Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

  Download original PDF

Nasak v Republic of Vanuatu [2025] VUSC 264; Civil Case 868 of 2022 (25 September 2025)

DECISION AS TO ASSESSMENT OF DAMAGES

1. Introduction
   

1. The Claimant Louise Joanne Nasak was employed as Manager, Corporate Services of the Public Service Commission (the ‘Commission). On 13 June 2021, the Commission terminated her employment for what was said to be serious misconduct. She commenced proceedings for damages for unjustified termination of employment.
   
2. The relief sought includes payment in lieu of notice, loss of salaries, allowances, annual leave, severance and 3-times multiplier pursuant to subs. 56(4) of the Employment Act [CAP. 160] (the ‘Act’).
   
3. On 6 September 2023, the Court found that Mrs Nasak’s dismissal was unjustified and entered judgment in her favour for liability with assessment of damages to be determined: Nasak v Republic of Vanuatu [2023] VUSC 142.
   
4. The Defendant the State appealed. By Judgment dated 16 February 2024, the Court of Appeal dismissed the appeal: Republic of Vanuatu v Nasak [2024] VUCA 4.
   
5. The parties filed evidence and submissions as to assessment of damages. This is the decision.
   

2. Background
   

6. I adopt the background set out in the Court of Appeal judgment at [6]–[18]:
   
   6. The events which led ultimately to Mrs Nasak’s dismissal began shortly before Christmas on 23 December 2020. Mrs Hellen Lukai John was also an employee with the Public Service Commission. On 24 December 2020, she reported to the manager of the Public Service Commission Compliance Unit, that on 23 December she had seen Mrs Nasak and another employee of Public Service Commission, Mr Bibi, hugging and kissing. That manager sent a memorandum to the Chairperson of Public Service Commission, Mr Johnson, attaching a copy of the report about Mrs John’s statement and inviting him to take whatever action may be necessary.
   7. The Public Service Commission had an urgent meeting on 24 December. They decided to suspend both Mrs Nasak and Mr Bibi and conduct an investigation into their conduct. On 24 December, Mrs Nasak was served with a letter from the Public Service Commission that told her that she was seen engaging in unacceptable behaviour within the office of the Public Service Commission with another employee, and that she would therefore be suspended with a disciplinary process to follow.
   8. Mrs Nasak said she was surprised by the allegation. On the morning of Christmas day Mrs Nasak saw Mrs Bani who was the Acting Secretary of the PSC. She told Mrs Nasak her suspension was based on what Mrs John had told Mr Johnson. Mrs Nasak contacted Mr Bibi. Later Christmas day, Mrs John, who had made the complaint about the behaviour, was with Mr and Mrs Bibi. Mr and Mrs Bibi decided to take Mrs John to Mrs Nasak’s house to discuss the situation.
   9. On the way to the residence Mrs John told Mr Bibi and later repeated it to Mrs Nasak that she had had a “vision” about their conduct that she had reported to her manager.
   10. Given what Mrs John had told Mrs Nasak and Mr Bibi, they decided to approach their immediate employer Mr Johnson, to tell him that Mrs John’s complaint about their conduct was based on a vision.
   11. Mr Bibi, Mrs Nasak and Mrs John then found Mr Johnson in the front of the Air Vanuatu office on 25 December. They wanted a meeting with Mr Johnson. They tried to tell Mr Johnson about Mrs John’s description of a vision as the basis of her complaint that triggered their suspension. Mr Johnson said that the matter was under investigation and he couldn't tell them anything further. That was the end of their discussion with him.
   12. A few days later on 31 December, the Commission wrote to Mrs Nasak telling her not to interfere with the Public Service Commission disciplinary process and to refrain from interfering with any witnesses, given the disciplinary process was underway.
   13. Mrs Nasak understood that there was an investigation panel appointed to enquire into the allegations against her. By late January, she had received a discipline notice which contained 12 allegations that she was asked to answer. She provided her response. The Public Service Commission indicated it had decided to refer the matter to the Public Service Disciplinary Board by letter of 3 February 2021.
   14. On 9 March, Mrs Nasak received a notice of offence from the Disciplinary Board setting out nine disciplinary charges. She was asked to respond to those allegations. She did so. The charges included allegations as to the competence of Mrs Nasak to do her job. These charges did not seem to be prosecuted and they form no part of this case. Further charges related to an inappropriate relationship between Mr Bibi and Mrs Nasak and to allegations of ignoring proper disciplinary process by transporting Mrs Johns, a witness in the disciplinary case, to Mrs Nasak’s house to talk to her, and approaching the Public Service Commission Chairperson when she had been suspended by the Commission.
   15. There was then a disciplinary hearing completed 6 May 2021. Eight days later on 14 May, the Public Service Commission Disciplinary Board released its final decision. It recommended that Mrs Nasak be reinstated to her position as Manager Corporate Services or be transferred to another Ministry at the discretion of the Commission. In doing so, the Board observed that “this case is not an easy case":

“The Disciplinary Board noted the written statements and submissions from parties including the witnesses, which helped the Board to make its decision. The Board also noted that the PSC process has been violated when Mrs Louise (Mrs Nasak) met the Chairman at Air Vanuatu building. Furthermore, the Board noted that charge six is the main charge in this case, yet the Board find it difficult because the main witness Hellen has conflicting statements and also confirmed during the hearing that she did mention vision”.

16. The day after the Public Service Commission received the Disciplinary Board's final decision (15 May) it had a meeting regarding Mrs Nasak. It then issued a notice of termination of employment to Mrs Nasak, giving her 14 days to respond. The allegations of misconduct that the Commission considered requiring a response from Mrs Nasak, were narrowed to the circumstances under which she had met Mrs John and approached Mr Johnson. Mrs Nasak responded denying she had interfered in the disciplinary process.
17. On 13 June the Commission gave Mrs Nasak notice terminating her employment for serious misconduct under section 50(4) of the Public Service Act, The Commission said:

“the Commission after considering your responses as per section 50(3) and section 50(4) of the Employment Act, noted that your actions to interfere with the PSC disciplinary process to approach the Chairman of the PSC, Samuel Johnson and accept to meet Hellen Lukai John (PSC main witness) on 25 December when the discipline process is still underway, in breach of section 36(1)(a) and (b) and section 46(1) of the Public Service Act. Being a senior public servant at the same time the manager of Corporate Services Unit of OPSC, you are fully aware of the PSC disciplinary procedures and your actions as mentioned above cannot be tolerated by the Commission thus resolved to uphold its previous decision to terminate you from the service”.

18. In the pleadings, there were a number of grounds raised relating to the process by which the Commission came to consider and terminate Mrs Nasak's employment. However, in the end it came down to a narrow point, whether what Mrs Nasak had done on 25 December, in relation to Mrs John and Mr Johnson, constituted serious misconduct in that it was an attempt to interfere with the PSC disciplinary process relating to herself.

100. Damages sought and Evidence
     

7. The relief sought is set out as follows at [33] of the Claim filed on 9 May 2022:
   
   33. The Claimant claims damages as follows:
       

Particulars

8. Mrs Nasak relied on her Sworn statement for Assessment of Quantum filed on 2 September 2023.
   
9. On 19 April 2024 and 4 June 2024, she filed submissions as to quantum.
   
10. The State relied on the Sworn statement of Jonathan Iavere and its submissions filed on 3 June 2024.
    
11. I will address in turn each aspect of the relief claimed: (i) 3 months’ notice; (ii) loss of salaries; (iii) housing allowance; (iv) child allowance; (v) VNPF contribution (vi) severance allowance; and (vii) 3-times multiplier pursuant to subs. 56(4) of the Act.
    

4. The Law
   

12. Section 50 of the Act provides, relevantly, as follows:
    
    50. (1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.

...

(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

...

13. Subsection 55(2) of the Act provides as follows:
    
    55. ...

(2) An employee shall not be entitled to severance allowance if he is dismissed for serious misconduct as provided in section 50.

14. Subsection 56 of the Act provides, relevantly, as follows:
    
    56. (1) Subject to the provisions of this Part, the amount of severance allowance payable to an employee shall be calculated in accordance with subsection (2).

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

(a) for every period of 12 months – 1 months remuneration;

(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 number of months during which the employee was in continuous employment.

...

(4) 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 6 times the amount of severance allowance specified in subsection (2).

5. Claim for 3 months’ notice
   

15. It is common ground that Mrs Nasak is entitled to payment for 3 months’ notice being payment in lieu of notice of termination of her employment.
    
16. However, it is disputed what Mrs Nasak’s salary was.
    
17. Mrs Nasak’s evidence is that she received VT139,380 fortnightly (hence VT278,762 monthly), therefore for 3 months, she is entitled to VT836,280 for 3 months’ payment in lieu of notice. She attached her pay slip for Pay Period: 2101, Pay Date: 8 January 2021 as Attachment “LJN2”.
    
18. The State adduced the same pay slip into evidence as Attachment “JI2” p. 12. It submitted that Mrs Nasak’s monthly salary was VT261,280 hence she is entitled to VT783,840 for 3 months’ payment in lieu of notice.
    
19. That pay slip shows that Mrs Nasak’s fortnightly salary is VT130,640. In asserting that she received VT139,380 fortnightly, Mrs Nasak has included the VT1,840 child allowance and VT6,900 housing allowance also recorded on that pay slip. However, those are separate allowances and not part of her salary. I find, therefore, as follows:
    
    1. That Mrs Nasak’s fortnightly salary was VT130,640;
    2. At a fortnightly salary of VT130,640, the total salary in a year was VT130,640 x 26 = VT3,396,640;
    100. Hence a monthly salary of VT3,396,640 /12 = VT283,053.
20. Accordingly, I find that Mrs Nasak is entitled to VT283,053 x 3 = VT849,159 for 3 months’ payment in lieu of notice.
    

6. Claim for loss of salaries
   

21. Mrs Nasak is claiming payment of her salary withheld when she was put on half pay from the end of April 2021 to 10 June 2021, said to be 6 pay days. Under this head, she is claiming both the amount of her salary which was deducted during that period as well as her salary from the date of the termination of her employment to the date on which she secured new employment.
    
22. I will deal with the second contention first.
    
23. Mrs Nasak is claiming 3 pay days’ salary of VT820,512 before she secured new employment on 21 July 2021 with Save the Children.
    
24. However, I do not accept that Mrs Nasak is entitled to payment of salary for any period following the termination of her employment on 21 June 2021, as compensation for any unemployment following an unjustified dismissal is covered by the multiplier the Court must consider pursuant to subs. 56(4) of the Act.
    
25. Now to the first contention.
    
26. Mrs Nasak is claiming the amount of her salary deducted during the period of her suspension being VT67,062 x 6 pay days = VT402,372. On the other hand, the State submitted that the amount owed is VT391,920.
    
27. Mrs Nasak referred to her bank statement, however I consider that the better evidence as to what amount of salary was withheld whilst she was on half pay must be her pay slips for that period.
    
28. Mr Iavere attached copies of Mrs Nasak’s pay slips for the pay dates 19 March 2021 to 11 June 2021 (7 pay days) as Attachment “JI2”, pp 17-23. Those pay slips show that she was paid salary of VT65,320 on those pay dates. Accordingly, I find that Mrs Nasak received a fortnightly salary of VT65,320 on each pay date from 19 March 2021 to 11 June 2021 (7 pay days).
    
29. Given that Mrs Nasak’s fortnightly salary ordinarily was VT VT130,640, and she received VT65,320 fortnightly during her suspension, I find that VT65,320 salary was withheld therefore for the 7 pay days, she is entitled to VT452,240 payment of salary which was withheld.
    

7. Claim for housing allowance
   

30. The claim for housing allowance is disputed on the ground that Mrs Nasak continued to be paid housing allowance during the period of her suspension. I agree. Her pay slips for the pay dates 19 March 2021 to 11 June 2021 (7 pay days) in Attachment “JI2”, pp 17-23 show that Mrs Nasak continued to be paid housing allowance of VT6,900 during the period of her suspension. This was the same amount VT6,900 that she was paid for housing allowance before her suspension: Attachment “JI2”, pp 9-16.
    
31. I therefore decline to make an order as sought in relation to housing allowance.
    

8. Claim for child allowance
   

32. The claim for child allowance is disputed on the ground that Mrs Nasak received an over-payment of this allowance for her daughter who turned 18 years old in January 2019 yet Mrs Nasak continued to be paid child allowance for her, but that she owes child allowance in relation to her son for 7 pay days in the amount of VT6,440.
    
33. In her reply submissions, Mrs Nasak accepted the amount of VT6,440.
    
34. However, there is no pay slip in evidence to show the amount of child allowance that Mrs Nasak received prior to January 2019. Hence there is no evidence to support the assertions that Mrs Nasak received an over-payment of child allowance in relation to her daughter.
    
35. In addition, the pay slips show that Mrs Nasak was paid child allowance of VT1,840 before her suspension [Attachment “JI2”, pp 9-16] and continued to be paid child allowance of VT1,840 during the period of her suspension [Attachment “JI2”, pp 17-23). Accordingly, I do not accept that there was any child allowance deducted or withheld during the period of Mrs Nasak’s suspension and decline to make an order as sought in relation to child allowance.
    

1. Claim for VNPF contribution
   

36. The claim for payment of employee VNPF contribution is disputed on the ground that VNPF contribution continued to be deducted during the period of Mrs Nasak’s suspension. I agree. Mrs Nasak’s last pay slip before she was suspended, for Pay Date: 4 March 2021 shows a deduction of VT5,226 for employee VNPF contribution: Attachment “JI2”, p. 16. Her pay slips for the pay dates 19 March 2021 to 11 June 2021 (7 pay days) during her suspension show a deduction of VT2,613 for employee VNPF contribution on each pay day except that on the 16 April 2021 pay day, there was a deduction of VT16,965 for employee VNPF contribution: Attachment “JI2”, pp 17-23.
    
37. Accordingly, I find that during the 7 pay days’ period of Mrs Nasak’s suspension, a deduction was made of VT2,613 on 6 pay days for her employee VNPF contribution, and on the 16 April 2021 pay day, a deduction of VT16,965 for employee VNPF contribution, totalling VT32,643. I infer that the reduced amounts of the deductions for VNPF contributions reflected the deductions in her salary during that period.
    
38. If the amount of VT5,226 had continued to be deducted for employee VNPF contribution over the 7 pay days’ period of suspension, that would have totalled VT36,582.
    
39. The difference between VT36,582 and VT32,643 is VT3,939 hence I find that Mrs Nasak is entitled to VT3,939 for payment of employee VNPF contribution.
    

10. Claim for severance allowance
    

40. It is not disputed that Mrs Nasak is entitled to payment of severance allowance.
    
41. However, her period of employment is disputed.
    
42. Attachment “JI1” is Mrs Nasak’s letter of appointment dated 5 November 2015 from the Commission appointing her to the post of Capacity Development Coordinator at the Ministry of Justice effective from 11 November 2015. I therefore find her employment with the Commission commenced on 11 November 2015.
    
43. It is accepted that in October 2019, the Commission appointed Mrs Nasak to the position of Manager, Corporate Services within the Office of the Public Service Commission hence she was transferred to that position.
    
44. I find, therefore, that Mrs Nasak’s period of employment was 11 November 2015 to 13 June 2021, which is a period of 5 years and 7 months.
    
45. Next, the rate at which severance allowance is to be paid is disputed.
    
46. It is common ground that the Act provides that severance allowance is payable at the rate of 1 month’s remuneration for each year of service: para. 54(1)(d) and subs. 56(2) of the Act.
    
47. However, Mrs Nasak is claiming payment of severance allowance at the rate of 2 months’ remuneration per year of service totalling VT3,171,613 in reliance on a Commission circular dated 2 September 2020 [Attachment “JI6”].
    
48. On the other hand, the State submitted that the circular dated 2 September 2020 related to an earlier Commission decision dated 20 October 2017 [at Attachment “JI5”] hence the 2 months’ severance allowance referred to applied only to employees who had ceased employment on the basis of age retirement and medical retirement. Hence, in the State’s submission, severance allowance is payable at only 1 month per year of service, thus VT1,459,529.
    
49. The State made the same argument in Republic of Vanuatu v Sumptoh [2025] VUCA 9, which argument the Court of Appeal accepted.
    
50. The Court of Appeal held that the 2020 circular was only intended to change the severance for those employees affected by the instruction issued by the Commission on 20 October 2017: Republic of Vanuatu v Sumptoh at [26]. That is, that the 20 October 2017 instruction related only to the categories of cessation of employment of public servants by way of age retirement and medical retirement.
    
51. The Court of Appeal’s decision in Republic of Vanuatu v Sumptoh is binding. Given that Mrs Nasak’s cessation of employment was not an age retirement or medical retirement, I therefore find that Mrs Nasak is not entitled to payment of severance allowance at the rate of 2 months’ remuneration per year of service, but only at the rate of 1 month’s remuneration per year of service.
    
52. Accordingly, I find that Mrs Nasak is entitled to payment of severance allowance at 1 month’s remuneration (VT283,053) for the 5 years and 7 months period of her employment as follows:
    

VT283,053 x 5 years = VT1,415,265

+ (VT283,053 /12) x 7 months = VT165,114

Total = VT1,580,379

11. Claim for 3-times multiplier pursuant to subs. 56(4) of the Act
    

53. Mrs Nasak is claiming a 3-times multiplier pursuant to subs. 56(4) of the Act for ‘defamation, stress and loss of employment.’
    
54. Mrs Nasak’s claim in defamation was dismissed hence she is not entitled to damages for defamation: Nasak v Republic of Vanuatu [2023] VUSC 142 at [109](a).
    
55. However, as pleaded, she seeks a multiplier of her severance allowance for the stress and loss of employment that she suffered due to her unjustified dismissal by the Commission.
    
56. Mrs Nasak’s evidence as to the multiplier is as follows:
    
    12. I claim three times multiplier because the initial charges against me were not proven but the allegations caused me stress and humiliation for something that was untrue. I then lost my job on another set of allegations.
    13. I had 3 loan repayments to make monthly and I was physically, emotionally and financially drained:

(i) Loan at BRED Bank VT70,000 per month (refer to pay slip)

(ii) ANZ Bank VT10,000 per month (refer to bank statements)

(iii) NBV VT93,140 per month (see Attachment “LJN5”)

14. I also had school fees to pay for one of my children and other expenses (see Attachment “LJN6”).
15. I had a good employment record with public service before being terminated so I say I was unjustly treated by PSC. PSC could have transferred me to another ministry but chose to terminate me. My family and I suffered greatly during my time of hardship until the judgment of the Court came out recently.
57. The State cited Malere v Vanuatu Broadcasting and Television Corporation [2009] VUSC 164 (‘Malere v VBTC’) and submitted that the Court order a multiplier of 1 as Mrs Nasak found alternate employment only 1 month after her termination.
    
58. It also submitted that Mrs Nasak has failed to adduce evidence as to her suffering stress, humiliation and hardship. With respect, that submission flies in the face of Mrs Nasak’s evidence. I accept and find that she suffered stress and humiliation due to the Commission’s unjustified dismissal.
    
59. Finally, the State submitted that Mrs Nasak’s loans are her personal liabilities that should not form the basis for her claim for damages. I agree, however, I take the loans into account as contributory factors to the stress that Mrs Nasak suffered.
    
60. In reply, it was submitted for Mrs Nasak that in terms of the factors discussed in Malere v VBTC, that she had a good work record, that she had not been given any previous warnings, that the unjustified dismissal was at the higher end of the scale due to the Commission disregarding its own Disciplinary Board’s findings and recommendation, and putting the State to liability. However, I consider that it must be accepted that the Commission did not subject Mrs Nasak to physical or verbal abuse. It was also submitted for her that news about her disciplinary case was published on social media and the local news causing stress and humiliation, however there was no evidence that the Commission was responsible for the publication of that news or social media posts. I take the publicity generated into account as another contributory factor to the stress that Mrs Nasak suffered.
    
61. In Vanuatu Broadcasting and Television Corporation v Malere [2008] VUCA 2 at p. 5, the Court of Appeal stated as follows:
    

There are two possibilities with regard to the meaning of Section 56(4). In some cases it has been treated as a reflection of the circumstances which lead to the dismissal and in others it has been treated more as compensatory for a person who is unable to obtain work. Whether in this case it matters which of the approaches is adopted we do not know and, it is possible that under either approach a good case could be advanced, but we have no option but to allow the appeal on this ground and the issue will have to go to trial if there is no agreement reached.

62. In Republic of Vanuatu v Mele [2017] VUCA 39 at [61]- [62], the Court of Appeal stated as follows:
    
    61. Here the failures of the PSC in dismissing Mr Mele were serious. As we have noted the PSC effectively set aside Mr Mele’s explanations as to the allegations against him. When faced with concern expressed by the investigating committee that they had insufficient time to investigate some allegations the PSC gave no additional time but found those allegations proved. The PSC reached conclusions which simply had no factual basis. And finally the PSC gave no effective reasons for their conclusions.
    62. As to Mr Mele’s future the unlawful dismissal removed him from a very significant job in the Public Service. His loss of future employment opportunities and income would inevitably be significant. These factors easily justify an uplift of 2 times.
63. It is common ground that Mrs Nasak found new employment a month after the Commission dismissed her. Even so, the unlawful dismissal removed Mrs Nasak from a significant job in the Public Service, as a manager within the Office of the Public Service Commission. She had a good work record. She had not been given previous warnings.
    
64. I turn to the circumstances which lead to Mrs Nasak’s dismissal. Following the Commission’s urgent meeting on Christmas Eve, 24 December 2020, it suspended Mrs Nasak. There was immediate publicity in the news and on social media. The Disciplinary Board recommended her reinstatement to her position as Manager, Corporate Services or that she be transferred to another Ministry. Instead, the Commission dismissed her. Mrs Nasak was suspended on initial charges (of engaging in unacceptable behaviour with another employee) which were not proven but then, was dismissed on another set of allegations (alleged attempt to interfere with the Commission disciplinary process relating to herself) which this Court and the Court of Appeal have held did not constitute serious misconduct.
    
65. I consider that the foregoing factors justify an uplift of 2 times the amount of her severance allowance (VT1,580,379 x 2) = VT3,160,758. The 2-times multiplier is a reflection of the circumstances which lead to Mrs Nasak’s dismissal.
    
66. The State raised in its submissions an alleged debt owed by Mrs Nasak relating to an outstanding imprest in her name which she has not retired in the amount of VT1,494,500. Mr Iavere attached an Imprest Payment History for Ms Nasak as Attachment “JI7.”
    
67. However, there was no counter-claim for this alleged debt. It is therefore unfair to make an issue of this matter in submissions as to damages and I will not take it into account – see Shefa Provincial Council v Timbaland Ltd [2025] VUCA 30 at [17]-[19]. For those reasons, I decline to make any deduction as sought in relation to the imprest said to be outstanding.
    
68. This concludes the Court’s assessment of damages.
    

50. Result and Decision
    

69. The Defendant is to pay the following to the Claimant totalling VT6,046,475 (the ‘judgment sum’):
    

70. Interest is to be paid on the judgment sum at the rate of 5% per annum from 13 June 2021 until fully paid.
    
71. Costs must follow the event. The Defendant is to pay the Claimant’s costs on the standard basis as agreed or taxed by the Master. Once set, the costs are to be paid within 21 days.
    

13. Enforcement
    

72. This matter is listed for Conference at 1.30pm on 18 November 2025 for the Defendant to inform the Court: (i) that it has paid the judgment sum or (ii) to explain how it intends to do so. If there is no satisfactory conclusion, the file will be transferred to the Master for enforcement action.
    
73. For that purpose, this judgment must be personally served on the Defendant and proof of service filed.
    

DATED at Port Vila this 25^th day of September, 2025

BY THE COURT

.................................................

Justice Viran Molisa Trief