De Gaillande v ANZ Bank (Vanuatu) Ltd [2008] VUSC 63; Civil Case 147 of 2006 (8 August 2008)

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

Civil Case No. 147 of 2006

BETWEEN:

JACQUELINE de GAILLANDE
Claimant

AND:

ANZ BANK (Vanuatu) LTD
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Ozols for Claimant
Mr. Rosewarne and Mr. Kalmet for Defendant

Date of Hearing: 4 and 5 June 2008
Date of Decision: 8th August 2008

ADDENDUM TO JUDGMENT

1. In my judgment dated 1 August 2008, I requested further submissions on two points. The first related to the calculation of 3 months remuneration in lieu of notice. The second related to the length of continuous employment for the purposes of severance payment. Submissions have now been received from both parties.
   

2. The payment under s. 49 of the Employment Act related to "full remuneration" for the appropriate period. The Bank’s counsel submits that "remuneration" means salary only, not other benefits, relying upon Banque Indosuez Vanuatu Ltd v. Ferrieux [1990] VUCA 3 and National Bank of Vanuatu v. Culliwick [2002] VUCA 39 CAC 11 of 2002. On that basis, the Bank says that her salary was VT 5,500,000 per annum or VT 458,333 per month. The claimant seeks to add another VT 1,000,000 annually to include "other benefits", which increases the monthly figure to VT 541,666.

In Ferrieux (supra) the Court of Appeal discussed the meaning of "remuneration" in the context of an issue as to whether it included as well "all allowances", meaning the value of all additional benefits. The Court said this:

"Remuneration" is not defined in the Act. Section 16(2) says that part of remuneration may be paid in the form of allowances, but only with the written approval of a labour officer. Section 16(8) refers to payment of "...remuneration and allowances..." which suggests that they are different things. Section 17 refers to receipts for remuneration, which are only appropriate to payments of money.

The term should be given the same meaning throughout the Act. In many places "remuneration" clearly means "payment in money." Accordingly we hold that "remuneration" for the purpose of section 56(2) means salary only."

3. In NBV v. Culliwick (supra), the Court said the following about meaning of "remuneration":
   

"The word "remuneration" is not expressly defined in the Act. However there are many indications from the use of that expression in various sections of the Act which indicate that remuneration is a payment made periodically during the currency of the employer and employee relationship, and covers payments due from the employer as a reward for ongoing work provided by employee. Section 20 itself provides that the limitation period runs from "the end of the period to which the remuneration relates"

.......

In our opinion s.20 is limited in its operation to periodic payments that become due to employees during the currency of a contract of employment. The expression covers ordinary wages paid periodically whilst an employee is at work, but extends to include annual leave and sick leave payments that become due whilst the contract of employment remains on foot: see s.31."

4. The "other benefits" which the claimant seeks to include in the calculation are set out in Annexure JDG17 to her sworn statement dated 10 March 2008. I have considered them. Although some of them are paid periodically they do not constitute part of the remuneration is defined in the case law. The correct figure for remuneration in terms of both s. 49 and ss. 54 and 56(4) is VT 458,333.
   
5. The second issue is the period of continuous employment for the purposes of severance pay. The evidence satisfied me that the employment of the claimant by the Bank and all its predecessors back to 1 October 1974 must be deemed to be continuous employment under s. 54(2)(c). The Bank seeks to rely on the Employment Agreement with Bank d’Hawaii set out in Paragraph 87 of the judgment to avoid liability for the period prior to 1 October 1999. The claimant says important annexure to that Agreement have not been attached.
   
6. I do not accept the Bank’s argument. Obviously entering into a new employment agreement with an employer who acquires the business of a former employer of the worker does not absolve the new employer of liability for severance pay for the period of employment with the former employer. That is exactly the situation s. 54(2)(c) is intended to address. Nor do I read CL9 of the Agreement as containing an acknowledgment by the claimant that she had received severance pay due to her to date, particularly when she has sworn that she did not receive it. If the Bank wishes to dispute that sworn evidence, better evidence than the ambiguous CL9 would be necessary. I find the claimant is entitled to severance pay calculated on a period of employment from 1 October 1974 to 3 August 2007.
   
7. The claimant also sought to raise a new matter, that is whether she was entitled to more annual leave than she received. The Court will not allow the matter to be raised now. If the claimant wishes to pursue it in another proceeding, she may.
   
8. She has also raised the issue of interest. This is not new. It was claimed at the outset. There is no reason she should not have interest from the date she should have received her entitlements, 3 August 2007, at the usual rate of 5%.
   
9. Judgment is entered for the claimant as follows:
   

a)	3 months remuneration	VT 1,375,000
b)	Severance pay (s. 54 (1))	VT 7,524,300
	32 years 10 months
c)	Additional severance pay (s.56(4))	VT 458,333
	Interest at 5%	VT 9,357,633
	3 August 2007 – 8 August 2007 (370 days)	VT 474,290
		VT 9,831,923

Dated at Port Vila, this 8th day of August, 2008

BY THE COURT

C.N. TUOHY
Judge