Limo v Mendikwae Ltd [2006] PGDC 9; DC506 (19 December 2006)

DC506

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 357 OF 2006

BETWEEN

SAUTE LIMO
Complainant

AND

MENDIKWAE LTD
Defendant

Goroka: F Manue
2006: December 19

Cases Cited
1. Mike Lipu and Chris Anders –v- PNG Motors Ltd, App 353 of 2004

References
1. Employers Act, s 36

Counsel
In Person, For The Complainant
Mr Koningi, For The Defendant

December 19 2006

RULING ON A MOTION

F Manue: This is a motion by the defendant to dismiss a complaint made against it for “outstanding leave and salary entitlement”, as they say that there is no cause of action. The defendant relies on an “agreement” signed between the parties and more particularly the last clause of the said agreement, which is an Annexture “A” of Mr Kerenga, the company secretary affidavit.

2. It reads:-

“Em tasol yu yet olsem memba bilong NASFUND so yu mas apply long kisim contribution moni bilong yu na kampani lusim yu wantaim 2 days fortnait pei bilong yu olsem K800.00 cash”.

3. In my view the clause quoted does not create an indemnity against further payment or lodging for the complainant’s full entitlements. It is not to be read in isolation of the whole content of the article. The article attempts to spell out reasons to why the workers in a particular shop of the defendant are being laid off or terminated.

4. The complaint is for “outstanding leave and salary entitlements”.

5. This could possibly mean that the complainant was not paid all his leave and salary entitlements and is doing so for those entitlements.

6. Secondly the defendant argues that the relationship between the parties was based on a fortnight to fortnight basis. Defendant submit through counsel that there is no written contract between them and therefore the employer has the right to fire the employee anytime provided that any grounds under s 36 of the Employers Act is satisfied. The authority for this leg of the submission is Mike Lipu and Chris Anders and PNG Motors Ltd, App 353 of 2004, by Batari J, an unreported judgment.

7. I have perused that judgment and in my view issues raised in that case is different to this case.

8. In that case the respondent had sued in the District Court for “unlawfully, unfairly and without reasonable cause terminated from employment”.

9. The argument was based on this issue when by law s 36 of the Employment Act settles the issue.

10. In my view the instant complaint is not for unlawful and unfair termination but for his “outstanding leave and salary entitlements”.

11. In the cited case his Honour stated that “An employee is entitled upon termination of employment to entitlements lawfully due to him from the employer”.

12. His Honour remitted this issue back to the District Court for determination. In the current case, this is precisely what the complainant claims in this court for due leave and salary entitlements.

13. I therefore am of the view that there is a cause of action for the complainant to pursue.

14. For the given reasons, the motion be dismissed and that the substantial matter proceed to trial.

Lawyer for the Complainant In Person
Lawyer for the Defendant Koningi Lawyers