Biape v Awela [2008] PGDC 8; DC662 (21 February 2008)

DC662

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

DCCi 109 of 2007

BETWEEN

PAULINE BIAPE
Complainant

AND

JACK AWELA
1st Defendant

AND

SOUTH SUPER STORES LTD
2nd Defendant

Goroka: F MANUE
2007: December 10
2008: February 21

CIVIL - Contract of Service – whether the complainant was paid final termination entitlements – Practice and procedure. No notice of intention to defend filed – No defence filed – Defendant allowed to make a Statement despite failing to comply with procedure of filing defence.

Held - No defence made out
- Final entitlement not paid out to complainant

Cases Cited
Nil

References
Nil

Counsel
Complainant: In Person
1st Defendant: In Person
2nd Defendant: No Appearance

21 February 2008

REASONS FOR DECISION

F Manue: This is a claim for the final entitlement in a contract of service, rendered by the complainant to the defendants. The complainant is claiming K6, 270.43 as her final entitlement for services rendered to the defendants over a period of twelve years 10 months. She also claims for interest, costs and any other orders where the Court sees fit.

2. The issue is whether the complainant was paid her final entitlement.

3. The issue is not disputing the reasons for her termination, but rather her final entitlement for the services she rendered to the defendant.

4. Initially, when this matter was first mentioned on the 05th June 2007, Mr. Awela the first defendant, indicated that the defendants had engaged the services of Liria Lawyers based in Port Moresby. Although he was advised to inform the purported defence counsel to file a notice of intention to defend and a defence, those procedural process were not complied with. The law firm did not represent the defendants in any stage nor did they make any appearance.

5. Despite that, in the interest of justice the Court exercising its discretion and waived that requirement and allowed the first defendant to make a statement after the complainants case. Strictly speaking, the procedure is, where no notice of defence is filed and subsequently no defence filed, then by law, there is no defence by the defendant and no pleading may be entertained at the end of the complainants case.

6. Having said that, I am not impressed of what the second defendant stated. Not only was the statement given unsworn but that the statement was made in the absence of any pleadings in a properly filed defence.

7. I am therefore inclined to accept the complainants version of the events in this contract of service. The complainant filed on affidavit in support of her claim which are quoted as:-

“I Mrs. Pauline Biape of P O Box 1365, Goroka, EHP duly sworn, make oath and say as follows:

1. I am the complainant in this process and therefore competent to dispose of this my affidavit.

2. I am a former employee of South Super Stores Limited here in Goroka.

3. I was employed by Mr. Jack Awela, the operations manager of South Super Stores here in Goroka.

4. I was employed as a Till Operator Supervisor and sometimes I acted as Accounts Clerk with South Super Stores Limited and do their banking.

5. I worked 0700 hours to 1800 hours each day Sunday to Sunday for the last twelve (12) years and ten (10) months.

6. I was terminated from my job for unknown reasons on 23 June, 2005.

7. I approached the Department of Labour and Employment for assistance.

8. The Department of Labour and Employment calculated my outstanding service entitlements and demanded the defendants to pay me.

9. Annexed and marked with “A” is the Demand Letter from the Department of Labour and Employment to the defendants dated 22 July 2005.

10. On several occasions the defendants through Mr. Jack Awela assured me that my outstanding service entitlements will be paid.

11. I waited patiently hoping that they will pay my outstanding service entitlements.

12. My request through Mr. Jack Awela (first defendant) has fallen on deaf ears.

13. I was unnecessarily denied my rights for my outstanding service entitlements as calculated by the Department of Labour and Employment.

14. Therefore I now sue the defendant’s and claim the said outstanding unpaid service entitlements.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ”

8. Annexture “A” which is the calculations by the Labour Department dated 22 July 2005 was addressed to the Manager of South Super at Goroka. The calculations are:-

“I, Pauline Henry Biape – (12 years 10 months)

Accured Annual Leave Pay

1.5 days per month x 8 hours per day x 2.30 hourly rate of pay x 145 months of service = K4, 250.40

Pro-rata Long Service Pay

1.4 hours per week x 52 weeks per year x 2.30 hourly rate of pay x 12.10 years of service = K2, 026.03

Total amount outstanding = K6, 276.43”

9. These evidences were examined and cross examined.

10. The defendant Jack Awela did not examine on the issue of years of service, the rate of pay or any other issues relating to the complainants claim.

11. In his cross-examination, he only attempted to raise questions in relation to the amount of claim the complainant claims which is higher than the amount claimed by another ex-employee of the defendants, Mr. Raiatol Umaku, whose claim was lower.

12. The labour officer who appeared to be examined, clearly verified the difference, being due to the hourly rates both workers were paid. The Complainant’s rate being higher, therefore hers was higher.

13. I accepted the complainants claim on the balance of probability and award her claim with interest and costs.

Complainant: In Person
1st Defendant: In Person
2nd Defendant: No Appearance