Tuai v Christian Life Center [2008] PGDC 106; DC829 (26 August 2008)

DC829

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Grade V Civil Jurisdiction

DC NO 2167 OF 2007

ELDER TUAI
Complainant

V

CHRISTIAN LIFE CENTER
1st Defendant

PASTOR CHARLES LAPA
2nd Defendant

SIMEON IHRAH
3rd Defendant

NOAMI POIA
4th Defendant

STANLEY BARATAI
5th Defendant

PORT MORESBY: Pupaka, PM

2008: 26th August

Civil proceedings – Employer /Employee relationship – Claim for balance owing as a result of underpayment of salary plus leave entitlements upon termination of employment – Ex parte hearings – Defendants’ failure to defend proceeding is no acknowledgement of liability – Proof of matters within the knowledge of complainant – Pivotal evidence of a promise to pay extra or higher wage non existent so that head of claim cannot succeed – Complainant entitled to leave – Assertion that no paid leave was grated or taken sufficient to establish that claim in the circumstances

The Complainant in person
No appearance of the Defendants

5th February 2008

PUPAKA: The brief nature of the complainant’s case as outline by the Summons & Summons upon Complaint is this:

On or around 17th December 2002 the complainant commenced work as a general laborer, gardener and security guard for the 1st defendant at its ‘Praise Center’ in Waigani, NCD. The complainant says he resigned on 17th December 2004 as a result of "frustrations when the Church neglected and did not honor its promises". In this suit the complainant sues for what he says are the balance of money due to him in salary based on a promise that he was to be paid K247.00 per fortnight. The complainant says he was actually paid K94.50 per fortnight. He now sues for two years worth of underpayment at K152.50 per fortnight which works out to K7, 930.00 for the two years, i.e., for the years 2003 and 2004.

The defendants have utterly failed to either appear in Court or defend the proceedings in any way. However I should state for the record that the defendants’ failure to defend is no acknowledgement of liability. The complainant, like any other such persons as himself, is always obligated to provide evidence of his claim and or any loses in order to secure a favorable exercise of Court discretion.

The complainant was granted leave to present evidence ex parte. He was also specifically advised to provide evidence of the "promise" to pay him higher wages. He was informed that he needed to show evidence of a binding agreement between himself and the 1st defendant. The complainant was repeatedly advised in court that he had to either produce a letter of advice of a higher pay or copy minutes of any Church Board resolution or meeting or secure the testimony of a member of the church or congregation or someone able to be legitimately possessed of that relevant evidence.

Evidence

The complainant has filed several affidavits. In them he has generally complained about the way the Church treated him. He has testified that he was paid K94.50 only for being a general laborer, a gardener and a security guard for the 1st defendant’s premises. The complainant reckons that he was overworked. If it is any comfort I must say K94.50 is hardly enough. It cannot be enough for doing anything, let alone doing all that the complainant says he did for the defendants.

However that is not to say that these assertions, on their own, amount to proof that the complainant was entitled to a higher salary. He says he was "verbally" informed that his salary was to be K247.00 per fortnight. Yet the complainant shows no proof of this assertion. Even if the complainant does indicate as to how he was informed of the "promise", he must produce evidence to show who, where and when the promise was made to him.

For instance the complainant may want to secure the testimony of a member of the Church board who made that decision. Alternatively he may wish to get someone in the Church, perhaps a congregation member, to testify of the "promise" made to him. If such a congregation member’s knowledge is from an appropriate or credible source there would be no reason for the Court to not accept it and rely on it. The complainant could do better too. He could produce a letter of advice or a copy of a minute of Church Board meeting or resolution which refers to a decision to pay the complainant higher salary. The complainant was paid something, notwithstanding the fact for the moment that the money paid to him was objectively inadequate, i.e. if he was fully employed as he says he was. It is not as if he was paid nothing. In circumstances like that the complainant has to show that he was entitled to a higher salary. He can only do that by evidence of such entitlement.

The point being made here is that the complainant must show minimum evidence of his having become entitled to a higher salary. Sad to say though there is no such evidence. This Court cannot relay on the unsubstantiated and blank assertion of this complainant that he was promised higher salary. That therefore puts paid to the complainant’s claim for underpayment of salary. I would dismiss that head of claim.

The complainant further says he was never granted leave for two years that he worked for the defendants. He says he is owed leave for the two years. He does not say how much the two years’ leave entitlement works out to in money terms but he says he was neither granted leave nor did he take any.

Under undefended and ex parte hearing circumstances the complainant need only assert what he is entitled to as a matter of law. He is entitled to leave if he was continuously employed as he says he was. That, I must say, is not the same thing as being entitled to a higher salary. Leave is something employees are presumed to be entitled to as a matter of law, on the bases of undisputed assertion of continuous employment for a period of 12 months or over. In the circumstances I must find that the complainant is entitled to leave accrued over two years of continuous and unbroken employment.

As I alluded to above, as to how much money is actually owed in lieu of accrued, untaken leave is uncertain. In the circumstances there will be a general finding to that effect. The money value can be worked out in due course, perhaps with the in put of the Labor Office.

Conclusion

For all of the foregoing I order that the 1st defendant pay the complainant’s leave entitlements for the years 2003 and 2004. However, for the reasons given, I must dismiss the complainant’s claim for money due to him as a result of underpayment.

The complainant shall have the nominal costs of this proceeding. The costs, only nominal as it must be, shall be checked and vetted by the Court.

_____________________________________________

The Complainant in person
No appearance by the Defendants