Francis v Department of Education Kundiawa [2008] PGDC 49; DC735 (1 April 2008)

DC735

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT’S GRADE FIVE CIVIL JURISDICTION]

GFCi 748 - 750 of 2006

BETWEEN:

MARY FRANCIS
Complainant

AND:

DEPARTMENT OF EDUCATION KUNDIAWA
First Defendant

AND:

MATHEW GEGLUA
Second Defendant

AND:

PAUL GENDE
Third Defendant

Kundiawa: M. Gauli, PM
2008: April 01st

CIVIL - Claims unpaid wages and entitlements – Terminated without notice - Employed for 15 months without being paid – Oral contract of employment.

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendants - No Appearance

1st April 2008

EXPARTE JUDGEMENT

M. Gauli; PM: The Complainant Mary Francis claims against the defendant for her unpaid wages and entitlement. She claims that she was employed by the defendants for a period 15 months without being paid. The defendants or their legal representative failed to appear and the Court proceeded by way of ex parte hearing pursuant to s.143 of the District Courts Act. This provision empowers the Court to proceed ex parte where defendant(s) failed to appear in Court after the defendant is served with the summons three days before the return date of the summons. The summons was filed in Court on the 10th October 2006. Copies served on the defendants on 19th October 2006. Since the summons were served the defendants only appeared once on 30th March 2007. I therefore proceeded exparte.

Complainant and her father Francis Dama gave evidence. Mary Francis relied on her affidavit dated and sworn on 6th November 2006 Marked EXHIBIT ‘A’ and the letter from the Department of Labour and Industrial Relations dated 05th March 2007 and addressed to the Presiding Magistrate which contains the calculation of the Complainants entitlement – it is marked EXHIBIT ‘B’. The witness Francis Duma relied on his affidavit dated and sworn on 7th March 2007 (Marked EXHIBIT ‘C’).

The Complainant Mary Francis deposed in her affidavit that she was employed by the defendants in early March 2003 as a typist and clerical work. She was attached to the Project Officer. Mr. Paul Gende (the 3rd defendant) within the Department of Education in Kundiawa. After working for nine months she was transferred to the Provincial Education Office in December 2003. On her transfer she was paid K1,000.00 by the 3rd Defendant. She continued in that employment until she was laid off at the end of June 2004. And she was paid K200.00 as her finish pay. She deposed that since her employment from March 2003 to June 2004 she was never paid her fortnightly wages. Apart from the above two payment, she was never told how much her fortnightly or annual salary was.
She approached the Department of Labour & Industrial Relations who then calculated her entitlement for the 15 months of her employment as (as per EXHIBIT’B’):

(A) Unpaid Fortnight Wages

K250.00 x 32 F/N = K8000.00

(B) Money In Lieu of Notice

K3.00 / hour x 42 hours per week x 2 weeks = K252.00

(C) Annual Recreation Leave

1.5Hrs / month x 3 Hrs / Day x K3.00 / Her x 15 months = K540.

Grand Total = K8,792.0

The witness Francis Dama deposed in his affidavit that the Complainant is currently residing with her husband in Port Moresby. He then annexed the EXHIBIT ‘B’; to his affidavit forming part of his evidence.

There is no written contract of her employment. She would have been employed as a casual worker pursuant to s.9 of the Employment Act. Since she was employed for more than six days she is deemed to be on oral contract pursuant to s.10 of the Employment. Since there was no period fixed for the oral contract of her services nor was there any fixed wage imposed by the defendant, I accept the computations by the Department of Labour & Industrial Relations (EXHIBIT ‘B’) to be applied as appropriate to her. For under the morden economic world no one could work without pay. Even if the complainant’s engagement in the employment was not approved by the employing authority, the fact that she had provided her services to the defendants is the reason that she needed to be renumerated as the defendants failed to deny employing her. And I must apply and adopt the calculations provided by the Department of Labour.

The Complainant was paid K1,200.00 which have to be deducted from her total entitlement of K8,792.00. The Complainant is only entitled to a balance of K7,592.00. I will allow 8% interest on this amount pursuant to s.1(2) of the Judicial Proceedings (Interest on Debt and Damages) Act for the period for 10th October 2006 to 01st April 2008 the date of this decision. That interest is calculated to be K911.00 I also allow K2.00 return PMV fare per day for attending Court proceeding for 10 days to a total sum of K20.00. And I enter judgement in favour of the Complainant in the total sum of K8,523.00 inclusive of interest and cost. The amount is payable within six months from the date of this order.

Complainant - Present in Person
Defendants - No Appearance