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Samson v Tailleur [1988] VULawRp 20; [1980-1994] Van LR 324 (5 May 1988)

[1980-1994] Van LR 324

IN THE SENIOR MAGISTRATE'S COURT
FOR C.D. NO. 1 AND SOUTH HELD AT PORT VILA

CIVIL JURISDICTION

Civil Case No. 10 of 1987

BETWEEN:

ANNA SAMSON
Plaintiff

AND:

DON TAILLEUR
Defendant

Coram: P. Dean, Magistrate

JUDGMENT

[EMPLOYMENT - employee's entitlements to holiday pay, pay in lieu of notice and severance allowance considered]

The Plaintiff Anna Samson worked as a tailoress for Don Tailleur the Defendant for a very long time. She began working for him in June I980 and finished work in August 1986. She said that she had some time off when either she or her children were sick. The Defendant on the other hand in his evidence in chief claimed that the Plaintiff used to come to work late, that she would miss 2 days a week or sometimes not turn up for a week or a month at a time. The Defendant said that he kept a wages book and that he had given this book to his Counsel, Mr Boulekone. Although Mr Boulekone evinced from the Plaintiff in cross examination that Mr Tailleur kept an exercise book in which his employees had to sign when they received their pay, and that the Plaintiff always signed that book when she was paid, and although Mr Tailleur himself in cross examination said to Mr Rissen that while he could not remember precisely when the Plaintiff had started working for him - it was recorded in his work book - despite all that, Mr Boulekone decided not to tender the exercise book in evidence. The Defendant's wife Luong Luan also gave evidence and she said, in response to a question from Mr Boulekone, and referring to the Plaintiff,

"My husband recorded all this in the book."
"If she worked, it is recorded in the book."

I do not have the benefit of having this book in evidence. On the account of all witnesses in the case the book would provide an accurate record of the exact periods when the Plaintiff worked for the Defendant, and exactly how much she was paid for each period of work. In the absence of this book I accept the evidence of the Plaintiff that she was paid 7.500 VATU each fortnight for two weeks work. I find that she was employed from June 1980 until August 1986, a period of 75 months.

The Plaintiff in her Statement of Claim dated 19th February, 1987 seeks:

(a) Holiday pay - calculated at the rate of 1 day per month for 73 months less 12 days paid ie. 61 days at 750 VATU and claims 45.750 VATU;
(b) Pay in lieu of Notice - 3 months at 16.250 VATU;
(c) Severance Allowance - 6½ x (16.250 divided by 2) VATU and the Plaintiff also claims fees and costs.

At the time that the Plaintiff started working for the Defendant and until the 30th May, 1980 when the Employment Act of 1983 came into operation the conditions of Employment between the parties were controlled by Joint Regulation No. 11 of 1969, Section 89 of that Joint Regulation provided that:

".. entitlement to paid holidays shall be acquired at the rate of one working day for each month of effective service."

Section 90 provided entitlement to paid holidays shall be acquired:

"(b) in the case of any worker engaged for an unspecified period after working for one year with the same employer. Provided that such worker shall have the right at his own request to accumulate his entitlement to holiday for a period of two years and provided further that this period may be extended to a maximum of three years by agreement with the employer."

Section 93 provided that when a contract was terminated then:

"an allowance calculated on the basis of the entitlement provided for in Section 89 of this Regulation shall be paid in place of the holiday."

Anna Samson's evidence was that at the end of the first year of her employment she received neither a holiday pay nor pay in lieu of a holiday. I accept her evidence that in fact she took no holiday at all during this 75 months period of work and that it was not until she asked at the end of the period of employment that she was paid 15.000 VATU holiday pay. This was the amount paid by Cheque No. 795956 dated 30/9/86 and produced in evidence as Exhibit A.

The Plaintiff did not in the evidence raise the matter of holidays or holiday pay until her employment had ceased. There was no agreement with her employer that she could accumulate her entitlement to holiday for the maximum period of 3 years permitted by the provision to Section 90(b) of the Joint Regulation 11 of 1969.

It would seem that a worker could accumulate his entitlement to holidays for 2 or 3 years so that the Plaintiff here could have waited until May 1984 (and thus accumulated her entitlement for 3 years) if there had been discussion and negotiation leading to agreement with the Defendant that she could take that course of action.

In any event it appears that the Plaintiff steadily worked on year after year either not knowing or not being told that she could take holidays after working for one year. Section 91(3) provided that:

"The date of commencement of holidays shall be fixed by the employer, who shall inform the worker thereof at least fifteen days in advance."

At first sight it would appear that the effect of Section 90(b) is such that if there was no request or agreement to accumulate the entitlement to a holiday then that entitlement was lost. That could only be the case if the employer had first fixed the date of commencement of a holiday.

An employee cannot lose her entitlement to holiday, through not negotiating an accumulation of entitlement if the employer does not in the first place fix the date of commencement (perhaps because his firm is busy and he has to keep the employee working to maintain "the efficiency of the undertaking." - see the provision to Section 91(4) Joint Regulation 11 of 1969).

I find that on the 30th May, 1983 Anna Samson had acquired an entitlement to paid holidays of 36 days ie. one working day for each of the 36 months of effective service that she had then completed.

The transitional provision contained in Section 80 of the Employment Act No.1 of 1983 that came into operation on 30th May, 1983 provided:

"The Provisions of this Act shall apply to all contracts of employment in force at the date of the commencement of this Act, and where any provision in any such contract is inconsistent or in conflict with any provision of this Act, the latter provision shall prevail to the extent of such inconsistency or conflict."

There was a contract of employment in force between Anna Samson and Don Tailleur on the 30th May, 1983 and the provisions of that contract (as incorporated by Joint Regulation No. 11 of 1969) were inconsistent with the provisions of the Employment Act in that Section 29 of the Employment Act simply provides that:

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

And there is no provision of the Employment Act restricting the accumulation of entitlement to holidays or suggesting that the entitlement is lost if not taken up within a particular period of time, while the employee is still working for the employer.

Section 33 of the Employment Act provides:

"After leaving the service of his employer any employee may avail himself of his annual leave and travel, if any, within six months counting from the date on which he ceased to work for that employer; Provided that travel shall only be paid for by the employer if the employee actually makes the journey."

In this case Anna Samson made a claim on her employer for annual leave soon after leaving his service. The matter was discussed in correspondence between the Defendant and the District Labour Office - (See Exhibit B) in October 1986 and employment for not less than three years that to be fair there should be a progressive increase in the period of notice as additional years are worked so that in this case the fair period of notice could be said to be six months. Be that as it may the Plaintiff has seen fit to claim an amount of three months pay in lieu of notice.

I am satisfied that the Defendant terminated the contract with the Plaintiff without giving her the required minimum three months notice. I find that the Defendant told the Plaintiff to stop working to use her words "until there is some work" but that he did not take her back onto his staff permanently. It appears from the evidence that she was laid off then went back after a week worked a few days and then was laid off again and as she said in cross examination:

"he said he would come and get me if there was some work to be done. I waited and waited but he never came."

I find that it was the Defendant who laid the Plaintiff off and that it was not a question of her abandoning the job she held for six years. I prefer the Plaintiff's evidence on this point to the Defendant's evidence. I do not accept the Defendant's evidence that:

"I told her to come back tomorrow but she never came back."

I consider the Plaintiff's account of the matter the much more likely version of events having observed both witnesses in the witness box and bearing in mind the length of time the Plaintiff worked for the Defendant.

I award the Plaintiff three months pay in lieu of notice ie. 3 x 16.250 VATU a total amount of 48.750 VATU.

THE CLAIM FOR SEVERANCE ALLOWANCE

Section 54 (1) of the Employment Act provides that .... "Where an employee has been in continuous employment for a period of not less than 12 months with an employer and the employer terminates his employment .... the employer shall pay severance allowance to the employee." A claim was lodged with this Court on 19th February, 1987.

By making the claim on her employer in September or October 1986 at the earliest or by the filing of her claim with this Court on 19th February, 1987 at the latest, I find that the Plaintiff has availed herself or taken advantage of her annual leave within the six month period referred to in Section 33. I treat the section as meaning that an employee must take some step to claim the annual leave within six months from the date she ceased to work for that employer. To interpret the Section as meaning that the annual leave must actually be taken within that six months would mean an unscrupulous employer could frustrate both his former employee and the intention of the Act by simply refusing to pay the holiday pay for six months.

I take the view therefore that at the 30th May, 1983 when the Employment Act came into operation, the Plaintiff had an entitlement to 36 days paid holiday.

She continued to work for the Defendant for more than another three years - in fact, and I so find, for 75 months in all from June 1980 until August 1986. She is therefore entitled to holiday pay at the rate of 1 day per month for 75 months ie. 75 days at 750 VATU per day = 56.250 VATU less the amount of 15.000 VATU paid on the 30th September, 1986. Balance 41.250 VATU.

THE CLAIM FOR PAY IN LIEU OF NOTICE

Anna Samson had by August 1986 worked for Don Tailleur for a continuous period of 75 months. Her contract of employment was for an unspecified period of time and therefore it terminated on the expiry of notice given by either party to the other of his or her intention to terminate the contract. (Section 49 of the Employment Act). Anna Samson had been in continuous employment with the Defendant for not less than three years and so she was entitled to be given not less than three months notice under Section 49(3)(a) of the Employment Act. Section 56(2)(a)(ii) provides the amount of severance allowance payable to an employee shall be for every period of 12 months - 15 days remuneration, where the employee is remunerated at intervals of less than one month and subsection (2)(b) provides that "for every period less than 12 months, a sum equal to ½ of the appropriate sum calculated under paragraph (a) multiplied by the number of months during which the employee was in continuous employment.

The Plaintiff therefore claims for 6 periods of 12 months at 15 days pay: ie. 6 x 15 = 67.500 VATU plus ½ of 11.250 x 3 = 2.812 VATU.

The Plaintiff's total claim under this category is 70.312 VATU.

I repeat that the contract of employment between the Plaintiff and the Defendant was in force on the 30th May, 1983 and so Section 80 of the Employment Act stipulates that the provisions of the Act apply to this contract. The contract was in existence and so the Act applies. In my view the Act applies to the whole period of contract. That is the clear intention of Section 80. This is particularly apparent from the opening words of Section 80 and is reinforced by the further words dealing with inconsistencies or conflict between provisions of the Employment Act and provisions in contract at the time the Employment Act came into force.

There is an assumption that legislation is not retrospective. In Australia the leading case is Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 where Dixon C.J. said (page 267):

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

Mr Boulekone submitted that the Employment Act, to use his words, "can rule only from 1983 but not before 1983" and he drew analogies with the position of daily rated workers employed by some of the older companies in the country and with the position of plantation workers.

The Employment Act affected rights by changing them with effect prior to the commencement of the Act. The concept of a Severance Allowance was new, it was not something dealt with in Joint Regulation No.11 of 1969, and although the Act operates retrospectively, in my view it is not just a matter of "reasonable certainty", but rather it is crystal clear from the terms of Section 80, that Parliament intended this Act to apply to events that had already occurred in such a way as to confer new rights and obligations on the two parties to a contract of employment.

If transitional provision Section 80 had not been incorporated in the Act interpretational problems would be difficult but the presence of Section 80 in my view puts the matter beyond doubt.

I find therefore that the Plaintiff is entitled to Severance Allowance as claimed of 70.312 VATU.

Section 56(4) of the Employment Act provides that:

"The Court shall, where it finds that the termination of the employment of an employee was unjustified, order that he be paid a sum up to six times the amount of Severance Allowance specified in subsection (2)."

No claim was made under this heading under the Statement of Claim. The evidence was concerned more with the manner in which the contract was terminated rather than the justification for the termination. Although I find that it was the Defendant who terminated the employment of the Plaintiff there is not sufficient material before the Court on which to base any finding that the termination was either justified or unjustified and so I make no award under Section 56(4).

No claim has been made for interest under Section 56(6) of the Employment Act and in all the circumstances of the case I do not consider an award of interest appropriate.

In summary the Plaintiff is awarded a total amount of:

(a) Holiday pay 41.250
(b) Pay in lieu of notice 48.740
(c) Severance allowance 70.312
TOTAL VATU 160.312

The Plaintiff also seeks fees and costs.

Order 32 rule 1 of the Magistrate's Court (Civil Procedure) Rules 1976 provides:

"Under the denomination of costs is included the whole of the expenses necessarily incurred by either party to any cause or matter, and in enforcing the decree or order made therein, including the expenses of summonsing and of the attendance of the parties and witnesses and of obtaining copies of documents, the fees of the Court and the remuneration of references."

Order 5 rule 2 of the Rules provide:

"Costs shall be allowed to advocates and taxed in accordance with the scale of costs specified in Appendix C."

Order 32 rule 2 provides:

"All questions relating to the amount of costs shall, unless specially referred to taxation, be summarily determined by the Court".

In this matter I see no basis for departing from the normal rule that costs follow the event. I order that the defendant pay the plaintiff's costs.

5 May 1988

P. DEAN
SENIOR MAGISTRATE