This is an appeal lodged
against a judgment of the Magistrate’rt issued on 6 September 20er 2000.
The Plaintiff/Respondent, Mrs.
Leirip Takaa former employee of the Dehe Defendant/Appellant, Mr. George
Vasaris. The Respondent
commenced her employment with the Appellant as
Secretary/Typist in or about June 1992 and ended on 30 October 1998. On 30
October 1998 the Appellant required the attendance of the Respondent in his
office. The Respondent approached the Appellant
in his office with a letter
expressing he desire to resign with immediate effect. The Appellant perused
the contents
of the resignation letter and accepted the resignation as
requested by making a note on the bottom of the Plaintiff’s letter.
The
Respondent attempted to demand to the Appellant unpaid leave. The Appellant
denied any claim to this effect. The
Respondent/Plaintiff filed her claim
seeking for payment of untaken leave amount to Vatu 255,142 plus interest
and costs.
The Appellant/Defendant filed a
counterclaim and/or set-off. The basis of that counterclaim /set-off is that
by reason
of the said agreement that the Plaintiff resign from her
employment with the Defendant with immediate effect on 30 October
1998 and
pursuant to Section 49 of the Employment Act [CAP.160], the
Plaintiff/Respondent was required to provide the Defendant with 3 months
notice prior to the termination
of the employment.
Therefore by reason
of the Respondent’s failure to provide the Appellant with the 3 months
notice written notice pursuant
to Section 49 of the Act [CAP.160], the
Defendant was entitled to se-off the difference which was not given and the
Plaintiff’s
annual leave of Vatu 290,346 – Vatu 255,142 = Vatu 35,204.
On 6 September His Worship
Magistrate Steve Bani made the followrders:
1. nbsp; p; &nbp; &nbssp; &nbssp;
The DefenDefendant is ordered to pay the Plaintiff the sum of VT 255,142
forthwith;
2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Ipterests on the sahe said sum shall be paid at a rated of 10% per annum
from
30 October 1998 until full paymeneffec/span
3. &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nb Than>The Defe Defendant shall meet the costs of this proceedings.
Initialere was appeal
against 2 grounds as set out in the Notice and grounds of appeal dateddated 6
December 2000. But
it is now restricted tot the following ground:
“2. In the alternatihe
Learned Magistrate erred by misdirecting himself belf by failing to hold that as
a matter of law,
the legal consequence of this factual finding that “the
Plaintiff had failed to give the Defendant 3 months notice, and I so
rule”,
was that the Defendant was entitled to set-off the equivalent of 3 months
salary from the amount of outstanding
leave due to the Plaintiff as at her
resignation date of 30 October 1998.
On appeal thirt is invited
to decide on the proper construction ofon of Section 49(4) of the Employment Act
[CAP.160], as amended; (“the Act”).
There is no dispute between the
parties in respect to the materacts.
“Notice of
termination need not be given if the employer pay the employee the full
remuneration for the appropriate period
of notice specified in subsection
(3)”.
p class="MsoNormal" sal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
To understand the meaning of
Section 49(4) you need to read Section 49(1). The Lehe Learned Magistrate is
correct when
he ruled under s. 49(1) either party may give notice to
terminate a …………….. when the term of the ……………. Is continuous. The
employer
or employee may give notice tot the other for his intention to terminate the
………………
By s. 49(2) the may be given at
any time. Section 49(3) provides for ground of notice and the notice period
– acceptance.
The question is whether Section 49(4) has any application in
the present case.
In this case the Respondent
informed the Appellant of her intento resign from her employmeloyment with
immediate effect
to this effect.
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That acceptance of the
Respondent’s resignation witediate effect by the Appellppellant amounted to
the employer accepting
to pay full remuneration of the appropriate period of
notice as specified under Section 49(3).