Pojari v Manager, Price Rite Enterprises [2021] PGDC 215; DC7074 (11 November 2021)

DC7074

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 31 /2021

IN THE MATTER BETWEEN:

MICHAEL POJARI
Complainant.
.
AND.

THE MANAGER, PRICE RITE ENTERPRISES
Defendants

Popondetta: Michael W. Apie’e

2021: November 11^th.

CIVIL PROCEEDINGS. Claim compensation for Un-Lawful Termination.

Cases Cited:

Ruhuwamo v. PNG Ports Corporation (2019) N8021

References:
District Court Act.
Employment Act

Representation:
Mr. Simul Kuruwalo from Public Solicitors for the Complainant.
Mr. Ian Baron and Mr. Marlon Lagmay Defendants.

JUDGMENT ON TRIAL.

Background.

1. The Complainant filed suit and claimed in his complaint of the 04/03/21 that ‘He being an Employee of Price Rite Enterprise (Price Rite) at Popondentta was on the 01/11/18 unlawfully terminated from his employment.’
   
2. This matter came before me on the 30/03/21 and after subsequent mentions the matter comes for trial on the 30/05/21.
   
3. The Complainant is sole Witness and relies on his filings whilst the Defendant(s) relied on both Mr. Ian Baron and Mr. Marlon Lagmay, and they also rely on their filings.
   

Trial:
Complainants case.

4. The Complainant sued the Defendant, namely Manager of Price Rite, for Unlawful Terminations in that after Six or so years of faithful employment, he was more or less unceremoniously terminated from his employment.
   
5. The Complainant mentioned what he called a ‘Minor Error’ in checking out Frozen goods from Price Rite as the reason for his termination.
   
6. He seeks orders for reinstatement to his former position with Price Rite.
   
7. During the Trial the Complainant gave an account of his activities that day in that;
   
   1. He took Initial order for 15 x cartons of Chicken, which he then passed onto an Assistant to finalize.
      
   2. After returning with the order from Wing Hay Supermarket, the Client also wanted 2x cartoons of Saveloy Sausages, so he placed the 2x cartons of sausages on the 15xchicken cartons and passed on to Assistant Amos to Process.
      
   3. After attending to other activities within Price Rite, he came to check out the items but discovered that the sausages had not being paid for, so after some haggling with the client, the client paid for the sausages also and left.
      
   4. He insisted that the Sausages were not hidden and all it was, was an honest mistake on his part.
      
   5. He further claimed that he had not done anything wrong to be terminated like that, even going to the extent of saying that he had being checking out cargo all his life while working for Price Rite.
      
   6. They Terminated him outright and he went to Labour Office they asked Price Rite to reinstate the Complainant but they did not comply, hence this action.
      

Defense case.

8. The Essence of Price Rite Evidence as posed by Ian Baron and Marlon Lagmay is as follows;
   
   1. The Complainant Unilaterally sought to check out Cargo that day contrary to Company Policy which requires check outs to be done with supervision.
      
   2. It was also revealed that the defendant had being previously cautioned for acting in excess of his authority or responsibility, especially trying to or actually checking out cargo. The Complainant stated that he had being checking out Cargo all his life!
      
   3. The Defendant tended infringement notices given to the Complainant to attest to this history.
      
   4. Regarding the Termination itself, Witnesses Baron and Lagmay both insisted the Termination was Lawful on the basis that the Complainant had exceeded the Warnings and Notice issued on him.
      
   5. They also relied on a letter from Labour Office under the hand of Mr. Copland Gewa dated 23^rd March 2021 which in the final analysis stated that Michael Pojari’s Termination of 1/11/18, was not Unlawful but Lawful.
      
9. Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;
   
   1. Employment Act sets the General tone in respect of Employment in Papua New Guinea.
      
   2. However the finer details remain the prerogative of the Employer.
      
   3. Company Procedures and codes of conduct on what employees can and cannot do in the workplace in Contracted Employment remains in the control of the Employer and if an employee is persistently offending in a particular manner he can be Lawfully terminated pursuant to Section 36 of the Employment Act.
      
   4. This Persistent Exceeding of Authority and Responsibility by the Complainant was mentioned in evidence by the Witnesses for the Defense with Documentation of Warnings and infringement Notice Presented into Evidence to sustain that contention.
      
   5. The Complainant has not produced counter evidence nor question and attempt to discredit these matters through his Counsel or in person.
      
   6. Also further, the Custodian of Employee’s rights in Papua New Guinea being the Labour Department and Offices through its Branch Office in Popondetta has deemed Michael Pojari’s termination of 1/11/18 as being Lawful on those grounds.
      
   7. The Decision and discussion by Justice Royale Thompson in the case of Ruhuwamo v. PNG Ports Corporation (2019) N8021 is pertinent to this case in that in the extreme even if not reasons are offered for the termination, the Defendant Employer would still have been somewhat excused, however in the current case the reason for the termination were amply made clear to the Complainant.
      
10. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Complainant being the one alleging the Unlawfulness of his Termination of 1/11/18 had to proof to this Court on a preponderance or balance of probabilities that his termination was unjustified/unlawful or uncalled for.
       
    2. Stating that a suspension should have being considered instead of outright Termination and that Amos should also have been dealt with similarly is not enough and or sufficient for this court to act on given that both Verbal and Documentary Evidence was presented to sustain the reasons for the termination.
       
    3. Not to mention the analysis and conclusions by Labour Officer Copland Gewa in his Letter dated 31/03/21.
       
11. Accordingly, the Court will order as follows;
    
    1. The Complainants claims are not made out as he has not established on Evidence in Court that his Termination from his Employment with Price Right Enterprise on the 01/11/18 was Unlawful.
       
    2. Therefore, the Complainants Claim for ‘Orders of Reinstatement to his Substantive Position within Price Rite Enterprise’ is Refused.
       
    3. No Orders on Costs.

Mr. Simul Kuruwalo from Public Solicitors for the Complainant.
Mr. Ian Baron and Mr. Marlon Lagmay Defendants.