Daniel v Nguyen Huu Hong [2004] VUSC 40; Civil Case 119 of 2004 (21 September 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 119 of 2004

BETWEEN:

JEFFREY DANIEL
Claimant

AND:

NGUYEN HUU HONG
First Defendant

AND:

NGUYEN HUI
Second Defendant

Coram: Justice Treston

Ms. Carey for Claimant
Mr. Yawah for Defendants

Date of Hearing: 30 August 2004
Date of Decision: 21 September 2004

DECISION ON QUESTION OF LAW

In a decision of 3 June 2004, the learned Magistrate reserved a question of law for the consideration of this Court under Section 11 of the Courts Act [CAP. 122]. The hearing took place under Rule 16.22 of the Civil Procedure Rules no. 49 of 2002.

The Magistrates' Court action involved a claim by the Claimant against the Defendants for severance allowance, balance of notice payment, and leave entitlement.

Although the learned Magistrate reserved the question of law in relation to "continuous employment" under Section 54 of The Employment Act [CAP. 160] (the Act) it is clearly not an issue because continuous employment is clearly specified in Section 54 (2) (a) which provides that for the purposes of subsection (1) (namely severance allowance):

"(a) an employee who works for his employer on 4 or more days in any week shall be deemed, in respect of that week, to have been in continuous employment"

Counsel confirmed at the hearing in this Court that the question of assessing the severance allowance due by the Defendants to the Claimant was not an issue. Also the question of whether there should have been more than three months notice given to the Claimant in these circumstances under S.49 (3) (a) is a matter for the learned Magistrate. However, the matter that causes more difficulty is the question of leave entitlement due to the Claimant.

The Claimant commenced working with the First Defendant in June 1985 and with the Second Defendant sometime in 1989. He alleged that he was in continuous employment from June 1985 to January 2003 (namely seventeen years and seven months). The Claimant alleged that he was not given annual leave during that period and claimed payment for 211 months annual leave at VT1, 600 per month.

As I have indicated above, "continuous employment" for the purpose of assessing a severance allowance is clear from the wording of Section 54 but that definition is an exclusive one for the purposes of assessing severance allowance.

The question of annual leave is provided for in Section 29 (1) of the Act as follows: -

"Every employer shall grant an employee who has been in continuous employment with him for 12 consecutive months annual leave on full pay at the rate of 1 working day for each month of employment"

No specific definition of continuous employment as such is given in the Act in relation to annual leave but a guide is given to it under Section 32 of the Act which provides as follows: -

"Entitlement when contract terminated

32. If a contract of employment terminates before the employee has acquired entitlement to annual leave, an allowance calculated on the basis of the entitlement provided for in section 29 shall be paid in the place of leave:
    

Provided that if the contract has been broken by the employee such allowance shall only be payable on condition that the employee has completed at least 6 months service, and, that in the case of hourly or daily paid employees 1 month service shall mean not less than 22 days' work carried out within the month."

Although that Section relates to a contract of employment terminating within the 12 consecutive months referred to in Section 29 (1) it is clear that the principle in that definition may be applied to this case.

I rule that the Claimant is entitled to recompense for 1 working day for each month of employment when he carried out not less than 22 days' work in the particular month. As it happened during the course of submissions in the Supreme Court both parties were prepared to agree to that course in any event but nevertheless sought a ruling form the Court.

I am of the view that that approach is within the International Labour Organization's guidelines as referred to in the Claimant's submission namely that part time workers should have access on an equitable basis as far as possible under equivalent conditions, to all forms of leave available to comparable full-time workers. Its Part Time Work Convention 1994 states that entitlements may be determined in proportion to hours of work or earnings. Vanuatu is a member state of the Organization.

In accordance with Rule 16.22, I return the matter to the Magistrates' Court for action and calculation of leave entitlement in accordance with this ruling.

Dated AT PORT VILA, this 21^st day of September 2004

BY THE COURT

P. I. TRESTON
Judge