Tugura v S & B Engineering Ltd [2008] PGDC 19; DC681 (2 May 2008)

DC681

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

DCCi 70 of 2007

BETWEEN

PATRICK TUGURA
Complainant

AND

S&B ENGINEERING LTD
Defendant

Tabubil: P. Monouluk, SM
2007: 20 December
2008: 31 January; 06, 08, 12, 14 February; 02 May

LAW OF EMPLOYMENT – Former employee sues for unpaid entitlements after eight (8) years of continuous service – Employer admits employment by employee – Employer insist employee was a ‘casual’ at all material times – By virtue of the law employee deemed oral contract employee – Employer obliged to produce record of employment – Failure to do so employee at liberty to have his claims brought through, subject to reasonableness and accepted practices.

Cases cited

1. Peter Kirin and KK Farmers v. John Paroda (2004) N2599.
   

Reference
1. Employment Act Chp 373, ss.10 & 15.

Counsel
Complainant in person.
Defendant by Mark Raison Kopunkali

02 May, 2008.

1. P. Monouluk, SM: This is a claim for damages by the complainant Patrick Tugura who was a former employee of the defendant company S&B Engineering Ltd here in Tabubil.

2. The complainant is claiming K9, 691.27 as outstanding entitlement owed to him soon after the company wound up operations in 2004 leaving him and many other employees without any form of employment and their entitlements outstanding.

3. The complainant claims that he had worked with the company for almost nine (9) years and up to the time of it ceasing operation in 2004 the company had not paid his outstanding entitlements in the form of annual leave accruals, leave airfares, and pro-rata long service leave totaling up to the sum as stated above.
4. The company, on its part, does not deny having employed the complainant, however it insisted that at all material times the complainant was employed as a ‘casual’ and therefore is not entitled to those claims. Furthermore it said that there is no evidence adduced to confirm that the complainant was in fact a permanent employee at the time of his discharge.

5. In addressing this issue I must say that from my assessment of the evidence it is clear from the respond by the company that the complainant was in fact an employee with the company and from the evidence by the complainant it would seem from the document authored by a John Nom, Team Leader, Fire Safety, S&B Engineering Ltd that the complainant had worked for the company for eight (8) years since May, 1995. That point is further strengthened by a certificate document by the Ok Tedi Mining Ltd and signed by a Trevor Shipton and David Hatch as representatives of the OTML which showed further that in March, 2003 the complainant was in the employment of the defendant company.

6. All these points as I have highlighted above do find corroboration from the respond by the company itself that the complainant was in fact one of its employees and according to John Nom he was so since May 1995 and continued further into March, 2003. These points, may I add, strengthen the contention on the balance of probability that the complainant was an employee of the company for almost eight years.

7. Having established and confirmed this point, the next issue and one that is important of the two is the issue of ‘casual’ employee status. From the very outset the company had maintained that even though the complainant may have been its employee his tenure has always been on ‘casual’ basis thus he is not entitled to be paid entitlements usually awarded to its permanent employees.

8. If that is the case then the question I must ask myself is that, what is the position at law in relation to a ‘casual’ employee. I had the benefit of an affidavit by Mr. Neri Temate, The Provincial labour Officer, Western Province who directed me to Section 10 of the Employment Act Chp. 373.which says as follows:

"s. 10.Casual worker deemed to be oral contract employee.

(1) Subject to Subsection (2), where a casual worker is employed by the same employer for more than six days in any one month he shall be deemed to be an oral contract employee under Division 3.

(2) Subsection (1) does not apply to a casual worker employed under the provisions of a registered award covering a specific type of occupation."

9. By reading this provision of the law it would seem that the fact that the complainant, whom the company had claimed to be a ‘casual’ employee for a continuous period since May 1995 up to March 2003 – a period of eight (8) years, was by that very operation of s. 10 deemed an oral contract employee and therefore is entitled to lay claim to such entitlement only reserved for employees other than ‘casuals’.

10. Not only that but because of this operation of the law, the company is further directed by law under s. 15 of the Act (supra) to make a written record of terms and conditions of the complainant’s employment which apparently was not done. Section 15 says in this manner:

"s. 15. Record of terms, etc., of employment.

(1) Where an employer and an employee enter into an oral contract of service, the employer shall, at the time of the engagement, make a written record of the terms and conditions of the contract.

(2) Where a dispute arises as to the terms and conditions of an oral contract of service, and the employer fails to produce a record under Subsection (1), a statement by the employee as to the terms and conditions of the contract shall be conclusive evidence of those terms and conditions unless the employer satisfies the Secretary or an Arbitration Tribunal established under the Industrial Relations Act 1962 to the contrary."

11. This particular provision of the law plays an important role in giving predictability and certainty to an otherwise informal contract that depends largely on the evidence of one party. In the National Court case of Peter Kirin and KK Farmers v. John Paroda (2004) N2599 Justice Kandakasi explained that s.15 is designed to achieve certainty in the terms and conditions of an individual’s employment in informal contracts and an employer is under a legal obligation to transform that into a written form, which for our purposes was never done for the complainant. Any failure on the part of an employer will allow an aggrieved employee an opportunity to demand his entitlements without further interference from the employer in so far as his claims are concerned.

12. It is apparent from the evidence that the company, having relied on a misguided presumption of the law, have failed to prepare a written contract for the complainant and since the company obviously cannot produce evidence of such the complainant is now at liberty to demand for himself his various claims as conclusive evidence thereof.

13. In answering the question I first posed may I say that the complainant, although he may have started work as a ‘casual’ which the company insisted he was, by virtue of s.10 of the Act (supra) he had over time satisfied the requirement of the law and in so doing assumed the status of an oral contract employee. And in the absence of a written record to that effect, he is entitled to make his claims (to be assessed) against the company as such and the court is obliged to accept them as conclusive evidence subject of course to their reasonableness and accepted practices.

Orders accordingly.