National Bank of Vanuatu v Cullwick (Minority Judgment) [2002] VUCA 40; CA 11-02 (1 November 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

APPELLATE JURISDICTION
CIVIL APPEAL CASE No.11 of 2002
BETWEEN:

NATIONAL BANK OF VANUATU

Appellant
AND:

LEIASMANU CULLWICK

Respondent

Coram: Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Roger Coventry

Counsel: Mr. Mark Hurley for the Appellant
Mr. Hillary Toa for the Respondent

Hearing date: 31^st October 2002
Judgment date: 1^st November 2002

JUDGMENT

I have read the judgment of their Lordships and wish to comment only in relation to Section 20 of the Employment Act [CAP.160]. The provision has been raised in two occasions brought before me in 2001. Firstly in the case of Alick Saga v. Richard Lo (LCM) Civil Case No.6 of 2001 (August) and secondly in the case of Joelly Daniel v. the Government and Commissioner of Police – Civil Case No.25 of 1998 (September). In both cases the relationship is of master and servant but having founded on contracts existing between them, I held that Section 3 of the Limitations Act applied where the period allowed by Section 20 of the Employment Act had lapsed.

That was done in the exercise of a discretion under Section 20 of the Act but only after having heard the facts and the evidence and deciding the provision in that light. The exercise of that discretion is therefore a matter of fact. I therefore maintain those views here.

The term “remuneration” used in Section 20 of the Act was not an issue for determination before me in the two cases. On this point I agree with their Lordships that “remuneration” does not include severance payment.

I would therefore dismiss the appeal.

DATED at PORT-VILA, this 1st DAY of NOVEMBER 2002

OLIVER A. SAKSAK J