Mai v Timbi [2004] PGDC 40; DC365 (12 March 2004)

DC365

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 96 OF 2001

BETWEEN

Henry Mai
Complainant

V

Gabriel Timbi
First Defendant

Roim Roim Limited
Second Defendant

Mt. Hagen: Appa - Principal
2004: 07th January, 12th March

Judgment

This is a complaint on unpaid entitlements. The complainant claimed that he was employed by the Defendants in the Coffee Business as a casual worker in 1974 and was later promoted to supervisor but was not properly paid his entitlements when he was terminated in 2000. He said he started off with Dobel Farming Ltd from 1974 to 1992 when Dobel Farming went into receivership. He then continued with the new company – Roim Roim Ltd in 1994. His claim was based on annual leave for 20 years, Pro-rata service leave and weekend overtime. However, he did not specify the actual amount he asked for in the summons and complaint. He relied on a calculation done by the Labor Department. There is already a defect here because he did not quantify the claim based on facts.

The defence put up argument that there was no cause of action because the complainant was not a permanent employee. The nature of employment being a seasonal one, depending on coffee season did not require continuous employment. The Employment Act stipulates that continuous employment rests where an employee was not absent from work for three months. In the present case, there was no work when coffee season ends. Section 47 of the Act regarded the status of the complainant as piece rate worker. Defendant had produced employment records showing that complainant was employed on casual basis and was paid his normal fortnightly wages. There was no dispute that complainant left the employment and decided to sue the defendants some three years later.

I have considered both sides of the stories but was not satisfied that complainant had proven his case. I do agree with defence submission that complainant was a seasonal employee and as such he was not entitled to the relief sought in the summons.

There is also documentary evidence from the Labour Department that they have made a mistake in endorsing the industrial complaint and retracted the calculations done for the complainant. There being as other basis for the complaint, the claim had no basis, no cause of action existed. The other inconsistency noted in the complainant’s case was that in his affidavit, he stated that he was paid fortnightly wages for 26 pay days all year around but his pay sheets produced by the defendant showed that he was on pay roll when coffee season started about February/March and was off the pay roll when season ended about August/October. That goes to confirm that he was not a permanent employee entitled to the claims. There were other deficiencies or defects in the complainant’s case but what I have alluded to above are sufficient not to ground the claim.

In the given premises, I dismissed the proceeding with cost awarded to the defendants. The defendants are discharged from further liabilities.

In Person: Complainant
Kunai & Co. Lawyers: Defendant