age under the Collective Agreement (the "agreement") between the Appellant and the Respondent. The Chief Registrar assessed damages accordingly i.e. 7 years' net salary thus: ($1256.48 x 12 = $15,177.76 x 7 = $106,224.82).

Mr. Patel says, as to hocame to this assessment is not demonstrated in his assessment. He said that generally contrcontracts for services may be terminated upon giving of reasonable notice and for that proposition he referred the Court to a number of authorities. He also referred the Court to clause 4(6) of the agreement which provided that the "service of a salaried staff member may be terminated by giving one month's notice or by the payment of one month's salary in lieu of notice by either the employee or the Authority ...."

Mr. Patel put forward in this Appeal the same argument which he put before CR, and this is contained in the AOD (vide pages 2 and 3 thereof).

Respondent's contention

Mr. Bulewa for the Respondent submits that the contract is outside the terms of the agreementsaid that CR was entitled tled to hold that the contract was of a permanent nature and that the 7 year period was reasonable. At the time of dismissal the Respondent was 48 years of age. He had served the Appellant for thirty years.

Mr. Bulewa's arguments in thieal are also the same as the ones he put before CR and they are to be found in the AOD.

Consideration of the issue <1"> The initial qon which arises is the extent to which this Court should seek to interfere with CR's findinindings. The law provides for appeal. On the procedural aspect pertaining to appeal from Chief Registrar, I refer to the following extract from the judgment of F.X. ROONEY J in THE ATTORNEY-GENERAL OF FIJI & MAIKA RATU and SUBHASH CHAND (Civ. App. 14/85):

"Procedural problems require to be dealt with first. The Chief Registrar is a mast master of the Supreme Court by virtue of the definition in Order 1 Rule 4 of the Rules of the Supreme Court (R.S.C.) as modified in their application to Fiji. A master may assess damages under Order 37 Rule 1. Appeals from the Chief Registrar and Deputy Registrars are provided for under Order 58 (as amended). The appeal lies to a Judge in chambers. In England an appeal against an assessment of damages lay in 1967 to the Court of Appeal under Rule 2 which no longer applies in Fiji. Appeals from certain other decisions lay to a Judge in chambers under Rule 1 and are dealt with:-

'by way of an actual reheari the application which led to the order under appeal and thnd the Judge treats the matter as though it came before him for the first time.'

(Note 58/1/2 White Book 1967 at 725)."

In coning this Appeal I bear in mind the third proposition from the speech of LORD THANKERTNKERTON in WATT (or THOMAS v THOMAS) (1947) AC 484 at 487-488 which states:

"111. The appellate court, either becausereasons given by the trial rial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court ..."

I also take note of following extract from ROONEY J's, judgment p.2 (supra) nsidering this appeal:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "When Rule 2 was repealed for Fiji, I do not think that it was envisaged that a Judge in chambers would treat the appeal against an assessment of damages in the same way as other decisions made by a master to which Rule 1 applied. It is a question of the weight to be attached to the decision of the Registrar who as in this instance, has had the advantage, which I have not, of having seen and heard the witnesses who gave evidence before him. I am of the opinion that my position is no different than it would be if I was hearing an appeal from the decision of a magistrate. It follows that in approaching this appeal I must apply the test laid down by Lord Wright in Davies v. Powell Duffyn Associated Colleries Ltd (1942) A.C. 613. Before I may interfere with the award of damages, I must be satisfied that the learned acting Registrar acted upon a wrong principle of law, or had misapprehended the facts, or had for these or other reasons made a wholly erroneous estimate of the damage suffered. [Ram Charan and others v. the Public Trustee of Fiji 19 F.L.R 150]."

Groundsand (2) can be dealt with together as they raise the same issue, namely, whether CR was cors correct in fixing the loss as he did. The answer to Ground (3) will lie on the findings in (1) and (2).

As for Cross Appeal, the Respondent maintains that special damageht to have been awarded. The two grounds (a) and (b) can bean be dealt with together.

(a) CR's findings

The Chief Registrar's finding contained in the last 8 paragraphs of the AOD. The gist of the reasons behind his decisionision is contained in the following paragraphs which stated:

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "In considering whether the plaintiff was employed for a fixed term or for a permanent nature, in accordance with the collective agreement, which means he will be employed until he attains the retirement age. I am fortified by the authorities of Salt's case and the McClelland [1936] 3 All ER and [1957] All ER 129 cited above and the collective agreement that the plaintiff after the probation period is entitled to a permanent employment subject to any disciplinary proceedings on the conditions in the agreement.

I consider the plaintiff is ent to be employed until he attains the retirement age and in d in accordance with the collective agreement which is entitled from time to time is 55 years old.

I agree with counsel for the defenat in relation to the conseconsequential losses are not recoverable as they are not made by the plaintiff from his nett salary."

He further said:

"In considering the appropriate award under this heading I am mindful of the Attorney-General of Fiji -v- Waisale Naicegulevu FCA No. 22 of 1989 where the Court held that in assessing damages under this head the Court must assess the amount less tax and FNPF contribution. In other words the amount must be the nett salary of the plaintiff.

I find that the plaintiff is entitled to claim the period of 7 , the period of retirement ment of 55 years as per the Collective Agreement of Service.

I therefore make the award his nett salary of $1256.48 x 12 = $15,177.7677.76 x 7 = $106,224.32."

(aling with issue - Grounds (1) and (2)

On the facts which were before CR, I agree with Mr. Patel in some respects on to grounds (1) and (2) bearibearing in mind the terms of the agreement and the authorities referred to by him.

With respect I find thatlearned Chief Registrar assessed damages on a completely wrong basis.

In this case the Respondent would have retired at the age owhich meant that he had 7 years left before reaching the rehe retiring age and that is why there is mention of 7 years in the AOD. It is to be noted that, according to Mr. Ali's evidence, the retiring age by virtue of the Collective Agreement dated 1 January 1990 was 55 years of age. In view of the orders which I intend to make it will not matter whether the retiring age is 60 years or 55 years about which there is some disagreement. The agreement in clause 18(c) provides for "retirement benefit" and "retirement" in the following terms:

"(c) Retirement Benefit

ass=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> An employee is entitled to a retirement leave benefit with full pay in respect of continuous service with the Authority from the 1st August 1966, as follows:-

Ov years: 7 months

21 - 30 years: 5 months

15 - 20 years: 4 months

That the retiring age for all employees will be sixty (60) y However, at the discretionetion of the Employer, this may be extended on an annual basis.

The Employer will inform all employees in writing at the least, six (six (6) months in advance of the due date when they will be retired."

With all due respect to CR it is my considered view in the light of many authorities, to of which I shall refer herr hereafter, that damages for unlawful dismissal are not awarded in this manner, namely by awarding as damages the nett salary for the remainder of the period before retirement on unlawful dismissal. If this approach was adopted one question that immediately crops up is 'would you give damages on this basis if the remaining period was 25 years?' Definitely not in the light of the authorities on the subject according to my understanding.

Before I proceed to consider the issue further I like to refer to the following clauses in the agreement whnt which are relevant and which have been referred to in the arguments of counsel.

"4. Terms of Engagement and discharge

/p>

(a) .....

(b) The service of a salaried stamber may be terminated by g by giving one month's notice or by the payment of one month's salary in lieu of notice by either the employee or the Authority. This clause does not apply to employees in the first six months probationary period;

p class=MsoN=MsoNormal style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (c) ....."

"17.1

(a) .....

(b) .....

(c) .....

(d) .....

(e) Dismissal

No emp will be summarily dismissed until he has been suspended foed for a period of up to twenty eight (28) days to enable the Association to make representation on his behalf, should they so desire. This suspension will be without pay."

The issue now is what is the measure of damages.

(c) The Law

Now to the law on the subject of measure of damages.

In the text book TUNIONS, EMPLOYERS AND THE LAW by G.S.MORRIS & T J ARCHER 2nd Ed para.para. 3.20 at p.70 it is stated:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "The length of notice required for termination is usually specified in then the contract. If there is no express agreement between the parties, the courts will imply a term by examining whether there is a customary term as to notice and, if none, what constitutes reasonable notice in all the circumstances."

In the footnote 1. to above passage the authors say "factors such as length of service, the type of emploemployment, seniority, and the rate and frequency of payment are among those relevant in assessing reasonableness". Subject to what I say hereafter, similar considerations would apply in this case.

On the concept and implications of dismissal the authors at para 3.21 state that:

".....If the employes not terminate the contract in accordance with its terms (rms (whether express or implied), the employee can sue the employer for breach of contract. The remedy will usually lie in damages" (underlining mine for emphasis)

Elaborating on the above statement in footnote I, they say "the employee is entito recover the loss which arch arises naturally in the ordinary course of things from the breach and also for any loss which it was reasonably foreseeable by the parties as being likely to arise from the breach. See McGregor, 1988".

In HILL v C.A. PARSamp; CO. LTD (1971) 3 All ER 1345 at 1350 DENNING MR stated what the the employee is entitled to after dismissal:

"The servant cannot claim wages after the relationship had determined. He is left to his remedy in damages against the master for breach of contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less of course, anything he has earned or might have earned in the alternative employment".

(emphasis added)

The fact that the retiring age in the agreeme 55 years does not mean that it is a contractual retiring aing age. It is the age at which employees of that description in the relevant group can reasonably expect to be compelled to retire [AGE CONCERN SCOTLAND v HINES (1983) IRLR 477] [quoting from SELWYN'S LAW OF EMPLOYMENT 7th Ed].

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> For damages for unlawful dismissal, as in this case, I also refer to a texk PRACTICAL APPROACHROACH TO EMPLOYMENT LAW (1982) by JOHN BOWERS at pages 129 - 130.

At p129 the author s:

"Damages are the normal remedy for breach of contract and the usual measure is the wages the employee would have earned if due notice had been given. For that is the only period when he is entitled by contract to continue in employment. If his contract can be determined by three weeks' notice he cannot claim his loss over the next three years even though he is unemployed for that length of time; for within that period at any time he might have been dismissed with three weeks' notice." (emphasis added)

He goes on to say:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "Very large measures of damages are available only where the contract is f is for a fixed term and cannot be terminated by notice. This is most usually the case in high status occupations like company directors, football club managers and accountants. The measure of damages is then similarly the amount which would have been earned in the unexpired part of the fixed term, but here there might be four or five years to run.

From tount of damages so made up must be deducted sums to take acke account of: mitigation; taxation; and benefits received."

In the appeal before me no question of a fixed term of service arises. In view of passages referred to hereabove one month's notice would have sufficed under said clause 4(b) of the agreement but because of the very long service damages will have to be considered taking that aspect into account.

Contrary to what CR has found this was not an employment for a fixed term. Hence the '7 years'od for the purposes of asse assessing damages has been arrived at on the wrong basis. Different considerations apply in the case of fixed employment as stated in the following passage:

"for a fixed term not subject to termination tice, damages will be equivequivalent to the salary or wages over the entire period - subject, however to reduction for likelihood of re-employment within the remaining contractual period, and the possibility of termination of the contract before the expiry of the period without fault on the part of the employer. Thus the Court is entitled to take into account the risk of ill-health, premature death, and the possibility of termination by reason of fraud or misconduct in determining the quantum of damages payable". (Macken, McCarry & Sappideen's THE LAW OF EMPLOYMENT 4th Ed.1997 at p.296)

One other aspect pertaining to measure of damages is that the employee must mitigate his as a result of the breachreach. This requires the employee to diligently seek suitable alternative employment but no worthwhile submissions were made in this regard. On this subject BOWERS at p.129 says:

"He cannot sit back at hnd mount up his losses in the confident expectation that heat he will be able to claim them from his former employers. In particular he must take reasonable steps to obtain another job, and if he succeeds any wages earned in the new position will be deducted from wages due over the period of notice. If, on the other hand, he does not try to find another post, a sum is taken away to represent his lack of effort. Each case depends on its own facts but the dismissed employee does not normally have to take the first job which comes along. He may also act reasonably in refusing to take another position in the company which has just dismissed him. He is entitled to preserve a skilled job, so that a painter is not expected to take work as a general labourer (Edwards v. SOGAT [1970] 3 WLR 743) nor a managing director as an assistant manager (Yetton v. Eastwoods Froy [1967] 1 WLR 104)."

As for Cross-Appeal, CR was right in rejecting it. The Respondennot entitled to special damages and other claims which have have been rejected by him. I cannot find any authorities which allow the claims for special damages such as he claimed. On 'fringe benefits' I refer to Sappideen's (supra) where it is stated at p.299-300:

"Fringe Benefits. The employee is entitled to compensation for loss of benefits he or she would have been legally entitled to claim if the contract had been performed. Loss of fringe benefits are recoverable for the period required to lawfully terminate the employment. Thus it has been held that pecuniary loss resulting from loss of tips that would have been earned, a share of profits or bonuses over and above salary or wages, the value of board and lodgings, use of a car, allowances, relocation expenses, and pension or superannuation entitlements during the period required to lawfully terminate the contract are recoverable. In Lavarack v Woods of Colchester Ltd the Court of Appeal held that damages would not be recoverable by an employee in respect of additional benefits which the contract did not oblige the employer to confer even though the employee might reasonably have expected the employer to bestow these benefits upon him in due course. Diplock LJ said that "the first task of the assessor of damages is to estimate as best he can what the plaintiff would have gained in money or money's worth if the defendant had fulfilled his legal obligations and had done no more."

Mr. Bulewa referred the Court to McCLE v NORTHERN IRELAND GENERAL HEALTH SERVICES BOARD (1957(1957) 2 All E.R. 129 (H.L) and SALT v POWER PLANT COMPANY LTD (1936) 3 All E.R. 322 (C.A.) in support of his arguments. In view of what I state hereafter, bearing in mind the authorities that I refer to, McCLELLAND (supra) states what I am saying in regard to notice to terminate. There it was held:

"the appellant's employment had not been validly terminated by the board becausecause it was terminable only as provided in the September conditions, which were exhaustive in that respect, and, accordingly, a power to terminate her employment by reasonable notice would not be implied."

I agree with the Editorial Note to that case, and that applies here. It s:

"The decision turned on the effect of cl.12 of the September conditions, which governed the appellant's contract of service after she was confirmed in her post. It is to be noted, thre, that if the permanencanency of the appellant's employment had rested only on the offer by advertisement of a "permanent and pensionable" employmenr employment would have been held to have been a general hial hiring, and, as such, to have been terminable by reasonable notice."

Hence this case does not help the Respondent. The Appellant does not have to employ the Respondent till he retires. The Court has to bear in mind what SCRUTTON, L.J., observed in his judgment in REIGATE v UNION MANUFACTURING CO. (RAMSBOTTOM) (1918) 1 K.B. 592 at p.605 when he said:

"The first thing is to see what the es have expressed in the cohe contract; and then an implied term is not to be added because the court thinks that it would have been reasonable to have inserted it...."

As far as the case of SALT (supra) is concerned the facts and termemployment there are differifferent and can be distinguished from the case before me. Hence it has no relevance here and as the Editorial Note states "the form of engagement here is perhaps unusual in that there is a fixed period, and then a further year in which notice may be given, and thereafter the engagement is to be permanent".

(d) Quantum of damages

On the authorities and as held by JESURATNAM J the Respondent has establ that he is entitled to damo damages for unlawful dismissal. The question now arises is as to what in this case is the measure of damages where the Respondent had been employed for thirty years. The traditional approach of the courts to the assessment of damages for wrongful dismissal has been dealt with at some length by MUIRHEAD J in DYER v PEVERILL (1979) 2 NTR 1 (Supreme Court of the Northern Territory) and I quote hereunder from his judgment from the text book AUSTRALIAN LABOUR LAW Cases and Materials by McCALLUM, PITTARD & SMITH 2nd Ed (1992) at 4.7 p.146 and I take guidance from what he has to say although it is an Australian case:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "The measure of the plaintiff's loss in thsent case is the salary beny benefits he would have received had he been given proper notice of termination less the amount the plaintiff has earned or could reasonably have earned in alternative suitable employment.

/b>

As Viscount Kilmuir LC said in Vine v National Dock Labour Board [1957]1957] AC 488 at 500; [1956] 3 All ER 939 at 944, referring to the ordinary master and servant case:'... if the master wrongfully dismisses the servant, (5) either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract."

EAD J concluded by sayy saying that "in assessing damages, therefore, I do so on the basis that the plaintiff must recover the salary and other benefits he would have received had he been granted proper and reasonable notice".

The question now remains for determination is the quantum of damages. In doing so I like to discuss some of thof the cases which bear on the subject.

I will start with the most recent case. It is the Fiji Court of Appudgment delivered 28 November 1997 in DINERS CLUB (NZ) LNZ) LTD and PREM NARAYAN (Civ. App. No. 4/96S) in which the Court on the question of damages in unlawful dismissal stated (obiter):-

"Mr. Sweetman did not challenge hidship's findings that the reasons given by the Company coul could not justify summary dismissal, if reasons had been necessary; but he submitted that even if the dismissal had been wrongful, the damages were excessive. They were based on his Lordship's view that Mr. Narayan was entitled to 9 months' notice of termination. With respect, we think thisan unduly gene generous period even though he had held a managerial position, bearing in mind that his service with the company lasted only about 15 months. e matter had been at large, something in the order of 2-3 m2-3 months would have been more appropriate. However, in view of the fact that the parties accepted 1 month's notice as adequate in the letter of appointment, we cannot see how damages based on a longer period could be justified. The respondent received one month's salary and could not have expected more by way of damages for wrongful dismissal, if that had been established."

(emphasis added)

This case actually hit nail on the head although obiter. However, since some cases were referred to me I shall vell very briefly touch on them in so far as they are relevant to the issue before me.

In VIRENDRA PRASAD s/o Buddhu Prasad and NADI TOWNSHIP BOARD v H.M. LODHIA (Acto. 12/72 at Lautoka High Cogh Court - judgment on 28.10.77) it was held that three months' notice was the proper notice which the Plaintiff as Town Clerk should have received and that was held to be the measure of damages.

Similarly, in LEMEKI VUETAKI and FIECTRICITY AUTHORITY (Action No. 329/91L - judgment deli delivered 28.6.96) SADAL J held that 9 months' notice was proper notice and that is the measure of damages to which he is entitled. He further said that he is "entitled to all the benefits as contained in the collective agreement for this period". SADAL J further said that "the law now is that every contract of service is determinable on reasonable notice see RICHARDSON ANOR. v R. v KOEFOD (1969) 1 W.L.R. 1812 at 1816 where it is stated that the length of notice depends upon the circumstances of the case and reference is mo 3 HALS. Vol 25 p.490."

Conclusion

For the above reasons the appeal succeeds on all the three grounds. The cross-apis dismissed as devoid of m of merits. To conclude, on the authorities referred to hereabove and in view of the provisions in the agreement regarding the giving of one month's notice all that the Respondent would be entitled to is a month's notice (PREM NARAYAN supra). However, since he has served the Appellant for 30 years it would be only reasonable and proper that taking into account the length of his service a reasonable amount of damages in my view ought to be given akin to a package deal accorded to workers when made redundant. However, in this case under clause 16(f) of the Collective Agreement under the caption 'Redundancy Procedure' there is a specific provision for payment of "2 weeks salary for each completed year of service as severance pay".

I would now proceed to assess damages anew.

The C.R. assessed damages on the basis that the Appellant's salary was $1256.48 per monthh Counsel agree that CR hasR has made a 'mistake' there because the evidence before him was something different. The correct figures for salary are as stated in exhibit N, which, inter alia, states as follows:

$ GROSS EARNINGS 1.10 31.12.87 2223span>

Basic - 55.58

PAYE 34% - 756.08

FNPF - 155.61 ;&nbssp; &nsp; 967; 967.27

NETT SALARY &nbssp; & bsp;.4256spa

1988

GRO18.98

Basic - 230.45

PAYE 34% - 3134.45

FNPF - 645.26 &n4sp; 1610.pan/s/p><< clas class=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">

NETT SALARY &nbssp; 5208.8an>p clas class=MsoN=MsoNormal smal style="margin-top: 1; margin-bottom: 1">

ass=Mmal s"margp: 1;in-bottomottom: 1">: 1"> As can be seen the nett figure of .48 is for 3 months only which is arrived at after deducting $155.61 for F.N.P.F. Now sincesince the Respondent was dismissed towards the end of 1987, I would for convenience take the starting salary for 1988 which is shown as $9218.98 per year for our purposes and after normal deductions would receive the nett salary of $5208.82 which included deduction of $645.26 for FNPF (employee's contribution). So to get the correct nett annual figure the FNPF sum of $645.26 should be added to $5208.82 which comes to $5854.08 (nett) per year.

In the light of the authorities referred to hereabove and for the above reasons damages to which the Respondent is entitled to are as follows:

(a) Under clause 4(b) of the agreement a month's notice would be the normal rement either by the employeeloyee or the employer. The Respondent's monthly salary (nett) was $488.00 (based on yearly salary of $5854.08) and this is the amount he would be entitled to.

(b) In this case since the Respondad worked for 30 years for the Appellant and I consider thar that for his long service he should be entitled to two weeks' wages (as damages) for each year of service. In this case it comes to 60 weeks (or 15 months) I would calculate the amount using the salary of $5854.08 nett per year as the basis. The amount calculated thus comes to $7320.00.

(d) He will also be entitled to "Long Service Leave" under clause 18(f) of the Agreement which provides for, in the case of the Respondent, 35 working days for 25 years of continuous service. The amount comes to $610.00.

(e) The Respondent is further entitled to interest, which he has claimed, on the the amounts mentioned in (a) to (d) above at the rate of 10% per annum from 3 September 1987 (date of dismissal) to date of this judgment as he has been kept out of the money. The figure for this comes to $11580.00.

In summary the Respondent is entitled to damages and interest in the sum of $22438eing made up as follows:

(a) One month's notice 488.00

<1"> (b) For 30 yearsvice - 2 weeks' salary for each year of service &nbsp &nbssp;&nnbp; 7bsp;7320.00

(c) Retit Benefit 2440.00p class=MsoNoMsoNormal style="margin-left: 36.0pt; mar; margin-top: 1; margin-bottom: 1">

(d) Long Service Leave &nbssp;&nnbsp;&nsp; &&sp;& &n10.00

(e) Interest ; &spsp;1b580.00

>

1"> $22438.00

: 1"> There will therefore be judgment for the Reent against the Appellant in the sum of $22438.00 in substiubstitution for the amount assessed by the Chief Registrar which is set aside provided that if any payments in regard to any of the items (a) to (d) have been made they are to be adjusted accordingly and it will be for the parties then to calculate and adjust the judgment amount. I say this because there is indication that certain payments have been made.

The Appeal therefore succeeds with each party to bear his own costs.

D. Pathik
Judge

At Suva
29 May 1998

Hba0004aj.96s