Issue No. 1. Was the plaintiff an employee of the
defendant?
Generally, the defendant was the employer of the plaintiff. He first started
work with Laho Motors then Deou Motors. The
defendant counsel advances that
Deou Motors was a different company to Laho Motors. On this advancement, the
change of
name is not of great significant as the plaintiff continued to
work in the same work place and with work duties and responsibilities
performed there. Even though the name was change the subject remains the
same. Under s. 54 (d) of the Employment Act he will be treated as continues
employment. The various positions he occupied are generally not disputed. In
his last
position as Assistant Manager and Personal Manager he was
responsible to look after the Deou Motors complex, and Mr. Ouchida
was the
General Manager.
I find the plaintiff was an employee o defendant for
eleven years until he walked off his jhis job.
Issue No.2: Was the plaintiff demoted?
There is no dispute that the plaintiff was demoted from
Personal/Assistant Manager to a lower position and was paid salary of
VT80,000 per month and again demoted to Sales Assistant and was paid
VT50,000 per month.
The situation when the plaintiff was sick, and he
claimed that his sickness was due to him performrforming other additional
works,
such as towing truck or vehicle back to the garage. Mr. Ouchida agreed that
the plaintiff goes out to tow vehicle
back however, he does not do it alone
but with a driver sent with him. I accept that the plaintiff is also
assisted in
heavy work in towing vehicle back to the garage. On the
difficulties on towing of vehicles, Mr. Orchida did not receive any
complaint from the plaintiff over such work (P. 3). Neither, Mr. Ouchida was
not given any medical certificate of the
cause of his sickness relating to
such duties, neither the plaintiff did not furnish any medical report from
the doctor
to say that such sickness resulted from lifting up of vehicles
for towing and over work.
In his second operation in August 1he doctor gave
him 30 days sick leave and he took that leave. Even medical certificatficates
referred too, prior to the August 1999 operation made no mention to sickness
relating to lifting of heavy things. After
the last operation the plaintiff
requested Mr. Ouchida to grant him further leave from the 6th
September 1999 to 1st October 1999 without pay, which was
granted. Even prior to the sick leaves and operations, there was an incident
occurred
in 1998 where Mr. Ouchida was not happy about, in that he was
allowed to have 3 days off from the 17th of September 1998 to the
20th, instead he started on 26th September 1998, which
was not approved. Due to this incident, Mr. Ouchida told him: - to vacate
the house; the allocated
vehicle will only be used during official hours; to
organize and call meetings for departmental head; to control telephone
calls; to control electricity bill; control usage of oil and fuel; and
issuing of quotation with assistance of Narayan,
Karia, Josepho and
Christophe.
By Mr.ida’s letter of the 26th September
1998 he warned the plaintiff to performrform his duties effectively. He also made
directions to the plaintiff
to recover money that customers owes to the
defendant for debts to Deou Motors, for spare parts, and spraying bills.
Some of those customers the plaintiff allowed them to pay later, as the
collection of bills was under the responsibility of
the plaintiff. The
outstanding as at 31st May 1999 was about VT11,000,000 Million
(P. 17 defendant’s evidence). I accept from the plaintiff evidence that not
only
him gave credits to customers but also Mr. Ouchida, Shui Brand, Ekule
K, Christophe C. and the plaintiff himself. However,
by letter of 11th
June 1999 the plaintiff was directed by Mr. Ouchida to collect all unpaid
bills. Not only that, but he further directed
that if Laurent or Abin N. or
Arnold allowed credit to any customer and not paid, each one will be
responsible to repay
those credits they allowed to customers if not paid.
The letter also refers and confirms such directions. So not only the
plaintiff was responsible, but the others too who gave credits to other
customers. I therefore, accept that the plaintiff
will also be responsible
to collect what he authorized on credit to customers. If not than salary
deduction can be made
to his salaries and also apply to the others.
On the 29th June 1999, after the plaintiff
comack from the hospital had a meeting with Mr. Ouchida, howevhowever by
that time, the
28th of June 1999, Mrs. Ouchida was already
supervising the Deu Motors complex, after being assigned to do that work in
March
1999 by Mr. Ouchida as, replacement for the Plaintiff. This was a
demotion to the plaintiff. On this demotion the plaintiff
claimed that the
demotion to a lower post than assistant Manager with salary of vt50.000 per
month constituted a serious
breach of terms and conditions of the plaintiff
employment contract.
Issue No. 3: Did
the defe terminate the plaintiff?
Due to these events, the plaintiff sought to have
one-month leave from 6th September 1999 without pay and was to
resume duty by the 1st October 1999. The plaintiff returned to
work on the 4th of October 1999 and told Mr. Ouchida to terminate
him. The purpose of telling Mr. Ouchida to terminate the plaintiff was due
to him taking up a new position, not with the defendant. Even Mr. Ouchida’s
confirmed this in his evidence. I accept
that by 4th of October,
the reason why the plaintiff demanded the defendant to terminate him was for
him to take up a new job.
Mr. Ouchida did not agree to terminate him and informed
him to continue to work with the defendant. The reasons being that the
plaintiff was yet to collect the outstanding bills, purchase made locally
and overseas and even theft by staff. The plaintiff
did not take up his job
and by February 2000 he started work with Asco Motors earning VT70,000 per
month. I find that
the plaintiff walked out from his job with the defendant.
He was never terminated or told by the defendant to leave his job.
Issue No. 4: Did the defendant commit a serious breach
of the contract.
The plaintiff the defendant committed a serious
breach of term of employment by demoting him. On thOn this statement of claim,
there were no written terms of condition of employment. The position of
Personal/Assistant Manager was a promotional
post. And Mr. Ouchida accorded
him the salary of VT80,000, responsibility allowance of VT70,000, a free
rent house and
use of vehicle.
The defendant agreed that he made the plaintiff to such
post as he had confidence in him to perform that duty. Prior to that,
the
defendant did not receive any complaint on heavy duties work from the
plaintiff as to his sickness, however he was
aware of medical certificates,
but at no time the plaintiff ever produce a doctor’s report as to the nature
of his illness
apart from the medical certificates. The medical certificates
represent illness from 4th May 1998 to the 12th August
1999, which was about 15 months.
By the 11th June 1999 Ouchida wrote to the
plff to collect all unpaid bills, as one of his additional
al
responsibilities as an
Assistant Manager was to collect unpaid bills. The
letter of instruction of the 11th June 1999 was instruction to
the plaintiff to do his job and to collect unpaid bills and gave him 3
months to collect.
In addition to this, he also stopped the plaintiff not to
make any more quotation, and he stopped.
By letter of 1st
September 1999 Mr. Ouchida wrote to him complainhat he has not
collecollected the outstanding money. In the plaintiff’s
evidence he manage to
collect over VT40,000, but was not quite well aware what was the total
amount outstanding. Due
to the plaintiff not collecting money for the
outstanding bills he was demoted to Sales Assistant with salary of VT50,000
per month. Mr. Ouchida, as the General Manager and owner can exercise that
power of demotion in the interest of the defendant.
Plaintiff counsel referred to the following lader
the Employment Act {Cap 160} and cases in supportpport of the plaintiff case as
follows: -
Section 53 (1) and (2) state/span>
“(1) &nbf an yeploll ill treatsreats an employee or
commits some other serious breach of the terms and conditions of the
contract of employment, the employee may terminate the contract foth
nd she entitentitled tled to hiso his full remuneration
for the appropriate period of
notice in accordance with section 49 without prejudice to any claim he may
have for damages
for breach of contract.
(2) & p; As empl employee syee shall be deemed to have waived
his right under subsection (1) if he does not claim it
within a reasonable
time after he has become aware of his being led to.”
Section 49 states:-
>
“(1) A act ol empntymer afounan unan unspecified
period of time shall terminate on the expiry of notice given by either
party
tootheris inon toinate the contract.
&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp;
Notic beayerbaverbal or written, and, subject to subsection (3), may
be given at any time.
&GB"> nbsp;
(3) p; Tse length of h of h of notice to be given under
subsection (1) -
(a) &nnbsp;; Wspre tere the empe employee has been in continontinuous employment with the
same employer for not less
than 3 years shall be not less than 3 months;
(b) &nbs; &nbbsp; p;&nsp; &nbp; &&nbp;;
p In ever every other case –
lang="EN-GB"> 
p clap class="MsoNormal"rmal" styl style="tee="text-alxt-align: justify; text-indent: -36.0pt; margin-left: 144.0pt; margin-top:
1; margin-bottom: 1">
(i) &nbbsp; &nbbsp; &nbp; &nbp;
s
lass="Mss="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom:
1">
(ii) nbsp; p;&nbbp; &nbp; &nbssp;
”
an>
Section 20 states: -
“No proceedings may be instituted by an employee for
the rec of remuneration after the the expiry of 1 year from the end of
the
period to which the remuneration relates.”
Further secti (2) states: -
class="MsoNoMsoNormal" style="text-align: justify; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“An employee shall not be entitled to severance
allowance if he is dismissed for serious misconduct as provided in Section
50.”
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Further section 51 states: -
“During the period of notice an emplshall be
entitled to a reasonable period of time off off work without loss or
reduction of remuneration in order to be able to seek other employment.”
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Hakwa submitted the following laws in addition to what
Kilu submitted.
Section 50 st -
“(1) p; Incase oase of a se a serious misconduct by an
employee it shall be lawful for the employer to dismiss the employee
without
notice and without compensation in lieu of notice.
(2) ;&nbssp; Nsp; No the the following acts shall ball be deemed
to constitute misconduct by an employee -
<
clap class="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1">
(a) style="font:7.0pt "Times New Roman"">   &nbssp;&nnbp; &nsp; &nbbp;&nnbsp;
Trade union meon membership or participation in trade union activities
outside working hours, or with the empls con durie working
s;
(b) &nnbsp;; &nsp; &nsp; &&nbp;;
/ Seeking king officeffice as, or acting in the capacity n emps’
representative;
(c) &nbbsp; &nbbsp; &nbp; &nbp;
Tking in good good faith of a complaint or taking pa any procgs ag an eer.
(3) &nbssp;&nnbsp; Dsp; Dismisssmissal for serious misconduct may take
place only in cases where the employer cannot in good
faith be expected to
take any other course.
classNormal" style="tee="text-alxt-align: justify; text-indent: -36.0pt; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(4) &nbssp; No employer shall dall dismiss an employee on
the ground of serious misconduct unless he has given the employee
an
adequate opportunity to answe charade at himany
dismissal in contraontraventivention ofon of this this subsection
shall be deemed to be
unjustified dismissal.
class="Mss="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(5) &nAn employer shall be deemedeemed to have waived
his right to dismiss an employee for serious misconduct if such action
has
beenn wit rease timer he has become aware of the
serious miscondsconduct.>”
Further Section 54 (amet) No. 8 of 1995
p class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
“(1) Subject to section 55, whnre an employee has
been in continuous employment of an employer for a period of not less
than
12 months commencing before, on or afte datcomment of
Act, and–
p>
(a)   &nbssp; ;&nspp; &nbp; &nbp; the emp oyer terminerminates his appointment; or
;
(b) ;&nbssp; &nsp; &nsp; p; &nnsp;&
sp;
than>the employee retires on or after reaching the age of 55 years; or
-GB"> 
(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
/p>
p clasoNorstylet-aliustify; margin-top: 1; marginargin-bott-bottom: 1om: 1">
>
(an style="font:7.0pt "Times New Roman""> &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;;
/span>where thre the empl employee
has been in continuous employment with the same
employer for a continuous period of ess t0 conive years, the emplresig good
faid faith; oth; or
>
(e) &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nnsp;
than>the employee ceases to be employed by reason of illness or injury and
is certified by a registered medical practitioner
to be unfit to con to
work,n>
the employer shall pay severance allowance to the
employee under section 5ion 56 of this Act.”
class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(2) &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp;
Fpan>For the purposurpose of subsection (1) –
(a) p; &nsp; &nbbsp;
class="Mss="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1" (b)   &nbssp;&nnbp; &nsp; &nbbp;&nnbsp;
…span>
langGB">
(c) & p; &nsp; &nsp; ;&nbpp; &nnsp;&
sp;
Where an yee c to be in the
employment of one employer and enters the employment of anothanother uner under
section 55
(4), his employment by the first and second employer shall be
deemed to be continuous employment;
Section 9 states:
“A contract of employment may be mn any form,
whether written or oral.”
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Cases
The following cases referred to by the plaintiff’s
counsel.
<
Persuasive.
Aucklhop Employee Union –v- Wool Work (NZ) Ltd.
1985 NZLR 327 (CA) The Court did not hnot have the benefit of the case apart
from quotation which reads: -
In our view, there is implied in a contract of
employment a term th employer will not, withoutthout reasonable cause and
proper cause, conduct themselves in a manner calculated or likely to destroy
or seriously damage the relationship of confidence
and trust between
employer and employee”.
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Authority case –
applied the same standard of the principle as submitted
In advancement by the plaintiff counsel on conditions of
employment under section 9 e Act, in actual fact therethere was no
written
contract of employment with conditions. And therefore, the contract of
employment can be placed under the provision
of Section 49 of the Employment
Act. In the plaintiff’s affidavit he requested the defendant to dismiss him
on the 4th October 1999. I do not accept this as notice under
Section 49 (3). Neither the letter of 25th October cannot amount
to a notice, but maintain his stay away from work until all other conditions
are met. Notice under
Section 49 is simply for the plaintiff to inform the
defendant either verbally or written of his intention to cease employment
with the defendant without conditions attached to it.
lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
At least the defendad informed the plaintiff to
perform, even they had meetings, and even letters were wrre written to him,
even
time frame was given to him to collect unpaid bills, that is three months.
The plaintiff counsel advances that three
months was too short a time. I do
not accept the counsel submission and finds three months was more than
enough to run
around Port Vila which is so small an area to cover within one
day or by local telephone calls to collect the unpaid bills
from customers.
No evidence from the plaintiff that he compile any report of compliance. Mr.
Ouchida, being the owner
of the company has a right to be concerned of
unpaid bills about VT11 Million not collected.
The plaintiff counsel advances on principleatural
justice not afforded to the plaintiff. On this this advanced, at least the
plaintiff was informed in their meeting to perform, even if he cannot
perform he will be placed in a lower position and
even can be dismissed. At
least he was made aware of the stand the defendant will take if he does not
perform. When Mr.
Ouchida places him in his new position as Sales Assistant
he even perform in that position. Further, an incident where 2 boys
were
using the garage’s computer, no explanation from the plaintiff to Mr.
Ouchida
Sick Leave
lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The plaintiff was entitled to 21 days sick leave wit full pay in every 12 months under Section 34 of the Empl Employment Act.
ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Section 34 states:
“Subject to subse (2), every employee who has
been in continuous emploemployment with the same employer for more than twelve
months shall be entitle to 21 working days leave on full pay on grounds of
illness.”
The sick leaves does not affect a persons right rmal
annual leave of 21 days, under section 29 of thef the Employment Act.
On the first operation the plaintiff was given 30 days off. However, the plaintiff claims that Mr. Ouchida forcedorced him to go
to work
5 days after. The wife gave evidence that Mr. Ouchida came to the house,
however she herself was not there, and
her son told them only. The son was
not called to give evidence. However, Mr. Ouchida in his evidence did not
talk to
his son, neither he forced the plaintiff to go to work, neither he
did not go to the plaintiff's house. Mr. Ouchida stated
that the plaintiff
himself came to his office and informed him that if he is okay he will start
work, and cannot recall
exactly when the plaintiff started work. On the
evidence, on this dispute of fact, I accept that Mr. Ouchida did not go to
the plaintiff's house and asked the plaintiff’s son for him. However, what
the plaintiff said in evidence, which I accept,
that he was scared that Mr.
Ouchida was to give the job away to another person and has to go to his
office to resume.
And I find that the plaintiff resume work earlier in fear
of his job will be given away. Other sick leaves were not disputed.
What Mr.
Ouchida concern is work performance was not up to expectation as Assistant
Manager and with collection of unpaid
bills.
Swearing /b>
The swg only occurred once. For swearing to be of a
serious nature amounting to creating bang bad relationship, it must occurred
continuously reaching a stage where the plaintiff could not coupe with and
to give up his work. To swear once is not
enough to amount to creating bad
relationship.
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The case Banque Indosuez Vanuatu Ltd. -v- Marie Noelle
cannot be usery time an employee choosesooses to finish work and claim
damages. This case is distinguished from the above
case. In this case the
plaintiff responsibilities were reduced including salaries and entitlement
and continued employment
with the defendant. I find that the action taken by
Mr. Ouchida was sufficient action on behalf of the defendant in ensuring
the
defendant to make profit and progresses in his business activity. Bad debts
are liabilities to the defendant. And
the plaintiff was responsible to
collect.
Unjustified Dismissal
<
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The defendant at no time terminated the plaintiff’s
employment. And as statrlier that one of the reasoreasons the plaintiff
told
the defendant to terminate him is for him to get new employment and simply
walked off from his employment, and took
up new employment. Further, the
defendant, up and until today still maintain that he did not terminate the
plaintiff.
I find no evidence of unjustified dismissal. Furthermore, the
plaintiff was never dismissed. Therefore, this claim is dismiss.
Severance Pay
1">
The plaintiff has worked continuously with the defendant
for over 11 and his employment with thth the plaintiff remain the
same
pursuant to Section 54 (1) (d). His walking off from his employment was over
frustration over his reduction of position
affecting his salary. The letter
of the 25th October 1999, amount to an election of termination of
employment by the plaintiff. I find that the plaintiff resignation falls
under section 54 (1) (d) requirements. And that is, he resigned on good
faith. The good faith can only be judge by his
letter of demand of the 25th
of October 1999, and that is to reinstate him on salary to Vt150,000 as paid
to him when he was the Personal/Assistant
Manager. This cannot be a claim on
bad faith as this was the subject matter he continued to maintain all along
and under
s. 50 (2) (c) the making of the complaint against the defendant
was in good faith and should not be taken against him. Further,
action of
the plaintiff did not fall within the requirement of s. 50 to be treated as
of serious misconduct. For condition
2 & 3 would only arise when he was to
resume duty with the defendant. I find that he is entitling to severance pay
and grants him VT825,000 as pleaded as severance allowance for resigning in
good faith.
Notice
Notice under Section 49 is a proper notice to be
delivered to the employerood faith in informing the the employer of his
employment to be ended. And any notices to end the contract to be given to
either party not less then 3 months under section
49 (3), as the plaintiff
was in employment with the defendant for over 3 years period already.
The requirement of s. 49 is for the plaintiff must be in
employment with the defendant and to his notice, and under s. 5 s.
51 for
the Employer to allow him to look for a job in the period of notice. I find
that the plaintiff did not give notice
pursuant to s. 49. Therefore, the
claim for three months pay in lieu of notice must fail and dismiss.
General Damages
Sleepless night, worry and anxiety, risk of he depression on reflection
ion
on defendant’s actions, pain, suffering.
No evidence of the actual cause of the plaintiff illness. No medical report from a registered doctor stating the caue cause of his
illness
and remains not proven to relate to heavy work.
The plaintiff had string lines of commitment to meet such
as; house rents arrears, loan repayment with NBV, outstanding loan
for Tico
vehicle with the defendant, small business store has stop operating, school
fees, foods and clothing. He claimed
that the demotion has caused him
sleepless nights, worry and anxiety, depression pain and sufferings and risk
to health.
He was still paid for duties he performed. With such earnings at
least he could still meet some of his personal commitment.
As to risk of
health, at least the plaintiff had operation twice and in those operation no
one knows the causes of the
sickness. No medical evidence to say that the
demotion caused him more health problem. I find that the action of Mr.
Ouchida on behalf of the defendant was proper. I find that the defendant
cannot be responsible for any damages, and all these
claims are dismissed.
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
________________________________________________________________________
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The defendant alleges against the plaintiff as follows: -
1.   &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbs ny many occasoccasions the plaintiff fail to keep proper records of
transactions on repair works.
lass="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
span lang="EN-GB">2. nbsp; p; ; &nbbp; &nbp; &nbs; p;
He fail fails to properly account for all records of payment.
: 1">
3.   &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbs otd not propeproperly comply with accounting procedure.
&GB">
4. ;&nbssp;&nbs;&nbs; &nbp; & &nbssp; &nbp; &nbs;
I8 199invoicedoiced Joe Johnson for the amount of VT150,000, but only
account T120,while,000 was unacco for.an>
5. &bsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp;
st to
26th September 1998.
class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
6.   &nbssp; ;&nspp; &nbp; &nbp; ;&nbpp;
/ Ppan>Plaintiff allo allows customers to pay bills by instalment.
p>
PART B
Plaf allows customer to pay bills by instalment.
p>
ass="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
1. &bsp; ;&nbpp; &&nsp;; &nbp; &nbp; &&nbp;;
Fail toil to keep proper records and accounting of all transaction.
>
2. nbsp; p;&nbbp; &nbp; &nbssp; &nbssp;
Plan>Plaintiff fails to properly assess the customers’ means over
instalment payment.
3. &nsp; & &nbbsp; &nbp; &nbp; &nbbp;&nnbsp;
Fail to recoveecover money from those people he allowed on instalment
payment.
lass=ormalle="text-align: justify; text-t: -3; mareft: 72.0 72.0pt; mpt; marginargin-top:-top: 1; m 1; marginargin-bottom: 1">
4. &nbs; p;&nssp; p; &nbp;
p;
Fail operroperly record the debtors to the company.
 
5. style="font:7.0pt "Times New Roman"">   &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; &nbbsp;
Plan>Plaintiff fails to resume work on 1st October 1999.
6. &nsp; &nbbsp; &nbbsp; &nbp;
p;
No noticp by plaintiff to terminate his employment.
span>
7. &nsp; & &nbbsp; &nbp; &nbp; &nbbp;&nnbsp;
No payment to t to defendant by plaintiff in lieu of notice.
 
Part A
lass="MsoBoMsoBodyTextIndent3" style="text-indent: 0cm; margin-left: 0cm; margin-top: 1; margin-bottom: 1">
evidence to support such alch allegation as stated in the counter claim in
paragraph 1 to 3. Calling a witness to give evidence
is not enough. What the
court requires to rely on is reliable evidence in proving a claim to the
satisfaction of the
court. Even though there was some evidence to explain
claims 1 to 3, it was so general and cannot be of any help very much
in
proving that the plaintiff did not actually performed such duties.
Therefore, these claims are dismissed.
Likewise, as to paragraph 4 of thof the counter claim no evidence to actually
prove this allegation. Therefore, this claim
is dismissed.
As to paragraph 5 on unauthorized leave, at least the
plaintiff was penalized already by icting some of his entitlemitlement.
Further, this occurred in September 1998 and at least the defendant had a
good long term to deal with the plaintiff.
Further, it is far too late to
raise it at this time. Furthermore, the action taken by letter of 26th
September 1998 is already a punishment and this claim is dismissed.
Part B
">
No evidence tve that the plaintiff failed to keep
proper record of accounting transaction. What that the court requires is evidence
of fact to say that the plaintiff did not keep proper record of accounting.
Evidence in general is not sufficient to
rely upon, and I dismiss claim 1.
In assessment of customer means of repayment in
instalment, is discretionary authority allow the plaintiff, Naryan and and
Arnold and they each are responsible for what they have allowed on credits
to customers. If the plaintiff have exercise
that power then that was
proper. And if he did not than it was open to the defendant to take action
on him immediately.
If not, than the exercise of his discretion was proper.
Therefore, claim No. 2 is dismissed.
Claim No. 3 – I accept that the plaintiff fail to fully
recover money he allowed on credit to customers. Nevertheless, the plaintiff
was already penalized administratively by way of demotion of his employment.
And cannot be penalized twice. And the legal
avenue was open to the
defendant to use to recover its money. Therefore, claim No. 3 is dismissed.
Claim No. 4 – No evidence as to what are the proper
records and which proper records that he has failed to perform. I therefore
dismiss claim No. 4.
Claim No. 5, 6 and 7 – The Court accept that he did not
resume on 1st October 1999 and left work on his own. He neither
gave notice in terminating his employment with the defendant and resign in
good faith. Pursuant to Section 49 no compensation is required in
termination of employment. However, a situation may
arise where an employee
continue to receive pay after not properly terminating his employment. No
evidence to say that
he continued to be paid for three months after walking
off his employment. I therefore dismiss claim No. 5, 6 and 7.
Dated rt Vila, this 11th day of
February 2002.
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R. MARUM J MBE
