Ketano v District Administrator [2002] PGDC 16; DC240 (4 July 2002)

DC240

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 89 OF 2000

BETWEEN

Masis Koim Ketano
Plaintiff

V

District Administrator
First Defendant

Provincial Dept. Of Agriculture & Livestock
Second Defendant

Dept. Of Western Highlands Provincial Government
Third Defendant

The State of Papua New Guinea
Fourth Defendant

MT. HAGEN: APPA, P.M.
2002: 4TH JULY

JUDGMENT

This is a claim for unpaid entitlements. Complainant said he was employed a Security man by the Department of Primary Industry (DPI) to look after State properties at Baiyer District - DPI Station. He started in 1992 until 1995 when DPI Authorities asked for lay off of employees due to funding problem. Most others were laid off but complainant was retained to look after DPI and State assets from vandalism or theft. He continued with his duty from 1995 till time of taking out summons (August 200) without any form of payment from the defendant. Many written and verbal request were made by the DPI Manager of Baiyer Mr. Francis Kilipi for payment but nothing was done about it. Mr. Kilipi also did a letter to the Provincial Administrator in 1997 informing about the need to keep complainant to look after DPI assets and also asked for funding.

It appeared on a document (hand written) that following the above request by Mr. Kilipi a verbal approval was given by Mr. Pumba Thomas for the engagement of security personnel to look after DPI Assets. This hand written notation is found on copy of Mr. Kilipi’s letter to the Administrator in 1997.

In defence to the claim, there is a general defence filed to say the claim was frivolous and vexations and lacked particulars so should be dismissed falling short of obtaining evidence (affidavits) from authorities such as the Administrator of Western Highlands or agents and DPI bosses in light of the issue of whether or not there was a contract of employment of the complainant.

There was one affidavit filed by Mr. Ogia Makinti, the District Administrator of Mul – Baiyer and relied upon in defence. Unfortunately the affidavit of Mr. Makinti was referring to someone called Kamsoa Peniwa which has no resemblance or relevance to the complainant so it is of no help.

It was agreed during trial on 24/07/2001 that Mr. Kilipi was to produce documents of his employment with DPI and authority to employ casual employers including complainant. This, Mr. Kilipi has complied with and produced documents to show his appointment as Rural Development Officer in -charge of Baiyer DPI Station and his financial delegated powers to spend or approve funds up to K500.00 to pay casual workers etc. I find that Mr. Kilipi had the authority to engage casual workers like the complainant provided funds were made available by the second defendant.

I also found from evidence that when Mr. Kilipi had notified the Administrator on the necessity to retain complainant and others to look after State assets there was no objection from the respective authorities so complainant continued to provide services for four years – 1995- 1999 without being paid. He did so on the assurance of Mr. Kilipi that he would be paid whenever funds became available.

In Law, Section 10 of the Employment Act, in the absence of any other agreement in place, a casual employee is deemed to be an oral contract employee if employed by same employer for more than six days in any one month.

The in action on the part of the respective authorities (the defendants) in allowing the complainant to continue providing security services implied that he was on oral contract of employment. If he was not entitled to something in Law, there is sufficient evidence to warrant a redress in equity under the principle of quantum merit, as far as services provided.

On the balance of probabilities I find that liability is established.

On the issued of quantum, complainant claims a total of K8,430.76. The break up of which was –

(a)	Unpaid wages at K50.00 F/N for 4 years amounts to	K5,200.00
(b)	Annual Leave assessed at	K 525.00
(c)	Pro-Rata Long Service Leave at	K 305.76
(d)	Personnel expenses (reimbursement) at	K2,400.00
	Total:	K8,430.76

There being no written contract of employment we cannot be sure of the exact terms and conditions of employment so to award the full claims above may not be satisfied. There was no dispute that complainant was employed on casual basis on a basic salary of K50.00 per fortnight. Complainant claims he had worked without pay for four years and assessed his dues at K5,200.00. There was no evidence or record on daily work attendance so I doubt very much if he had worked daily following public service time to warrant the full award. I therefore made a reduction on this leg of claim by K1000.00.

For annual leave pay, I allow for same at K525.00. For claims (c) and (d) I am not sure if he was entitled to such claims so the same are not allowed. In regards personal expenses the amount claimed is at K2,400.00 a substantial amount but lacked particulars and or proper proof to sustain. He is only entitled to the nominal cost of the proceeding like summons fee, cost of preparing court documents, PMV fares while attending court which are yet to be assessed.

In the final resume the complainant was entitled to a global figure of K4,725.00 in the principal claim plus 8% interest on it to run from date of summons to judgment date (K ) and costs of the proceeding. The judgment debt is to be settled by the Department of Western Highlands through the Primary Industry Division.

Self Appearance: Complainant
Paulus M. Dowa Lawyers: Defendant