Ati v Vanuatu Commodities Marketing Board [2012] VUSC 253; Civil Case 06.2012 (11 December 2012)

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

Civil Case No. 06 of 2012

BETWEEN:

MARK ATI
Claimant

AND:

VANUATU COMMODITIES MARKETING BOARD
Defendant

Mr Justice Oliver A. Saksak

Mr James Tari for the Claimant (Mark Ati)
Mr Godden Avock for the Defendant (VCMB)

Date of Hearing: 11th October 2012
Date of Judgment: 11th December 2012

JUDGMENT

1.1. Mark Ati was employed by VCMB under an employment contract dated 27th April 2011. He occupied the position of Accounts Clerk. This contractual engagement commenced on 27th April 2011 and was to last for 2 years and 8 months ending on December 2013. He commenced work with VCMB on 1st September 2003 as Accountant.

1.2. The Board of VCMB under the Chairmanship of Jonathan Sisai was appointed by Ministerial order on 31st January 2011. On 19th January 2012 this Board terminated the Claimant's appointment. On the following day 20th January 2012, the Minister terminated the Members of the Board.

1.3. The Claimant was receiving a monthly salary of VT230.000 per month on termination.

2.1. The Claimant claims that –

(a) His termination was unlawful and unjustified;

(b) He was not given an opportunity to respond to the allegations made against him;

(c) He was not given three months notice or salaries in lieu thereof;

(d) He was not paid any severance.

2.2. He seeks the following reliefs –

(a) Severance in the sum of VT1.935.833 x 6 at VT11,614,998;

(b) Notice x 3 months at VT690,000;

(c) Interests; and

(d) Costs of the action.

3.1. The Claimant filed his Supreme Court Claims on 12th February 2012 together with a supporting sworn statement.

3.2. The matter was first called for conference on 16th April 2012 when the Court directed the defendant to file and serve their response, defence and sworn statement within 21 days and the Claimant to respond within 14 days thereafter. The matter was returnable for further conference on 21st May 2012.

3.3. On 21st May 2012 both Counsel were in attendance and the defendant still had not filed any response, defence or sworn statement as directed. Mr Tari sought for default judgment orally. The Court accepted the oral request and granted default judgment in the sums of VT11,614,998 as severance, VT690,000 as salaries in lieu of 3 months notice, 5% interests and costs.

3.4 On 2nd July 2012 Mr Avock filed an application to set aside the default judgment together with his sworn statement.

3.5 On 11th July 2012 the Court heard the application and set aside the default judgment. The formal decision was published on 18th July 2012. New direction orders were issued requiring proper service by the claimant within 7 days and for the defendant to file and serve their response, defence Counter Claim (if any) and sworn statements within 21 days thereafter. The matter was made returnable for 17th September 2012.

3.6 On 14th September 2012 Mr Avock filed a sworn statement by Dick Tete.

3.7 When the Court sat on 17th September 2012 it treated the matter as a pre-trial conference as both Counsel had indicated they were ready for trial. The Court then fixed the trial date for 11th October 2012.

4.1 On 11th October 2012 when the Court sat to hear the matter the defendant had not filed any defences and/or Counter Claims. Both Counsel agreed that the facts were not in dispute. The defendant conceded that the Claimant's dismissal was unjustified. The only remaining issues were –

(a) whether the Claimant is entitled to 3 months notice?, and

(b) whether he is entitled to severance payments?

4.2 Both Counsel agreed to file and serve written submissions within 21 days by the Claimant and responses by the defendant within a further 21 days.

4.3 Following those directions the Claimant filed his written submissions on 7th November 2012. The defendant has not filed any written submissions. The Court will dispense with the defendant's submissions.

Discussions

5.1 The Court has considered all written submissions by Mr Tari and would make the following observations at the outset of the Court's discussions and considerations that -

(a) with respect to Counsel the Claimant's claims dated 13th February 2012 are very badly and poorly pleaded.

(b) the Claimant has not provided any evidence at all in relation to his claim that he was employed by VCMB since 1st September 2003.

(c) damages for breach of contract and common law damages are not pleaded.

(d) the claims are ill or misconceived.

5.2 Counsel for the Claimant raised four issues in his written submissions as follows:-

(a) whether the Claimant is entitled to:-

(i) 3 months salaries in lieu of notice?

(ii) severance and multiplier?

(iii) damages for breach of contract; and

(iv) common law damages.

5.3 As indicated in paragraph 5.1 above damages for breach of contract and for common law damages are not pleaded in the claims. Those claims have not been amended at anytime. As such, submissions made in relation to these two heads of damages are rejected. Accordingly the Court answers these two issues in the negative. These claims are therefore dismissed.

5.4 In relation to the claim for 3 months salaries in lieu of notice, the Claimant is not entitled to this. Clause 3 of the Contract of Employment dated 27th April 2011 is specifically for 2 years and 8 months to December 2013, with room for extension at the discretion of the VCMB as employer.

Under the Employment Act the Claimant would, under his circumstances be entitled only to 14 days notice or salaries in lieu thereof. Section 49 (3) (b) provides the legal basis for this view.

5.5 In relation to claims for severance and multiplier of 6 times, his claim is calculated on the basis of 8 years worked from 1st September 2003 to 19th January 2012. As indicated earlier, the Claimant has no evidence in relation to his appointment and employment since 1st 'September 2003. The only relevant period the Court has to consider is the period from 27th April 2011 to 19th January 2012. That is the period under the two year contract. And that is a period of 9 months. Under his contract of employment, the Claimant was in employment with VCMB for 9 months. Under those circumstance, is he entitled to severance payment for that period? The answer is in the negative. Section 54 (i) of the Employment Act Cap 160 as amended states:

"(1) Subject to Section 55, where an employee has been in continuous employment for a period of not less than twelve months, with an employer on a contract of employment entered into before or, on or after the date of commencement of this Act, and

(a) The employer terminates his employment,

(b) N/A;

(c) N/A;

The employer shall pay severance allowance to the employee under the Act." (emphasis, mine)

Applying this provision to the facts, the Claimant's claims for severance allowance plus a multiplier of 6 times therefore fail and are hereby dismissed.

6. Case Authorities.

Mr Tari referred to Court to the cases of Tyrone Mann v. Air Vanuatu Ltd., Civil Case No. 136 of 2009. In that case the trial judge adopted the Court of Appeal ruling in Banque Indosuez Vanuatu Ltd. V. Ferrieux [1990] VUCA 3 and VBTC v. Malere [2008] VUCA 2 when he awarded severance allowance and considered a multiplicand. None of those cases assist the Claimant's case.

Conclusions

7.1. The Claimant's claims succeed only in part in relation to his claims for salaries in lieu of notice. And judgment is given in his favour in the sum of VT115,000 being for salaries in lieu of 14 days notice. This is calculated simply by dividing his monthly salaries of VT230,000 by 2.

7.2. The Claimant claimed for interests. The Court allows interests of 5% per annum as the commonly awarded interest, calculated on a monthly basis from January 2011 to the date of judgment.

7.3. The Claimant claimed for costs. He is entitled only 10% of his to costs of and incidental to the action on the standard basis as agreed or be determined by the Court. He has lost 90% of his claims and can only be entitled to 10% of his costs.

7.4. The defendant is hereby ordered to pay to the Claimant as follows:-

(a) VT115.000;

(b) Interests thereon at 5% per month from January 2011 to December 2012; and

(c) Costs of and incidental to the action on the standard basis as agreed or taxed by the Court but limited to 10% of the total costs.

These shall be appropriately calculated by Counsel and submitted to the State Law Office, and paid out together as a single payment.

DATED at Luganville this 11th day of December 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge