Bilision v Finance Corporation Ltd [2002] PGDC 8; DC149 (12 July 2002)

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Civil Law – Employer/Employee relationship – Contract of employment - Employment Act chapter No. 373.

Law of Evidence – Affidavit evidence – right to cross-examine deponent – Lack of defence evidence generally – Presumption of good business sense etc.

M. M. PUPAKA PM: The judgment in this has been reserved for some time, since the 2nd of May 2002. Having been engaged in quite a few other administrative matters and also due to the National Election related disturbances caused to court schedules, I could just not get to work on this. However I have perused the evidence on the file and the respective submissions and what follows hereunder is my carefully considered judgment in the matter.

The complainant, a former employee of the defendant sued the latter for the following:

(a)	Reimbursement of airfares	K237.00
(b)	Underpaid salary for 28 fortnights at K100.00 per fortnight	K2800.00
(c)	Underpaid sales trip allowance for 26 fortnights at K100.00	K2600.00
(d)	Top sales representatives as per company policy	K1000.00
(e)	Bonus of K2.50 per application for 252 applications received by complainant	K630.00
(f)	One week pay outstanding	K93.00
(g)	Two weeks pay in lieu of notice	K186.00
(h)	Plus 8% interests pursuant to statute and costs of these proceedings
	Total	K7, 546.00

Evidence in this matter is chiefly by way of an affidavit filed by the complainant, which is dated the 05/02/01. He tendered that affidavit as his main source of evidence when his case opened on the 03rd of April 2002. The complainant further testified in addition to the contents of his affidavit and Mr. Kak for the defendant cross-examined him at some length as to his evidence generally. The complainant called no other evidence. On the other hand the defendant's case is, in total, essentially the challenge mounted against the complainant's case by way of its counsel's cross-examination of the complainant. It adduced no evidence. It failed to produce in court and make available its sole witness – a Mr. Tony Vaea – for purposes of cross-examination. Due notice had been given (in court on the 03/04/02) by the complainant that he would object to the use of Mr. Tony Vaea's affidavit unless the deponent was produced for cross-examination. Therefore a defence request to have tendered into evidence Mr. Tony Vaea's affidavit was refused on the 17th of April 2002. The defence adduced no evidence of any other sort. Both sides have filed written submissions, which I have considered carefully.

On the evidence I must accept that the complainant is a former employee of the defendant. I am also satisfied that the complainant was terminated from his employment for being absent from work for 7 days without approved leave. The complainant explained at length as to why he was absent. However the plain simple matter of the fact is that his absenteeism was never, either prior to the absenteeism or after, approved or endorsed formally as leave by any authorized officer of the defendant. I must therefore find no fault with his termination.

The complainant has claimed a string of outstanding entitlements consequent on his termination. For convenience and ease of understanding I shall follow the order in which the same have been outlined in his statement of claim, as reprinted in the forepart of this judgment.

In the absence of any evidence to the contrary I would allow this claim. It is clear the complainant was at least recruited at Port Moresby. Whether he commenced work with the defendant in Port Moresby before travelling to Mt. Hagen is not clear. However I do not think whether or not the complainant commenced work at Port Moresby is of any consequence when clearly he was recruited at Port Moresby. The defendant, of its own free will and for its own purposes posted the complainant to Mt. Hagen. Under normal circumstances the defendant, or any employer for that matter, would be expected to send, recall, or transfer employees between locations and sites at the employer's expense.

If it was a condition of employment that the complainant pay his own fare to Mt. Hagen, with no chance of a refund, the defendant should produce evidence to negate the complainant's assertion as to what clearly is a common employer responsibility. Short of any contrary defence evidence, the complainant's assertion must stand in relation to what is only a regular employer responsibility in matters of employment.

This head of claim is for a sum of K2800.00. This claim seems to be based on an assertion of the complainant that he was entitled to be paid more than what he was paid by the defendant. He seems to have commenced employment with defendant on a starting salary of K150.00, which increased marginally to K175.00 and eventually K186.00 at the time of his termination. Now the complainant contends that he was on a far bigger salary of K300.00 to K400.00 per fortnight elsewhere, prior to his commencement with the defendant.

From the outset I fail to see the justification for this claim. The complainant knows how much he was paid every payday. In the same way, if he was ever promised any increase – more particularly that there would be backdated payments – he would know. In that event there would have been letters and memos or other documentary advises. The complainant should provide proof of such claims. He just can not make a bold assertion that he was entitled to be paid K100.00 extra or K200.00 or what ever. Even if there was some promise of an increase of K100.00 at some stage, why the claim for 26 fortnights? He can only have been entitled the extra K100.00 from the day the increase came into effect. He merely says in paragraph 7 of his affidavit that he left his previous employment because Mr. Tony Vaea promised him "better terms and conditions". The complainant must provide evidence which must both justify and prove his claim of an extra K100.00 every fortnight for 28 fortnights. Needless to say mere bold assertions are never good enough. I dismiss this head of claim as being baseless.

A total of K2600.00 is claimed under this heading. However there is not a shred of evidence what this claim is for or all about. Nowhere is this mentioned or referred to in the complainant's affidavit. I am obliged to dismiss this head of claim outright and I do.

In the affidavit this head of claim is stated as "Top sales rep award as per company policy". It is for a total of K1000.00. I am not quite sure if the claim is pleaded properly however in the circumstances I would have no trouble accepting that it outlines a specific head of claim. However I do have difficulty concluding as to whether there is evidence on this aspect. One understands from the affidavit (paragraph 4 & 5) that the complainant took a lead role in the defendant's opening up operations in the Highlands region. He also says he topped the "SKUL Pikinini Loan" application collections after having collected 252 such applications.

If the complainant was given an award or certificate or something tangible to show that he was top gun in sales and employee rating he should produce it. Also if there is such policy as remunerating top employees in the manner the complainant asserts he should give evidence of it. In court everything is based on evidence. There can never be speculative judgment based on bare assertion. No doubt the complainant may have been a model employee but if there has to be money paid for being so, there must be evidence of both the top rating and the company policy that enabled or gave rise to the right to be paid money for top employee billing. Nothing short of evidence of these would suffice. Therefore I dismiss this head of claim as well.

E. Bonus of K2.50 per application for 252 applications received by the complainant.

The complainant also says he was entitled to what he says is a bonus of sorts of K2.50 per application for the 252 applications he collected, for a total claim of K630.00. He says it is also based on another company policy, which was valid and in place at the time too. Under cross-examination the complainant admitted that the company later changed the policy. He had stated in his affidavit that K2.50 was to be paid for every application collected. Then when pressed to admit that that was not true, he conceded that the company later changed the policy to one to pay K2.50 for every "SKUL Pikinini Loan" application processed. He also said the company changed the policy when it was petitioned by employees to pay the bonuses of K2.50 per application collected.

I do not think the complainant or any other sales representative would be entitled to commissions or bonuses only merely for applications collected. It does not make business sense. Under circumstances where there is no clear and concise evidence as proof of such a claim no reasonable tribunal would allow that claim. Just because the defendant has adduced no evidence does not warrant this court or any one else to presume that the defendant made decisions that made no business sense. The defendant is a finance company. It was always motivated and driven by the profit motive and margin, just as any other company in business. On the other hand it is only logical to conclude that the defendant may have induced its employees to work harder and generate business, by having in place a scheme of bonus payments for loan applications processed. It makes perfect business sense.

In my view what the complainant should do is provide evidence of non-payment of bonuses for applications processed, as it must have been the real company policy. Here he only refers to a total number of applications collected. In any case the head of claim in question is contested. I must dismiss this head of claim as being not proved and or alternatively on the bases that the complainant can not obtain judgment on the bases that the defendant might have made an illogical business decision.

This is for K93.00 that the defendant did not pay the complainant. There is evidence that the complainant was at work after his unauthorized leave. He was allowed to report to work for about a week before being informed that he was being terminated. If the complainant was paid for all work done in that week then just about most senior officers in the defendant should know of that fact. It is information not restricted and peculiar to only one Tony Vaea. The defendant could have easily negated this claim if it wanted to. It has not. I think all presumptions are in the complainant's favour. It is, under normal circumstances, regular employee entitlement. I would allow this head of claim.

The same goes for this head of claim. Just as the defendant has not negated what can only be evidence within its knowledge and possession the benefit of its failure belongs to the complainant, who has fairly given evidence on the point. I would also allow this claim – it is for K186.00 – for the same reasons as I would the claim immediately preceding this.

This brings the total allowed of all heads of claim to K516.00. I order that judgment be entered for the complainant in that sum – K516.00.

I would allow interests on the total judgment of K516.00, at the statutory 8% from the date of issue of process to the date of satisfaction of judgment. I also order that costs of the complainant be paid by the defendant. There seems to have been initial legal representation on behalf of the complainant and none towards the later and concluding stages of these proceedings. In the circumstances I order that cost be taxed, unless otherwise agreed upon by the parties.

Papua New Guinea District Court

Bilision v Finance Corporation Ltd [2002] PGDC 8; DC149 (12 July 2002)