Counsel: r. Robert Sugden for
the Plaintiff
Mr. George Boar for the
Defendants
Date: 10 April 2001
JUDGMENT
FACTUAL BACKGROUND
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2 & p; &nsp; &nsp; On 16 September 19er 1998, the Plaintiff obtained judgment against the First and
Second
Defendants in Civil Case No.17 of 1995. In that case, the Court
held that the Plff haer belidly suspenuspended oded or disr
dismissed from
her employment as a Principal in the Vanuatu Teaching Service. Mr. Justice
Tompkins held, in effect,
that the Plaintiff was still employed as a
Principal in the Teaching Service and ordered that all of her unpaid
salary
up to the date of judgment, less the salary she had managed to earn
during that time at Vila City College, be paid to her.
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3 &nnbsp; Since
e
the judgmentgment the defendants apparently, have continued not to pay the
plaintiff’s salaryrovid
withincipsitioa sch/span
4 ;&nbssp;&nnbsp;&bsp; &bsp; The
fendantndants nows now concede and accept that the plaintiff should have been paid
the
dence between her salary as a Principal (of Vatu 98,939) and what
she coul could eard earn in other employment. The plaintiff
has continued working at
Vila City College, until 15/06/1999 when she resigned from there and did
not work again
until 01/04/2000.
5 &nbbsp; &nsp; &nbhp; T
parties agreeagree that, for the period 15/06/99 until 15/09/99 the plaintiff
should receive
VT349,551.
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6 ;&nbssp; &bsp; The
a parties are alre also agreed that each month of the period 1/4/00 until the
present the plaintiff
should receive the difference between her monthly
salary asry as a Principal and her salary at Vanuatu Rural Training Centre
(V.R.T.C.)
(VT60,000 + VT20,000 for housing allowance) = VT98,839 – VT80,000 =
18,839. It is clear then, that as
at 28/2/01 the number of months is 11.
It follows and then agreed between the parties that the sum of this period
is VT18,839 x 11 = VT207,229.
7 ;&nbssp; &nbbsp; bsp; On 15
June 199e 1999, the plaintiff resigned from Vila City College. She was then
unemployed
until 1/4/00. The p 15/6ntil 0 repts 6˝
(half) months. ths. This This perioperiod hasd has been the subject of dispute between
the
parties.
8 &nbbsp; &bsp;&nbse
def defendants say that the plaintiff should receive nothing for the time as
she had
resigned from her position and therefore she had failed to mte hes.
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9 &nnbsp;;&nspp;&nsp; &nsp; The
tifinaccepts tpts that she should have kept her employment at Vila City
College
in order to mitigate her loss brought about by the defend
ailurpay her and that that because she chose to give up that inct income
some she
cannot require the defendants to make good what she have earned. However,
the plaintiff says that, even
if she had kept that employment she would
still have suffered a loss of VT38,839 per month as she could only earn
VT60,000 per month – Vt38,839 less then her salary. Thus, the plaintiff
says, she should receive VT38,839 per month for
this time – a total of 6˝
x VT38,839 = VT252,454.
EVIDENCE AND
FINDINGS
10 &nbssp;&nnbsp; bsp; The
plfintive gave oral oral evidence in addition to her sworn affidavit filed on
14 Febr2000.
The plaintiff gave evidence to the effect that on 1st
April 2000 s000 she started her current employment with the Vanuatu Rural
Training Centre on a three year contract
at a salary of VT.60,000 per
month plus housing allowance of VT20,000 per month. The evidence
establishes also that
the defendants offered the plaintiff a teaching post
at Lini Memorial College in Pentecost as an English and Social Science
Teacher. This was done by a letter from the Hon. Jacques Sese, Minister
for Education dated 30 May 2000, directing
the plaintiff to make necessary
arrangement to the said school, without any further delay. (Exh.D1)
11 & p; She
stated aled also that her claim is now understood by the defendants to include
a claim for
houallow She t anded “Annexure A” part of
the Teaching Service Staff Ruff Rules tles that ihat includnclude the provision
relevant to
housing allowance for teachers.
12 p; &nsp;&nThe
plaintiff by leby letter of 22 June 2000 appealed against the ministerial
decision of 30 May
2000 for three (3) rs:
13 &nbssp; &nsp;&nbp; Firstly
becsuse she is e is currently employed by the Vanuatu Rural Development
Training Association
and she needed to give three (3) months noto he mployer. Sly, she said her appointment ment as a as a classclass teac teacher
at the
said school is still contradictory to the judgment of the Supreme Court
issue by Justice Tompkins on the 16
September 1998. Finally, because she
was deprived of her profession and salaries by the defendants since
October
1998 and then was unemployed since June 1999 to 1 March 2000, she
did not have the finance for such an abrupt posting at
such a inconvenient
time. She also said that she will willingly take up any posting anytime in
future if-
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1 (i) p; &nsp; &nbbsp; &nbbsp;
<span>Her withheld salaries mmediately released; and
(ii) ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp;
<the denendants via the Ministry of tion consider fully
points 1 and 2 of this letter in respect to the next postiposting.
14 &nbssp; She gave gave
evid evidence that she did not receive a response of her appeal from the
defendants.
There is no evidence from the defendants to the contrary.
Tis noon toelieve the plaintlaintiff oiff on than that point.
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15 &nbbsp; She
stated thad that prior to the decision of the Hon. Justice Tompkins in
September 1998, she had
been living ientedises rt-Vi a
monthly rental of VT33,000 and had received no payo paymentsments of a of any sony sort frrt from
the defendants. She shared the rents with her partner. She paid VT18,000
for the rent and her partner paid VT15,000.
She produced all
receipts/invoices of rent she paid from January 1998 to February 2001.
(Exh.P2)
16 &nbbsp; The
he
defendantndants file a sworn affidavit dated 26 February 2001, of Louis Pakoa,
Manager in
charge of the Government salaries within the Department of
Finance. This affidavit shows the personal account history file
of the
plaintiff covering the last two (2) periods as a teacher from 1993 to 1994
marked “CPI”. It is also said in
the affidavit that as a teacher in
Teaching Service with Vanuatu Government, the plaintiff’s TPF No. is
2-60079.
She ceased to receive her salary on 13 September 1994. The
Finance record shows that she received a basic forth night salary
of Vatu
39,919 plus Vatu 2,125 being for subsistence allowance. Mr. Pakoa’s
affidavit further shows that the plaintiff
was not paid any housing
allowance nor was her salary deducted towards payment of housing rent.
17 &nbssp; &nsp; I find
as aer of f of fact that the affidavit of Pakoa shows the financial record
of forth-night
salary of the plaintiff as a class teacher butas a Pral of the l which is in issue in the prhe proceedoceedings.ings. The The
evidence
of the plaintiff is then preferred.
18 I find
al also that the Teaching Service Staff Regulation which include relevant
provisions for housing
allowance for the Teachers No.33 of 1994 became
effective6 Oct1994 the plaintiff was wrongly ngly dismidismissed ssed by
the defendants. It is also common ground that as from the judgment of the
Hon. Justice Tompkins of 1998, the plaintiff
had never been validly
suspended or dismissed from her employment as a Principal in the Vanuatu
Teaching Service.
The Supreme Court, in effect, held that the plaintiff
was still employed as a Principal in the Teaching Service. It is also
the
case that the Court ordered that all of the plaintiff’s unpaid salary up
to the date of judgment, less the salary
she had managed to earn during
that time at Vila City College, be paid to her. The evidence shows also as
an established
fact that the plaintiff paid housing rents exceeding
VT15,000 per month prior to the judgment of the Supreme Court in September
1998.
SUBMISSIONS OF THE PARTIES
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Plaintiff
19 p; Tsp; Taintiff
accepts thas that she should have kept her employment at Vila City College in
order to
mitigate her loss broubout e deft’s fe to pay
her and that that because she chose to give up that inat income come she cshe
cannot require
the defendant to make good what she could have earned. However, even if
she had kept that employment
she would still have suffered a loss of VT38,
839 per month as she could only earn VT60, 00 per month for this time.
a) &nbs; &nbbsp;&
p;
Unpaid Salary
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20 &nnbsp;;&nspp; Tsp; The
e
Plaintiff’s Counsel submitted that calculation of the compensation or
unpaid salary
of the plaintiff should be for theriodpan><