Tipas v Angolo [2019] PGDC 13; DC4033 (16 May 2019)

DC4033

PAPUANEW GUINEA

District Courts Act, Chapter No 40

[In the Civil Jurisdictions of the District Court Held at Wabag]

DC No 43 of 2016

Between:
SANI TIPAS
(Complainant)

And:
TONY ANGOLO
(Defendant)

Goroka & Wabag: C Inkisopo

2017: 7^th, 14^th & 28^th November,
2019: 16^th May,

District Courts Act, Chapter No 40 – Practice & procedure at District Court defined by Statute – powers and jurisdictions and their application clearly defined and demarcated –

Civil Claim – Claim for unpaid final entitlements as PMV bus driver – verbal employment agreement to drive Defendant’s PMV bus – employment terminated without payment of two (2) fortnights’ pay and final entitlements -

Provincial Labour Office calculations of probable sums due to Complainant – whether to consider such computations as a lawful and acceptable basis –

Act, Rules, Regulations & other Authorities

1: District Courts Act, Chapter No 40

PNG case cited/consulted

1: Gobe Hongu Ltd -vs-NEC & Ors [1999] N1920

2: Paul Bafino -vs- Auno Tibiro [1992] PNGLR 168

Held:

1: The Defendant is found liable to the Complainant for unpaid final entitlements;

2: There be judgment for the Complainant to the sum of K3, 494.43;

16^th May, 2019

JUDGMENT

C Inkisopo: The Complainant filed this case at Wabag District Court dated 19^th of May, 2016 claiming unpaid final entitlements plus additional two fortnights’ pay not paid to him by the Defendant as his former employer in the service of driving one of the Defendant’s PMV buses.

Factual Background:

2: The Complainant claims that he was engaged by the Defendant as a full time driver of one of his PMV buses in 2014. He claims, he rendered his driving service to the Defendant at K400.00 per fortnight for the next succeeding 19 months until the 19^th of July, 2015 when was says he was abruptly relieved of his service for reasons unknown to him or not disclosed to him either by the Defendant. He further claims and laments that when terminated he was not paid his last two (2) fortnights’ pays preceding his termination which in monetary terms was K800.00.

3: The Complainant further claims that when he was relieved of his job, he was not paid his final entitlements. The Complainant says he accepted his termination with his last two (2) fortnightly wages preceding his termination remaining unpaid, due and owing to him. The Complainant claims he made representations on the Defendant for his last two (2) skipped fortnight wages plus his finish pay or final entitlements but Defendant did not pay anything to him and continued to maintain his inaction on the Complainant’s claim.

4: The Complainant says the Defendant’s wilful delay and inaction in addressing his concerns forced him to seek the advice and assistance of the Provincial Labour Officers at their Wabag Branch Office who did compile and gave him a computation of the probable entitlements owed to him that put it down to K2. 570. 40.

5: Complainant took the Labour Office document and gave it to the Defendant for him to consider and do the right thing by the Complainant but the Defendant continued to maintain his stance of not yielding; even to the Labour Office calculations and the accompanying letter. When the Defendant refused to budge, Complainant says he came to Court as the last resort!

7: The Complainant claimed the following as comprising his various heads of claim as the following as per the Labour Office computation;-

(a) 2 x fortnightly unpaid wages @K 0,800.00
(b) Pro-rata holiday pay @K1, 140.40
(c) Unpaid overtime wages @K0, 480.00
(d) Annual leave pay @K0, 630.00

The Complainant said that his above itemized claim totalled up to K2, 570.40 that he wants Defendant to pay as his final entitlement. However, my mathematical re-calculation of the above itemized claims prompted by evidence before me brings me a total figure of K3, 050.40 as being the total proceeds of his various heads of Claim.

8: I am well aware of the trite legal position in this jurisdiction that holds to say; a party is not entitled to a relief he/she has not claimed in the originating process ( See Gobe Hongu Ltd -vs-NEC & Ors [1999] N1920, per Sevua J. In our instant case, I do not see a big deal here with the Complainant’s claim where he claims a lesser figure than the possible correct one reached by the Court. I hold that this lower figure was still within the general ambit of the relief Complainant pleaded in his originating process; such being only a mere mathematical error that I believe is fairly open to this Court to remedying same; such reached on the back of abundance of evidence for the Complainant.

Court Appearances

9: The Complainant filed proceedings at Wabag District Court pleading the various heads of claim as itemized and set out by the Labour Office as being his unpaid entitlements he claims to be due and owing to him from the Defendant; compiled by the Provincial Labour Office, Wabag which is the only governmental authority tasked with labour, employment and industrial relations issues in this Country.

10: The Defendant was duly served of the proceedings by one Sgt P Sa’a of Wabag Police Station on 20^th September, 2016 at Wabag Town’s famed Pawas Buai Market with a proof of service form duly filed and regularly placed on Court file and duly sighted and endorsed for what it purports to be by myself (the Court) on 28^th October, 2016.

11: The matter was registered and made returnable 4^th October, 2016 when Defendant appeared and Complainant did not. Matter got further adjourned to 11^th October, 2016 with a grim endorsement that if Complainant did not show up, matter to be summarily determined. On 11^th October, 2016 when the matter returned, to Court, the Defendant absented whilst the Complainant was present. From the Court’s succeeding records as per the Magistrate’s worksheet endorsements, it clearly showed the Defendant to have made only one Court appearance in answer to this claim and completely stopped coming altogether during subsequent Court adjournment dates; until the matter went for an ex-parte hearing before me on 24thNovember, 2016.

12: The Court eventually conducted an ex-parte hearing on 24^th November, 2016 where the Complainant gave oral evidence aside from his written Affidavit evidence duly filed and existing on file. He was heard orally and was fully examined on his evidence. Also admitted into evidence was a certain computation of employment benefits done up by the Provincial Labour Department Office in Wabag dated 27^th July, 2016 on three (3) pages that is annexed to the Complainant’s Affidavit and marked as Annexure “A”.

13: The Labour Department is the only lawful Governmental entity that is tasked to deal with labour, employment and industrial relations issues in the Country such as this one; and this Court, unless the law forbids or otherwise, is entitled to adopt and apply it to do justice in any one case such as this. In our instant case, a formal computation of the probable dues owing to the Complainant under the various heads of claim brought a net figure of K2, 570.40 (but upon a re-calculation of same, it nets a figure of K3, 050.40) as being the Complainant’s final entitlements due and owing from the Defendant.

14: For his part, the Defendant apart from not attending the various subsequent Court return sessions, he did not file anything in his Defence nor did he put up anything at all to rebut the Complainant’s evidence including the Provincial Labour Office’s computation of the Complainant’s probable final entitlements. There is really nothing on file disputing or taking issue with the Complainant’s claim as far as the Court can glean from every material on file.

15: The Court heard the Complainant on his evidence in the witness box and was impressed with him. He appeared simple exemplifying the normal bus driver on the toughest roads in Papua New Guinea speaking his mind out in a slow typical Engan accentuated “tokpisin”. The Complainant impressed me in the presentation of his evidence in the witness box as a witness of truth.

Findings

16: On the overall evidence of the Complainant’s case as it stands, I make the following findings of fact basically taking account of objective facts (Paul Bafino -vs- Auno Tibiro [1992] PNGLR 168) in such simple contractual situations;-

(1) The Complainant was at all material times a PMV bus driver in the employ of the Defendant as driver of his PMV bus;
(2) The Defendant operated PMV bus service operating out of Wabag on the Highlands Highway;
(3) The Complainant was being paid K400.00 wages per fortnight;
(4) The duration of the subject employment was for about 19 months;
(5) The Complainant was not paid his last two (2) fortnights’ pay when he got terminated;
(6) The Complainant took his grievance to the Provincial Labour Office for their assistance and they did compile a computation of his probable final entitlements;
(7) The Labour Office computation was served on the Defendant who ignored it; and did nothing about it;
(8) The Complainant brought his claim to Court when all avenues he pursued seemingly failed him.

Prove on the Balance of Probabilities

17: Following on from the above findings, I am satisfied on the civil standard of proof on the balance of probabilities that the Complainant has made out his case for unpaid final entitlements against the Defendant.

Finding and Conclusion on Liability

18: On the basis of the above discussions, I find the Defendant liable to the Complainant for unpaid final entitlements to the sum of K3, 050.40.

Formal Court Order

19: The Court’s formal Orders are;-

1: That there be judgment by ex-parte hearing entered for the Complainant to the sum of K3, 050.40;

2: Plus K200.oo being costs of proceedings together with 8% interests @ K244.03 totalling K444.03;

3: The total judgment order of K3, 494.43 shall be paid by the Defendant Tony Angolo within fourteen (14) days (or two (2) weeks) from the date of service of this Order on the Defendant.

Orders accordingly

Lawyers:

Nil Lawyers appeared for any one or both parties