Limo v Mendikwae Ltd [2007] PGDC 111; DC641 (12 December 2007)

DC641

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

DCCi 357 of 2006

BETWEEN

SAUTE LIMO
Complainant

AND

MENDIKWAE LIMITED
Defendant

Goroka: F MANUE
2007: November 18, December 12

CIVIL - Employment law – claim for outstanding leave and salary entitlements – whether the termination agreement constitutes outstanding leave and salary entitlements.

Cases Cited
Nil

References
Nil

Counsel
Complainant: In Person
Defendant: Mr. Brian Koningi of Koningi Lawyers for the Defendant

12 December 2007

REASONS FOR DECISION

F Manue: This is a claim by the complainant for leave and salary entitlements against the defendant for the sum of K3, 427.87. The complainant also claims interest, costs and any other orders the Court deems fit.

2. The issue is whether the complainant is still owed his leave and salary/ final entitlements.

3. Evidences

Both parties filed their affidavit evidence. The complainant filed his affidavits, Annexure to it was the “Termination Agreement”, and final payout calculation by the labour office.

4. The defence filed affidavits by Mr. Alfred Kerenga, the Company secretary, Mr. John Siune, the Company Operations Manager and Mr. John Biki, the Legal Officer of the defendant.

5. After filing their respective affidavit evidences, both parties agreed for a trial date which was set.

6. On the trial date both parties agreed to make final submissions, instead of formally giving evidence. To make things more difficult for the purpose of assessing the affidavit evidence, both parties did not give notices pursuant to Section 35 and 36 of the Evidence Act and so all the witnesses were not examined.

7. I make these comments as it is now a task entirely left for me to ascertain and establish whether the complainant has been paid his final salaries and leave entitlements in view of these processes.

8. Having considered all the evidence and the submissions, it would seem to me that the parties have not joined issues. The complainant on one hand while not denying that he did sign a Termination Agreement and received K800.00 but not as his final salaries and leave entitlements. He argues that the K800.00 was not his final salaries and leave entitlements.

9. By contrast, the defendant persists that the Termination Agreement was signed and that the complainant accepted and received K800.00 as his termination pay.

10. Through counsel, it says that by Section 16 of the Employment Act, the complainants period of contract was from fortnight to fortnight.

11. And by Section 34 (a) (d) of the Employment Act, the complainant was entitled to 4 weeks notice pay on termination. It argues that the defendant has been generous enough to have paid K800.00 which constitutes 2 months termination pay.

12. The defence is relying on the same agreement, it seems when it made a non suit application upon which I had overruled on 19 December 2006, which I also adopt in this decision.

13. The issue at hand is not whether the complainant was terminated unlawfully. The complainant is not disputing his termination. He has accepted the reasons and explanations of his termination. He is aggrieved that he has not been paid final salaries and leave entitlements which is the crux of his claim. If he was suing for unfair dismissal or unlawful termination, then grounds under Section 36 of the Employment Act would have to be satisfied. This of course is settled law.

14. The defence has submitted that the employment of the complainant was on a fortnight to fortnight basis as sanctioned by Section 16 of the Employment Act and his continual employment at the expiration period renewed. This arrangement is legalized by Section 17 of the Employment Act.

15. The complainant has not rebutted to this point which I infer that he is not concerned about whether his employment was an oral contract of service or not.

16. He stated that he commenced employment with the defendant on 18 March 1998 to the 03 May 2006 when he was terminated. He started as a general labour to being a Supervisor at the time of his termination. At his termination, he signed a Termination Agreement and received K800.00.

17. I have purused the document but I fail to see that the agreement prevents or bars the complainant from taking further action, should he disagree with whatever he has been paid. This was the ruling in the non suit motion, as well. I notice that the document was copied to the Provincial Labour Office, Goroka. It is inferred that this document may have been cited when the Labour Officer did “Adjustment of final payout” calculation by way of letter to defendants Managing Director.

18. This letter which is annexed “B” of the complainants affidavit was not an issue, nor was its authensity questioned and so it was accepted as a fact.

19. And so when the defendant says that the complainant has been given due leave and his entitlements paid throughout his employment period, this contention could not be verified as the defence elected not to examine either the complainant or the author of the “Annexure B” letter. Neither were they prepared to have their witnesses cross examined by the complainant.

20. It is even harder for me to ascertain the question as the complainant did not lighten me on the issue in his affidavit evidence. The only light shed on this question is from the “Annexure B” letter to the defendants Managing Director. Obviously, that calculation was based on the information given by the complainant. Leave credits and pro-rata leave were calculated from 8 years of employment.

21. As stated earlier this fact of the calculation is not disputed. Nor was there rebuttals in detailed particulars. I therefore accept the complainants version that he had not been given leave and entitlements for those years.

22. As alluded the complainant is not challenging this termination. On the same token, the defendant has not, it seems, kept records of the oral contract of service with the complainant as required under Sections 10 and 15 – 17 of the Employment Act.

23. In my view, where an oral contract of service is envisaged to continue for a duration of time longer than a fortnight to fortnight basis it is important and imperative that such records are kept for the purposes of calculating leaves entitlements and the likes and for related purposes. This information becomes crucial when there is disputes as in this case arise.

24. The defence argument is deviating from the thrust of the issue, that he is due for his final and leave entitlements and has not replied to this pleading. Section 36 of the Employment Act issues are different from what the complainant claims.

25. On that basis and on the balance of probability I find that although the complainant has been paid K800.00, that is monies for termination in lieu of notice and that as per the calculation by the labour office, it is to be deducted from the calculated claim of K4, 227.87 leaving with a balance of K3, 427.87.

26. I award the claim to the complainant on the believe that it has been proven on the balance of probabilities.

Complainant: In Person
Defendant: Mr. Brian Koningi of Koningi Lawyers for the Defendant