Peinue v Jomik Group of Companies [2019] PGDC 6; DC3089 (30 April 2019)

DC3089

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL COURT JURISDICTION]

GFCr 01 of 2019

BETWEEN

WALTER PEINUE
Complainant

AND

JOMIK GROUP OF COMPANIES
Defendant

BUKA: BTASIKUL

2019: 30^th April, 2019

     

Civil-

Cases Cited

References

Counsel

JUDGEMENT

1. B.TASIKUL: This is a claim of K4611.00 by the Complainant being for his final entitlement. The claim is for non-payment of service payment or finish pay, annual leave, underpaid wages and superannuation for one year four months.
   
2. The complainant claims that he was employed by the defendant for a period of one year four months. During his term of employment he was paid a salary of K255.00 per fortnight, until he was terminated for being involved in an incident. Upon his termination he was only paid his normal salary.
   
3. There were no serious contentions by the defendant in relation to his employment. The defendant contented that the Plaintiff was employed as a casual employee and was not entitle to any final entitlement or finish pay. The final payment he was paid was his normal salary as required by his status of employment.
   
4. It is not disputed that the Plaintiff was employed as a casual employee. Therefore his term of employment is covered under the Employment Act, chp 373. Relevant provisions are found at Division 1 of the Act which provides for Casual Workers. S.9 state: Subject to this Act a person may be employed as a casual worker. S10 further states; Casual worker deemed to be oral contract employee. (1) States; 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 deem to be an oral contract employee.
   
5. The Plaintiff in this present case was employed by the defendant for almost one year and four months. Therefore his term of employment is covered as an oral contract employee.
   
6. Relevant provisions under which to be considered are in Division 3 –Oral Contract. S.15 states: Where an employer and an employee enter into an oral contract of service, the employer shall, at the time of engagement, make a written record of the terms and conditions of the contract. S.16 provides for the period of the oral contact which states; notwithstanding 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.
   
7. It was not disputed that the Plaintiff did received his salary every fortnight until his termination.
   
8. S.17 further provides that; Each party to an oral contract of service that express under s.16 shall immediately on the expiration of the contract, be deemed to have into a new contract of service for a further period of the same duration and subject to the same terms and condition as the expired contact unless;
   
   • (a) Notice to terminate the employment under s 34 has been previously given
   • (b) The contract has been summarily terminated by other party for lawful cause.
     
9. Basically, what this provision means is that upon the payment of an employee by his employer of his salary on pay day, that oral contract terminated forthwith. He thenenters into a new contract of service again for another two weeks until he is paid. That is exactly what the Complainant to this current proceeding is bound by.
   
10. However, having said that, it was not disputed that the complainant was employed for a period of one year and four months continually. Section 61 (2) states; Subject to subsection (3) (4) and (5), the right to recreation leave accrues at the end of each period of 12 months continuous service. Subsection(4) states: An employee whose employment terminates or is terminated is entitled to be paid recreation leave, if he has completed not less than six months continues service at a rate of one day for each completed month.
    
11. S.16 explicitly clear that an employee is entitle to an annual leave after completing a 12 months continuously service which is the case before me.
    
12. Have considered the relevant provisions of the Employment Act and its application to this case before me I am of the view that the complaint is not entitle to any finish pay or final payment as the status of his employment was of a casual worker only. He is onlyentitled to his final pay for two weeks.
    
13. However, the only payment he is entitled to is money in lieu of his annual leave which was never been paid to him.As tenered by the complainant in his evidence a summary of his entitlement calculated and submitted by the Department of Labour and Industrial Relations the amount of K462.00 was his unpaid annual leave entitlement.
    
14. I therefore ordered that the defendant pays the complainant the sum of K462.00 forthwith.