Sepa v Metamele [1998] VUSC 85; Civil Case 012 of 1997 (5 November 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 12 of 1997

BETW>BETWEEN:

LYDIA SEPA and ALICE ESIKA
Plaintiffs

AND:

BRIAN METAMELEFirst Defendant

AND:

SANTO EAST SCHOOL
Second Defendant

Coram: Mr. Justice Oliver SAKSAK.

Counsel: Mr. Saling Stephens of Counsel for the Plaintiffs.
The First Defendant appeared in person unrepresented.
The Second Defendant appeaappeared through the First Defendant unrepresented.

Date of Hearing: 25 August 1998.

JUDGMENT GIVING REASONS FOR DECISION

This Jud provides reasons fons for the decision of this Court delivered on 28^th August 1998.

The Plaintiffs brought proceedings by way of Originating summons filed on 29^th October 1997 seeking the following declarations that:-

1. The Plaintiffs are not employees of the Defendant within the meaning of the Employment Act.
2. The Defendant’s actions in terminating the Plaintiffs is ultra vires the Act.
3. In the alternative that if the Plaintiffs were held to be employees that they were not able to be dismissed other than by giving reasonable notice.
4. The Defendants were not authorized to dismiss the Plaintiffs.
5. The Santo East Kindergarten School Committee is the sole body authorized to dismiss the Plaintiffs and that they have not done so.
6. The Plaintiffs are entitled to remain in their positions as teachers until dismissed in accordance with the law.
7. The Defendants be ordered to pay costs.

On Friday 28^th August 1998, I decided that Judgment would be in favour of the Defendants. And I ordered that there be no costs, that any orders freezing the Accounts of Santo East School Kindergarten be vacated, and that the Defendants pay three months notice and severance benefits to the two Plaintiffs within 14 days.

Evidence before the Court was by way of affidavits. In addition, both Plaintiffs gave oral evidence upon which they were cross-examined. The Defendants produced two witnesses in support of their defence contained in a document dated 8^th June 1998 filed by the First Defendant.

The Issues

1. Whether or not the Plaintiffs were employees of the Santo East School ?

The Santo East School is a Government-owned school. In its structure, (Annex B) it falls directly under the responsibility of the Education Department. It has a Headmaster and teachers. It has a School Council which makes decisions which are executed by the School Council Executive. It has a Parents and Teachers Association (PTA) who are responsible for the salaries of the teachers of the Santo East Kindergarten School and the Handyman.

The evidence of Supt. Paul Willie Reuben as a former Chairman of the Santo East School confirms that the Santo East School Kindergarten has always been since its establishment in or about 1991, part of the Santo East School. As such the teachers are responsible to the PTA who are responsible to the School Council of the Santo East School. Both Plaintiffs in their evidence told the Court that this was the position until on or about 26 February 1997 when a new committee was elected to run the Kindergarten School.

Evidence from the Plaintiffs show that they used to collect fees from the parents which moneys were handed over to the Headmaster who banked the money at a bank. On paydays the First Defendant would sign bank withdrawal slips together with Mrs. Esika who would take the slips to the Bank and withdraw their salaries. This was the practice all the time. The Headmaster of the Santo East School in his evidence told the Court that all payments of salaries were entered in a record book which unfortunately he was not able to show to the Court but which the Court was prepared to accept as true.

It was submitted by Mr. Stephens that because the Santo East School did not issue receipts to the Plaintiffs in respect of their salaries, they could not be seen as an employer within the meaning of the Employment Act [CAP. 160].

I do not accept that submission. Firstly because Section 17of the Employment Act does not make it mandatory for an employer to issue receipts. Secondly the terms "employer" and "employee" are not defined in the Act. The only assistance I can have is from the Labour (Work Permit) Act [CAP. 187] where the term "employment" is defined as:

"the performance by an employee of a contract of service, whether written or not, and whether paid or unpaid and the words "employ", "employed", "employee" and "employer" shall be construed accordingly".

There is no evidence before the Court as to how and who appointed the Plaintiffs in the first place. There was no evidence as to their conditions of service but from what was said in evidence I am prepared to draw the inference that it is the School Council that appointed the two Plaintiffs as teachers and that they were serving as such under a contract of service. For these reasons I find that the Plaintiffs were employed by the Santo East School as their employer, and I so rule.

2. Were the Defendant’s actions in terminating the Plaintiffs Ultra Vires ?

Having found and held that the Santo East School was the employer of the Plaintiffs, it follows that in law they are and were entitled to terminate the Plaintiffs in the manner that they did.

In evidence was the letter of termination dated 11^th June 1997 to Mrs. Lydia Sepa and Mrs. Alice Esika.

It reads as follows:

"Dear Sir,

Re: Termination from Teaching.

Santo East School Council sat yesterday 10^th June 1997 and took a final decision for the above reference.

Financial misused as reported by an auditor and concern teachers disobedience to School Council’s decisions were being the reasons of the termination.

Your termination commence on Monday 16^th June 1997. Proper submission of all Kindy’s documents on Friday 13^th June 1997 at 200 p.m. to the Deputy Headmistress will guarantee your three months notice and severance benefits. (Emphasis, mine).

Any misuse found will be automatically deducted from the above benefits. Payments will be made after the re-checking period. Council wishes to thank you for your services at Santo East School.

Yours Sincerely,

Signed: Metamele Brian

Chairman – School Council."

The terms of employment of the Plaintiffs were not specified but it is clear from evidence that each Plaintiff was employed for more than three years. In that case pursuant to Section 49(3) (a) of the Employment Act the period of notice required to be served is three months. However Section 49 (4) says:

"Notice of termination need not be given of the employer pays the employee the full remuneration for the appropriate period of notice in subsection (3)." (emphasis, mine).

Here it is clear that the Defendants were prepared to pay three months notice and severance benefits. That is more than a generous offer in view of the fact that they even alleged misconduct. The only reason why the Defendants could not fulfill their legal obligation was that the Plaintiffs had lodged their claims with their solicitor and the Defendants very rightly deferred payment pending the Court’s decision. They were not obliged at all to make that offer of three months notice and severance benefits if Section 50 of the Employment Act were to be applied strictly to their case. But I suppose that as a Christian country with a Christian people the Defendants felt a moral obligation to pay the Plaintiff’s three months notice plus severance allowance. After all Mrs. Esika was employed for 6 years to 1997 and Mrs. Sepa was employed for 4 years and 4 months to June 1997 and each have families to support. In the circumstances I rule that the Defendants terminated the Plaintiffs lawfully and as such I ordered that the Defendants pay the Plaintiff’s three months notice plus severance allowances in fulfilment of the provisions of Section 49 (3) (a) and (4) of the Employment Act.

&nb bs.&nnbs; &nbs; Whether or notPlaintiffs affs as Employees could be dismissed other than by giving reasonable notice?

Thiue han ans by the answers in relation to Issue No. 2 abov above. p> &nb bs.&nnbs; &nbs; Whether or notDefendants wnts were authorized to dismiss the Plaintiffs?

This has been answen theers gin ren to . 1 and 2and 2. > ; 5.& 5. &bsp; &nbspther or no the Santo anto East Kindergarten Committee the authorized body to dismiss the Plaintiffs?

th Februarbruary 199y 1997. Fr7. From evidence by the Defendants I am prepared to accept that that Committee was not legally or lawfully formed and it is non-existent.

6. &nbss;&nbbs;&nWhether or noor not the Plaintiffs are entitled to remain in their positions?

The answer to this issueo. Thintifve belidly terminated and all they are entitled to under laer law is w is theirtheir thre three mone months notice and severance allowances.

7. &nbss;&nbhethenoor not the the Plaintiffs should be awarded costs?

Having lost, they cannot be awarded costs. Indeed they should pay the Defendant&s cost I cer that this is a case case wher where eace each party should meet their own costs.

Dated at Port Vila, this 5th day of November, 1998.

BY THE COURT

Oliver A. SAKSAK
Judge