Dioni v Mokuma [2008] PGDC 95; DC751 (17 April 2008)

DC751

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

CL 91 of 2007

BETWEEN

MATHEW DIONI
Complainant

AND

JOSEPH MOKUMA
First Defendant

AND

JOCIA ENTERPRISE LIMITED
Second Defendant

Buka: B Tasikul, SM

2008: April 17

CIVIL - Termination of employment - Oral contract employee - Final entitlement.

Case Cited

Nil

Reference

Employment Act

Counsel

For the Complainant - In Person
For the Defendant - In Person

17 April 2008

JUDGMENT

B Tasikul, SM: This is a claim of K4165.75 by the complainant being for unpaid entitlements after he was terminated by the defendants.

2. The complainant was employed by the defendants as a shop assistant. He was first employed from June 2001 to April 2002. He was laid off and later re-employed on the 3 August 2006 to 21 March 2007.

3. The particulars of his claim did not specify which final entitlements he was referring to, however, in his evidence he stated that his finish pay and unpaid overtime.

4. He stated that as a shop assistant he normally commenced duty from 8.00 am to 4.00 pm. After the shop is closed, the first defendant normally instructed him not to leave as they were required to assist in the liquor section. That is when he would assist in re-stocking of beer for the next day. They normally finished very late. For that work he did after hours, he was never been paid for.

5. This was refuted by the first defendant that he never instructed anybody to assist in the liquor section. There was already somebody working in that section as it does not require more than one (1) person to work there. He claimed that there was a timetable drawn up for those to assist in re-stocking and that work only lasted for an hour. They close the liquor shop at 7.00 pm.

6. The first defendant further testified that when the complainant was terminated, he paid him off the sum of K646.87. The overtime he is claiming has never been authorized by him as the Managing Director of the company.

7. The complainant as a casual employee, his status of employment is covered under the Employment Act. This covers oral contract. Section 10 of the Act provides: 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 (6) days in any one (1) month shall be deem to be an oral contract employee.

8. In this case the complainant was employed as a casual employee. Section 16 of the Act: PERIOD OF ORAL CONTRACT. Not withstanding any agreement to the contrary an oral contract of service shall be deem to be for the period by reference to which wages are paid.

9. The complainant was paid K125.00 fortnightly. Section 17 of the Act further provides as follows:

NEW ORAL CONTRACT AND EXPIRATION OF CONTRACT. Each party to an oral contract of service that expires under section 16 shall immediately on the expiration of the contract, be deemed to have entered into a new oral contract of service for a further period of the same duration and subject to the same terms and condition as the expired contract unless:

(a) notice to terminate the employment under section 34 has been previously given and

(b) the period of the notice has expired, or (c) the contract has been summarily terminated by either party for lawful cause.

10. In this matter it would appear that when the complainant was first laid off, he was never been terminated. That is why he was re-employed on 3 August 2006 up till 21 March 2007. There is no reason given by either party why he ceased employment in April 2002. I suppose it was an internal matter between them.

11. As an oral employee he would have known that his employment was only on a fortnightly basis. That is as he already seen when his employer first laid him off and later re-employed him. The employer has the right to terminate any employee on oral contract.

12. To that extent, the oral contract employee has no security of tenure that is because he is employed on a fortnightly basis and that he is open to be dismissed anytime.

13. The complainant has never been also employed for over a twelve (12) months period in which he is entitled to three (3) weeks leave. That is why he can not claim money in lien of his service.

14. Mr. John Monei pointed out that the complainant was not entitled to any final entitlements as he never completed twelve (12) months service. This is clearly stated in subsection 61, 62, 63 of Employment Act.

15. In relation to his overtime claim, there is no evidence to support that he was not paid his overtime. Section 15 of the Act clearly states that any oral contract between the employee and employer must have a written record of the terms and conditions of the contract.

16. This is to say if there was any agreement between the parties on the basis of overtime. There must be a clear record of this matter.

17. The complainant has been paid K646.87 as his final payment in which course was more than what he is entitled too.

18. I therefore find that the complainant has failed to prove his case of the balance of probabilities. I therefore dismiss this matter.

For the Complainant - In Person
For the Defendants - In Persons