Undapa v Bart [2021] PGDC 227; DC7088 (9 December 2021)

DC7088

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 116/2021

IN THE MATTER BETWEEN:

DORIS UNDAPA.
Complainant.
.
AND.

1. BART
2. KEVIN CHARLIE
3. THE MANAGER
4. SUPER-MAX HYPERMART SUPERMARKET.

Defendants.

Popondetta: Michael W. Apie’e

2021: December 09^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:
Complainant in person.
Mr. Tony Sua for the Defendants.

JUDGMENT ON TRIAL.

Background.

Complainants case:

1. The Complainant Doris Undaba files action against the Defendant in her action of 19/11/20 and seeks the following orders;
   
   1. Finding of Unlawful Termination against the Defendant.
      
   2. Orders for K6850.00 in damages against the Defendant for her unlawful termination.
      
2. The Complainant is aggrieved by the Defendants in that she claims that on the 21/05/2021, she is Unjustifiably terminated her from her employment as a cashier with the Supermax Hypermart Supermarket in Popondetta.
   
3. The Reasons given for her termination is that on the 20/05/21 she was told by the Defendants to remain behind to unload cargo but she refused and went away thereby acting In-Subordinate to her employers, therefore she is terminated the next day being the 21/05/21.
   
4. She claims vehemently in her typed affidavit in support dated and filed on the 19/10/21 and also in her submissions that she was never told to remain after hours to unload cargo for the next day.
   
5. The next day when she returned to work, she is terminated for not turning up for the overtime work she was never informed about.
   
6. She is aggrieved by this action and sought Labour Department intervention in the matter and the Provincial Labour Officer after reviewing the case agreed that her Termination was Unlawful and therefore wrote a Letter to that effect on the 11/06/21 to the Defendants urging the reinstatement of the Complainant to her former substantive position.
   
7. The Defendants did pay the Complainants Pro-Rata of K200.00 but still maintained their decision to Terminate and so this matter continues in this court.
   
8. The Complainant relies on her various Affidavits and other filings including Submissions and Originating Documents.
   

Defendants case.

9. The Defendants through Counsel Mr. Sua responded to this claim and they rely primarily on the affidavit of Defendant Kevin Charlie deposed and filed on the 20/09/21.
   
10. The essence of the Defense case are as follows that;
    
    1. The Complainant was engaged by the Defendants as a general shop assistant on the 15/02/21.
       
    2. She was given a probationary period of 3 months to prove herself with a view that if she proved to be worthy she could be given a permanent position.
       
    3. She was primarily trialed at cash handling and should she prove capable she could be confirmed or moved to other departments commensurate to her particular abilities.
       
    4. It is further deposed that during the Probationary period the Complainant is alleged to have failed to meet the expected standards as follows;
       
       1. Undercharging customers in relation to valuable terms.
          
       2. Management decided to shift her to General Cargo Handling Section, but she was reluctant to comply.
          
       100. She was found to be a rebellious Staff whose actions were In-Subordinating to her immediate bosses, refusing to work after hours and walking out when she was needed to ‘Unload Cargos in preparation for the next day’s work!’
            
       4. She was terminated the next day and she went to the Labour Office who in turn wrote to the Defendants, who in turn paid out her Pro-Rata of K200.00 as a Probationary staff working less than 3 months.
          
11. The matter comes before me on the 19/10/21 and it is resolved that an affidavit Trial be conducted between the Parties, and so after taking stock of the various Affidavits and documents the Parties would rely on, the matter is hereafter adjourned to Tuesday 26/10/21 for Final Submissions.
    
12. The matter is further adjourned to 28/10/21 for further submission and further on to 29/10/21 for rebuttals.
    
13. On the 29/10/21 all final Submission and rebuttals was received and the matter was adjourned for ruling to the 09/11/21, but due to delays and protractions the matter returns today 07/12/21 for Ruling on the Affidavit Trial.
    

Observations.

14. The Court makes the following observations on this case;
    
    1. The Complainant had worked only for a short period of 3 months and 6 days from 15/02/21 to 21/05/21 when she was terminated for primarily for not doing over time-work after hours as claimed by the Defendants but vehemently contested by the Complainant.
       
    2. The Bone of contention noted here is the Claim by the Complainant that she was never told to remain to unload Cargo on the 20/05/21 whilst the Defendants claim she was told to remain from 5pm to 7pm to unload cargo but she refused and went away, culminating in her termination the next day.
    3. The other claims of mishandling of cash in undercharging of customers is not verifiable as no further details were provided.
       
    4. The Claims of being a rebellious worker who was insubordinate to her superiors is not elaborated except for and in relation to the claim that she refused to remain after hours from 5.00pm to 7.00pm to unload cargo.

5. Upon her referral of her complaint to the Labour Office, the Labour Officers deemed her Termination to be Unlawful in their letter of 11/06/21, but they failed to elaborate on what basis this termination is deemed by their office as Unlawful.
   
6. Whether they (Labour Department) made any enquiries from the Defendants before making this Assessment of Unlawful Termination is not revealed.
   
7. This failure by the Labour Office was a disservice done to the Complainant in that the Complainant ran with this Letter from the Labour Office thus far, yet without clarity from Labour Office on how her termination was unlawful!
   
8. Also, whether the K6850.00 claimed by the Complainant was quantified and assessed professionally by the Labour Office is also not clear, and the Complainant has not at any time in her filings or submissions justified or quantify her claim for K6850.00 from the Defendants given that she was just a shop assistant /cashier for just a little over 3 months when she was terminated.
   
9. I am making this observation on the basis that in my experience, Labour Department would normally rely on Set Formats to work out a projection of entitlements owing on terminated employment.
   
10. Also, I believe it is easier for the Labour Department to Label a Termination as Lawful because most times, Employers are careful with how they affect terminations for fear of suits such as this, but it is more taxing on the Labour Department to claim Unlawful Termination against anyone as they must accordingly point out the areas where the illegalities occur. The Labour Department has not done this in this case.
    
11. Upon her termination be it Unlawful or otherwise, can she reasonably ask for and be award what she has claimed of K6850.00 for the Three months and 6 days she had worked with the Defendants?
    
12. Any claim for Punitive or Exemplary damages can only be considered if and when judgment is entered in favour of the Complainant.
    

15. As submitted by Counsel for the Defendants, the Complainants Employment with the Defendants was on an oral ‘Contract of Service’ which pursuant to Section 16 and 17 of the Employment Act terminates upon payment of salaries or wages pursuant to Section 16 and re-engagement on the same terms and conditions in the following pay period as per section 17 of the Employment Act.
    
16. The Complainant was not on say Special Written Contract of Employment in which the terms and conditions of such contracted employment is up for consideration before this court.
    
17. The Decision and discussion by Justice Royale Thompson in the case of Ruhuwamo v. PNG Ports Corporation (2019) N8021 is pertinent to this case. The Payment of K200.00 Pro Rata and the acceptance of the same by the Complainant in my opinion basically ends the case right there and then.
    
18. The Labour Department letter without detailing whatever Infractions that makes this termination Unlawful is not worth the paper it is written on.
    
19. Accordingly, the Court Adjudges and will Order as follows;
    
    1. The Complainants Claim(s) is refused in its entirety.
       
    2. No orders on costs.

Complainant in person.

Sua and Sons Lawyers for the Defendants.