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Manuake v Public Service Commission [2003] VUSC 43; Civil Case 198 of 2002 (29 July 2003)

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

CIVIL CASE NO. 198 OF 2002

BETWEEN:

RAYMOND MANUAKE
Claimant

AND:

PUBLIC SERVICE COMMISSION
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant

Coram: Chief Justice Vincent Lunabek

Silas Charles Hakwa for the Claimant
Michael Edwards for the Defendant

JUDGMENT

1. The nature of Proceedings and Relief Sought

The claimant by way of Writ of Summons filed before the Court on the 12th December 2002 applied to the Supreme Court against the Public Service Commission and the Attorney General for the mode of miscalculation of his severance pay. The claimant alleged that he was entitled to severance pay pursuant to Section 56(1) of the Employment Act [CAP 160].

2. Brief background of the case: Facts are agreed and not in dispute

The claimant was an Officer in the Translation Department of the Public Service at the time of his resignation. The claimant resigned from the Public Service on the 28th of May 2002 having served seventeen (17) years, four (4) months and twenty-seven (27) days.

The claimant at the time of his resignation, was a senior officer in the translation department at which he was receiving an annually salary of VT 1,099,008.

During the first few years of the claimant’s employment commencing in 1985, he was receiving monthly salaries at the end of each month, normally on either 30th or 31st except for February.

Beginning from early 1990’s to 1999 or 2000, the claimant was receiving salaries at the end of each fortnight i.e. on the 15th day and at the end of each month. Beginning in 1999 or 2000 the Government introduced and is now applying 26 day pay days in one calendar year. At the time of his resignation the claimant was receiving salaries on alternate Fridays.

The claimant said he is entitled to severance entitlement pursuant to section 56(1) of the Employment Act [CAP 160]. He is claiming VT. 1,099, 793 for his severance entitlement which is disputed by the defendant. The defendant said the claimant is entitled only to VT. 785, 679. The defendant invited the Court to determine the application of the provisions of section 56(2)(ii) of the Act in relation to a permanent Public Servant who resigned from service in accordance with section 28 of the Public Service Act N0. 11 of 1998 as amended by the Public Service Amendment Act No. 18 of 2000, the Public Service Amendment Act No. 37 of 2000 and the Public Service Amendment Act No. 8 of 2001.

Two (2) issues for the Court to determine

1. Is section 56(2)(a)(ii) of the Employment Act, ambiguous, that it requires the Court’s intervention?

2. If the answer to question 1 is in the negative, then, the amount of severance allowance calculated by the claimant must stand.

The law and its application

I have read in detail the respective submissions and evidence produced by both parties. The defendant invited the Court to determine the application of the provisions of sections 56 (2) (ii) of the Employment Act in relation to a permanent Public Servant who resigned from service in accordance with section 28 of the Public Service Act No. 11 of 1998 as amended my the Public Service Amendment Act No. 37 of 2000 and the Public Service Amendment Act No. 8 of 2001.

The defendant says the words ‘days’ as used in section 56(2)(a)(ii) mean ‘calendar days’ and not ‘working days’. The defendant relies on the judgement in the case of Lindsay David Barrett –v- Robert Harry Petterson and Michael Patterson Civil Case No. 122 of 1992, Vanuatu Law Reports Volume 2, page 558. The defendant alleges that if we take the word ‘day’ in section 56(2)(a)(ii) of the Act as working days that would mean or create an injustice as an employee receiving monthly salary will receive less severance allowance.

The claimant gave a comprehensive and detailed submission on the issue in question. He said the provisions of section 56 (2) (a) and (b) of the Act are clear, straight forward and not in any way ambiguous. He said the Court is only required to re-state the plain simple and ordinary meaning of words used. He invited the Court to give the words used in section 56(2)(a)(ii) any other meaning other than their plain, simple and ordinary meaning.

Section 56(2)(a)(ii) of the Employment Act [CAP 160]

“(2) Subject to subsection (4) the amount of severance allowance payable to an employee shall be:

(a) for every period of 12 months-

(i) half a months remuneration where the employee is remunerated at intervals of not less than 1 month;

(ii) 15 day’s remuneration, where the employee is remunerated at intervals of less than 1 month.

(b) for every period less than 12 months, a sum equal to one twelfth of the appropriate sum calculated under paragraph (a) multiplied by the months during which the employee was in continuous employment.’’

Determination of Issues

1. Is section 56(2)(a)(ii) of the Employment Act, ambiguous, that it requires the Court’s intervention?

The answer to the above question must be on the negative. It is highly unnecessary for the Court to interfere with the plain meaning of the above section. The provisions of section 56 (2) (a) and (b) of the Act are clear, straight forward and not in any way ambiguous.

I agree with the claimant’s counsel that Parliament in its wisdom has prescribed in the Act two schemes, one for the employees who get paid every monthly and one for employees who get paid at intervals of less than a month.

The word ‘days’ in section 56(2)(a)(ii) if taken on its own does not mean anything. It must be read in conjunction with ’15 days’ remuneration’ then its plain simple and ordinary meaning is obvious. It means ‘the remuneration which an employee received for working 15 days.

I find it difficult to reconcile the word ’15 days remuneration to mean ‘calendar days as alleged by the defendant. I maintained that it is not the intention of the Legislature. If the Parliament have intended to use ‘calendar days’, it would have done so. In the light of the Employment Act, it did not.

2. Is the claimant’s severance entitlement of VT. 1, 099, 793 sufficient in law?

The Court is not hesitant to answer the above question on the affirmative. The answer must be on the affirmative. The justification for the Court’s affirmation is reflected on the language of section 56(2)(a)(ii) of the Employment Act. I find it difficult to depart from the ordinary meaning of the above law. The law speaks of itself.

Section 56(2)(a)(ii) states that:

“Subject to subsection (4) the amount of severance allowance payable to an employee shall be-

(a) for period of 12 months-

(ii) 15 day’s remuneration, where the employee is remunerated at intervals of less than 1 month.”

The claimant worked from Monday to Friday, 5 days in one week. He received his salary at the end of every 10 working days. I agree with the claimant’s argument that to ascertain his daily salary all that is required is to divide his salary for 10 days by 10. Once that is ascertained, one simply does the calculation in accordance with section 56(2)(a)(ii) of the Act.

The following displays the calculation in accordance with the provisions of section 56(2)(a)(ii) of the Act as transpired in the claimant’s submission:

- Salary for 10 working days: VT. 42,125
- Salary for one (1) working day:
- 42,125 divided by 10 = VT. 4,212

Severance allowance for 17 years, 4 months, 27 days

(a) For 17 years: VT. 4,212 x 15 x 17 = VT. 1, 074, 060

(b) For 4 months: VT. 4, 212 x 15 x 4 = VT. 21, 060

12

(c) For 27 days: VT. 4,212 x 15 x 27 = VT. 4, 673

365
________________
TOTAL .............................................................. VT 1, 099, 793

I agree that the amount reached by the calculation is in accord to section 56(2)(a)(ii) of the Employment Act. Accordingly the claimant’s severance entitlement of VT.1, 099,793 is sufficient and founded in law.

The case of Barrett –v- Patterson as relied on by the defendant is essentially a good law that supports employees who work seven days a week. However, I find it difficult to reconcile it with the facts and circumstances surrounding the present case. On that basis I must reject it.

The judgment is entered in favour of the claimant.

The matter is adjourned to 19 August 2003 for enforcement conference at 1.30PM o’clock in the afternoon.

DATED AT PORT VILA, this 29th DAY of JULY 2003

BY THE COURT

VINCENT LUNABEK
CHIEF JUSTICE