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Sakari v Origin Energy LP Gas & Appliance Suppliers Ltd [2014] VUSC 47; Civil Case 68 of 2012 (23 May 2014)

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


CIVIL CASE No.68 OF 2012


BETWEEN:


AND:


KALTON SAKARI,
Tagabe Area, Port Vila,
Vanuatu
Claimant


ORIGIN ENERGY LP GAS &
APPLIANCE SUPPLIERS LTD
Defendant


Corum: Vincent Lunabek, CJ


Mr Britten Yosef for Claimant
Mr Nigel Morrison for Defendant


JUDGMENT


  1. This claim concerns the monetary entitlement of the claimant from the Defendant, his former employer, consequent upon the termination of his employment by the Defendant on 17th August 2012. The facts of this case are simple and not in dispute.
  2. The claimant started work with the Defendant on the 17th August 2009 as a heavy duty delivery driver. On 17th February 2012, he attended to work and was being hand delivered a letter from the then General Manager of the Defendant, Mrs Tara Pedro. The letter was dated 14th February 2012 and it was a termination letter, terminating the claimant from his employment.
  3. The letter contained the following particulars:
  4. At no material time, did the General Manager of the Defendant called the claimant into her office and questioned him about all the allegations she mentioned in her letter of 14th February 2012.
  5. The Defendant did not provide the claimant with an opportunity to provide a response to the allegations that were being made against him.
  6. The Defendant did not provide a three months notice to the claimant to advise the claimant that his employment with the Defendant will be terminated and the Defendant did not pay any severance entitlement to the claimant.
  7. Thus, this claim by the claimant claiming for his employment benefit entitlements.
  8. On 25th April 2014, in a conference hearing of this proceeding, both Counsel agree on the following:

"49. Notice of Termination of Contract.


(1) A contract of employment for an unspecified period of time shall terminate on the expiry of notice given by either party to the other of his intention to terminate the contract.

(2) Notice may be verbal or written, and, subject to subsection (3), may be given at any time.

(3) The length of notice to be given under subsection (1) –

(underlined are my emphases)


(v) The Defendant agreed to pay the claimant the sum of 24,000VT being for the one month notice.

(vi) It was agreed that the dismissal of the claimant by the Defendant was unjustified as it was done in breach of section 50 of the Act [Cap 160).

(vii) As to the claimant's basic severance allowance, the claimant is entitled to 60,000VT (calculated as 2.5 X 24,000 = 60,000). The Defendant agreed to pay the basic severance allowance of the claimant of 60,000VT.
  1. The sole issue for the Court to decide is:

"Is the Claimant entitled to relief under section 56 (4) of the employment Act by having his basic severance entitlement of Vatu 60,000 multiply up to 6 times?


  1. Both Counsel provide submissions in respect to the remaining issue. The claimant also filed a sworn statement in support of this last outstanding issue.
  2. I have perused the submissions of both counsel and the authorities referred to in the submissions. I accept the guideline judgments of the Court of Appeal in Banque Indosuez Vanuatu Ltd v. Ferrieux [1990] VUCA 3; [1980 – 1994] VAN LR 490 (23 October 1990) and others.
  3. I draw from the Defence counsel submissions and accept that in respect to section 56 (4) the following is determined from the guideline judgments [Banque Indosuez Vanuatu Ltd v. Ferrieux [1990] VUCCA3; Hack v. Fordham [2009] VUCA 6: Melcoffee Sawmill Ltd v. George [2003] VUCA 24]:
  4. The claimant must prove special damage. The claimant in his sworn statement on 9 May 2014 relies on the following facts to show "special damages":
  5. On the evidence, the claimant is entitled to a multiplier by 3. He will therefore be entitled to severance allowance of 60,000VT x 3 = 180,000VT under section 56 (4) of the Act.
  6. As to the interest claimed under section 56 (6), the claimant is entitled to 5% from the date of termination to the date of payment.
  7. The claimant is entitled to costs against the Defendant on the standard basis.

ORDERS


  1. The claimant is entitled to the following entitlements:
(i) 1 month notice payment
VT 24,000
(ii) Basic severance allowance multiply by 3 (60,000VT x 3)
VT 180,000
Total
VT 224,000
(iii) Interest of 5% on the amount of VT 224,000 from the date of termination (17 February 2012) to the date of payment).


  1. The claimant is entitled to his costs against the Defenant on standard basis. Such costs be agreed or taxed.

DATED at Port Vila this 21st day of May 2014


BY THE COURT


Vincent LUNABEK
Chief Justice


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