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Leo v Nepe [2024] PGNC 352; N11025 (3 October 2024)

N11025


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 67 OF 2021 (IECMS)


BETWEEN:
MASRO LEO
Plaintiff


AND
MARKHILL MARNEY NEPE
TRADING AS CITY FORCE SECURITY SERVICE
Defendant


Waigani: Wood J
2024: 10th & 18th April, 3rd October


EMPLOYMENT LAW CLAIM – hearing on assessment of damages – as part of the assessment of damages, it was necessary to determine whether the plaintiff was a casual employee or permanent employee – the true character of the plaintiff’s employment was that of a permanent employee – the plaintiff was paid below the minimum wage and not all his entitlements were paid to him – damages were payable, however, part of the plaintiff’s claim was statute barred and certain aspects of the claim were not properly pleaded, nor were all of the plaintiff’s claim supported by evidence


Costs were awarded against the defendant, but if pursued, costs should only be paid to the Office of the Public Solicitor (which Office acted for the plaintiff)


Cases Cited:
Papua New Guinean Cases


Sipa v Skani [2013] N5355
William Mel v Coleman Pakalia (2005) SC790


Overseas Cases

WorkPac Pty Ltd v Rossato [2021] HCA 23


Legislation Cited

Employment Act (Chapter 373)
Frauds and Limitations Act 1998
Industrial Relations Act 1962
Superannuation (General Provision) Act 2000


Counsel


Ms C. Wilmott, for the Plaintiff
Ms L. Ipato, for the Defendant


3rd October 2024


  1. WOOD J: BACKGROUND: The trial on the assessment of damages came before me on 10 and 18 April 2024. The background to the trial on the assessment of damages was that on 5 September 2022, the order for default judgment made on 8 April 2022 was set aside. By an order of Acting Justice Wurr made on 28 September 2022, her Honour entered liability against the defendant in ‘.... in regard to the claim for unpaid wages for the year 2015 and for the unpaid final entitlements.’
  2. The plaintiff commenced the proceeding on 8 February 2021 by filling a Writ of Summons and Statement of Claim. On 19 February 2021, the plaintiff filed a Writ of Summons and Amended Statement of Claim (the Amended Claim). In the Amended Claim, the plaintiff claims a number of matters, including:
    1. that on or around 29 July 2013, he and the defendant entered into a verbal contract, whereby he would be employed by the plaintiff as a static guard and stationed at Leon Hardware, 8 Mile, National Capital District;
    2. he would work nine hours a day and six days per week;
    1. it was implied that he would be paid K3.20 per hour from 2013 to 2014, K3.36 per hour from 2015 and K3.50 per hour from 2016;
    1. it was implied that he would be paid twice the hourly rate on Sundays and at the hourly rate on public holidays;
    2. his employment ceased on 15 January 2016, after a period of two years, five months and 17 days;
    3. the defendant ‘.... laid the Plaintiff and others off from work’ when the defendant’s contract with Leon Hardware came to an end;
    4. the Department of Labour and Industrial Relations compiled a list of money owed to the plaintiff as follows:
      1. 29 unpaid fortnights K12,789
      2. money in lieu of notice K147
      3. annual leave pay K252
      4. superannuation contribution K1,227.74

TOTAL K15,117.74

  1. I should say that unfortunately the Amended Claim was difficult to follow in a number of respects, including that:
    1. the plaintiff failed to plead those specific dates when he says he was not paid wages;
    2. the plaintiff did not plead the details of the hourly rate at which he says he was paid, nor did he provide any evidence of the hourly rate(s) he was paid over the course of his employment with the defendant;
    1. the plaintiff did not plead in the Amended Claim, nor did he provide evidence about the hours he worked each day. This was important as his pay envelopes did not detail how many hours he worked each fortnight, noting that his pay envelopes varied in the amounts he was paid;
    1. the plaintiff did not provide evidence regarding those specific dates for which he says he was not paid;
    2. the pay envelopes that were annexed to his affidavit filed on 23 June 2022 did not provide the details of his hourly rate of pay;
    3. while the plaintiff claims in the Amended Claim that the defendant failed to pay him wages for 29 fortnights, being 9 fortnights in 2013 and 12 fortnights in 2014, it was unclear whether his reference to the other nine fortnights was a typographical error or whether he meant that the plaintiff failed to pay him for 9 fortnights in 2015 and the first two-week period in 2016; and
    4. much of the plaintiff’s claim appears to be supported by calculations made by the Department of Labour and Industrial Relations, however, those calculations were not particularised (or explained) properly, and it follows that there must be a proper legal and evidentiary basis to support those calculations.
    1. Noting the judgment on liability that was entered on 28 September 2022, and noting my comments in paragraph 3 above, I refer to the Supreme Court decision in William Mel v Coleman Pakalia (2005) SC790, per Justices Los, Jalina and Cannings, where the following principles were stated at pages 13 and 14, namely:

      ‘In assessing damages we will apply the following principles:
  2. The Amended Claim seeks damages, in part, for unpaid wages for 2013 and 2014, however, given the proceeding was commenced on 8 February 2021, and while noting the earlier Order of the Court was that effectively that there be an assessment of damages on the unpaid wages for the year 2015, in accordance with section 16 of the Frauds and Limitations Act 1998, the plaintiff’s claim is restricted to any claim for damages or other relief from 8 February 2015 onwards.
  3. In order to consider what damages, if any, should be awarded against the defendant, it is necessary to consider two issues, firstly, whether the plaintiff was employed as a casual employee or permanent employee. The second issue is what hourly rate was paid to the plaintiff.

    Was the plaintiff a casual or permanent employee?
  4. The plaintiff’s evidence was that on 29 July 2013, under a verbal contract of employment, he was engaged as a static guard by the defendant and posted to Erima at Leon Hardware to guard the premises. He says he worked there for a period of two years, five months and 17 days, during which time he was paid between K170 to K252 per fortnight. He says he worked for seven consecutive days from 7 a.m. to 4 p.m. and did not take rest days. His employment was terminated on 15 January 2016.
  5. In the defendant’s draft Defence which was annexed to his affidavit in support filed on 9 November 2023 (the draft Defence), he states that there was no formal employment contract signed between the plaintiff and the defendant, and this was because the defendant’s business (City Force Security Service) was newly formed. The defendant stated that at the time of securing a contract with Leon Hardware Ltd, the verbal agreement was that Leon Hardware Ltd would pay the defendant K2 per hour for the services of each guard. The defendant conceded that the rate was below the minimum wage requirement, but that the defendant ‘... needed the job to stay afloat.’ He further stated that the oral agreement with the plaintiff would be that he was paid K1.20 per hour and the defendant would receive K0.80.
  6. In paragraph 3 of the draft Defence, it is stated that plaintiff was ‘hand-picked on the streets’ to work as a casual security guard or stand-by guard in the defendant’s security firm. In paragraph 10 of the Defence, it is stated that deductions were made from the plaintiff’s pay for security uniforms, caps and boots.
  7. To assist in the consideration of the issue of whether the nature of the plaintiff’s employment was that of a casual worker or a permanent employee, I refer to the High Court of Australia judgment in WorkPac Pty Ltd v Robert Rossato & others [2021] HCA 23. Notwithstanding that I refer to that judgment, it should be noted that the judgment is not binding on this Court, however, it provides a useful analysis of the status of casual employment in Australia. The relevant background in Workpac (supra) is extracted below from paragraphs 1 to 9 of the judgment (not including the footnotes), namely:

‘The appellant ("WorkPac") is a labour-hire company whose business includes the provision of the services of its employees to firms engaged in the mining of black coal. Among WorkPac's customers is Glencore Australia Pty Ltd and its related entities ("Glencore"), which operate the Collinsville and Newlands mines in Queensland. At all relevant times, Glencore's workforce comprised both its own employees and workers sourced through labour-hire companies such as WorkPac.


The first respondent ("Mr Rossato") was an experienced production worker in the open-cut black coal mining industry. He was employed by WorkPac between 28 July 2014 and 9 April 2018, when he retired. During that time, WorkPac provided his services to Glencore at one or other of the Collinsville and Newlands mines. At all relevant times, WorkPac treated Mr Rossato as a casual employee.


On 16 August 2018, the Full Court of the Federal Court of Australia delivered judgment in WorkPac Pty Ltd v Skene ("Skene"). The Full Court held that Mr Skene, who was employed by WorkPac in circumstances similar to those of Mr Rossato and who was likewise treated by WorkPac as a casual employee, was not a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth) ("the Act") and the enterprise agreement applicable to Mr Skene.

On 2 October 2018, in reliance on the decision in Skene, Mr Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment. These entitlements were said to be due under the Act and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 ("the Enterprise Agreement"), which governed Mr Rossato's employment.

WorkPac denied Mr Rossato's claims, and promptly filed an originating application in the Federal Court of Australia seeking declarations that throughout his employment Mr Rossato had been a casual employee for the purposes of the Act and the Enterprise Agreement. WorkPac also sought declarations that, by reason of that status, Mr Rossato was not entitled to paid annual, personal/carer's or compassionate leave or to payment for public holidays; and that he had been paid at a rate which incorporated a 25 per cent casual loading in lieu of those entitlements. In the alternative, if Mr Rossato were found to have been other than a casual employee, WorkPac sought declarations that it was entitled to set off, against the entitlements claimed by Mr Rossato, payments it had made to Mr Rossato in compensation for, or in lieu of, those entitlements; or that it was entitled to restitution in respect of the amounts it had paid to Mr Rossato in excess of his entitlement to remuneration as a permanent employee.

On 21 December 2018, Allsop CJ directed, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), that the matter be heard by a Full Court. Allsop CJ also granted leave to intervene in the proceedings to the second respondent ("the Minister") and the third respondent ("the CFMMEU"). On 26 March 2019, Bromberg J granted leave to intervene in the proceedings to the fourth respondent ("Mr Petersen"), who is the applicant in a class action brought against WorkPac on behalf of employees who are said to have been employed in similar circumstances to Mr Skene.

WorkPac, as the moving party, sought only declaratory relief. Mr Rossato did not cross-claim for payment of his entitlements, and the Full Court was not asked to quantify those entitlements. Instead, WorkPac agreed that if Mr Rossato were successful, it would pay him amounts which had been agreed between the parties. WorkPac also agreed to pay Mr Rossato's costs.

The Full Court of the Federal Court of Australia (Bromberg, White and Wheelahan JJ) concluded that Mr Rossato was not a casual employee for the purposes of the Act and the Enterprise Agreement. The Full Court made declarations that Mr Rossato was entitled to the payments he claimed. The Full Court rejected WorkPac's set off and restitution claims, holding that Mr Rossato's entitlements were not to be reduced by taking into account the amounts paid to Mr Rossato in excess of his entitlements to remuneration as a non-casual employee.

WorkPac now appeals to this Court, arguing that the Full Court ought to have held that Mr Rossato was a casual employee for the purposes of the Act and the Enterprise Agreement. Alternatively, WorkPac argues that the Full Court erroneously rejected its claims in relation to set off and restitution. For the reasons that follow, WorkPac's appeal should be allowed on the basis that Mr Rossato was a casual employee of WorkPac.’


  1. At paragraph 32 of the WorkPac judgment (supra), when considering the definition of ‘casual employee’ under the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (the Act), the High Court noted that a casual employee is one who has no ‘firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work.’
  2. At paragraphs 88, 89 and 90 of the Workpac judgement (supra), the Court stated as follows:

‘The provisions which are critical to the assessment of the existence or otherwise of a firm advance commitment to ongoing work are cll 5.1, 5.3 and 5.5 of the General Conditions. These clauses expressly provided that Mr Rossato's employment was on an "assignment-by-assignment basis", with Mr Rossato entitled to accept or reject an offer of an assignment and WorkPac under no obligation to offer any further assignments. On the plain and ordinary meaning of these provisions, the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed. Once it is accepted, as it must be, that these clauses bound the parties according to their ordinary meaning, it must also be accepted that on a straightforward application of the test which the parties accepted to be the hallmark of casual employment, Mr Rossato was a casual employee.

It was not, and could not be, suggested that WorkPac and Mr Rossato agreed, at any time, that once an assignment was completed he would thereupon be engaged for further assignments. That this was so is readily understandable. Indeed, the whole point of the arrangements under which the parties undertook one assignment at a time was that there should be no basis for any suggestion that either of them was providing a firm advance commitment to continuing work in circumstances not marked by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability.

The absence of a firm advance commitment to ongoing work is also reflected in cll 5.6 and 5.12 of the General Conditions. These provided for variation of the period of an assignment, or termination of an assignment, on one hour's notice. The conferral of a power unilaterally to vary the period of an assignment cannot be confused with the creation of a mutual obligation to pursue a continuing working relationship beyond the completion of a given assignment.’


  1. It is important to note that each case before the Court must be decided on its own facts and the relevant legal issues. The Amended Claim is different to those facts in WorkPac, including that in Mr Rossato’s case, he had a written employment contract which contained clauses that expressly provided that Mr Rossato's employment was on an ‘assignment-by-assignment basis’, with Mr Rossato entitled to accept or reject an offer of an assignment and that WorkPac under no obligation to offer any further assignments. In other words, the High Court was satisfied on the plain and ordinary meaning of those provisions that the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed.
  2. In this proceeding, it is agreed between the parties that the plaintiff was not employed under a written contract of employment. Notwithstanding this, he was employed on a regular and systematic basis over a period of just over two years and five months. The evidence shows that he generally worked 7 a.m. to 4 p.m., six or seven times per week.
  3. Furthermore, pursuant to section 61(1) of the Employment Act (Chapter 373) (the Employment Act), subject to the provisions of any registered award, an employee is entitled for each year of continuous service to a period of 14 consecutive days of paid leave, namely recreational or annual leave. The Employment Act contains other provisions for sick leave. In this case, the evidence shows that the plaintiff was employed in continuous employment for a period of over two years and five months.
  4. It should also be noted that the two affidavits that were relied upon by the defendant contained general denials, with few specific details, including that most of the denials were contained in the draft Defence that was annexed to one of his affidavits. I consider in the circumstances that the defendant ’s evidence was generally poor and lacked detail. Most of his evidence, in effect, was the reliance of the draft Defence that he attached to one of his affidavits.
  5. In relation to the evidence of both parties, I am satisfied that the plaintiff was employed on a regular and systematic basis between the period of, on or about 29 July 2013 to 15 January 2016 and there was no evidence tendered by the defendant that he could simply terminate the plaintiff’s employment with little or no notice. I also note in the draft Defence that it is stated that the defendant deducted money from the plaintiff’s wages for security uniforms, caps and boots. This reinforces to me that during the period of his employment, the plaintiff was required to devote his entire time and duties to the defendant, including that he was required to wear a security uniform that was provided to him.
  6. In his evidence, the defendant stated in the draft Defence that he employed the plaintiff as a casual stand-by guard to be stationed at Leon Hardware, however, no-where in his evidence did he state that he had a written or verbal agreement with the plaintiff that the plaintiff’s employment was strictly confined to the defendant’s contract with providing security guard services to Leon Hardware Limited. For the reasons stated above, I consider the true character of the plaintiff’s employment was that of a permanent employee.

What hourly rate was paid to the plaintiff?

  1. Of note, the evidence of both parties was that the plaintiff was paid below the minimum wage. Ordinarily, the wages for a casual employee should contain a component to compensate them for those statutory entitlements that they do not receive under the Employment Act, such as annual leave, sick leave, and superannuation. Clearly this did not happen in the plaintiff’s case.
  2. I note in the plaintiff’s pay advice envelopes for 2015, which were annexed to his affidavit filed on 23 June 2022, those pay envelopes show that he received fortnightly payments ranging from K216 to K302. In the plaintiff’s affidavit filed on 7 April 2022, he says he worked seven days a week, from 7 a.m. to 4 p.m. As the majority of his pay advice envelopes state that he was paid K252 per fortnight, and in the absence of any other evidence or submissions by either of the parties, I consider it reasonable to assume that the plaintiff was paid K2 per hour during 2015 and up to the termination of his employment on 15 January 2016.
  3. The payment of K2 per hour to the plaintiff during 2015 and up to the date of his termination was well below the Minimum Wage rate at the time of K3.20 per hour. In this regard, I consider it relevant to cite part of paragraph 5 of the defendant’s draft Defence where he stated as follows. ‘If the Plaintiff was not happy with his salaries, he could have raised complaints back in 2013, 2014, 2015 and 2016 respectively but he never did. The Defendant was aware it was a rate below the required minimum wage rate of K3.20 per hour but at that time work was limited and the Defendant needed to stay afloat and promote its services so he had to agree to the K2.00 rate offered by Leon Hardware. The Plaintiff was paid K172.00 to K252.00 per fortnight as agreed to by the parties themselves. The Plaintiff had the opportunity to refuse the pay and file a complaint against the Defendant but he never did, he therefore is barred to raise any complaints now will be considered as double dipping.’
  4. The above extract from the draft Defence, constitutes recognition that the plaintiff was paid below the minimum wage, although the defendant’s reference to K3.20 was only applicable to the 2013 to 2014 period, whereas the minimum wage for 2015 to 30 June was 3.36 per hour. From 1 July 2016, the minimum wage was increased to K3.50 per hour.

Assessment of damages

  1. In general terms, the amount which will be awarded to the plaintiff is significantly restricted by the fact that he commenced the proceeding on
    8 February 2021, whereby due to the six-year statute of limitations period under the Frauds and Limitations Act, he is not able to claim for the time employed during 2013, 2014 and up to and including 7 February 2015.
  2. For the purpose of the plaintiff’s claim, and for the reasons given in paragraph 5 above, the plaintiff can only claim for the period of 8 February 2015 to the date of his termination of employment, namely 15 January 2016. In this regard, the plaintiff needs to appreciate that if he had commenced his claim earlier in the National Court, it may well be the case that he could have claimed additional amounts in damages

Claim for general damages


  1. In the Amended Claim as well as the plaintiff’s written submissions filed on 25 March 2024, the plaintiff makes a claim for general damages of K15,117.74. It should be noted that those letters and calculations by the Department of Labour and Industrial Relations (which are annexed to the plaintiff’s affidavit 7 April 2022), were not particularised, nor do I consider the basis for most of the calculations were properly explained by the author of those letters. Moreover, I consider that the majority of the calculations are incorrect and founded on incorrect principles of employment law. The plaintiff’s reliance on those calculations also ignores the fact that a large part of his claim is statute barred, and it follows that there must be a proper legal and evidentiary basis to support those calculations.
  2. Some of the letters from the Department of Labour and Industrial Relations also purport to be a direction from the Department to the defendant to do certain things. For example, in the letter from the Department of Labour and Industrial Relations dated 12 July 2019, which is (oddly) addressed to the Royal Papua Constabulary, it states that the defendant has not obeyed orders, directions or requirements that were lawfully made by the Department to pay the plaintiff his service/ finish pay of K15,117.74. The letter goes on to state that the failure to comply with that direction is an offence or crime. In this regard, I consider that the author of that letter has clearly misinterpreted the powers of the Department of Labour and Industrial Relations under the Industrial Relations Act, which may in turn have given the plaintiff some misguided expectation about what level of damages he should receive in this proceeding.
  3. In the circumstances, I refuse the plaintiff’s claim for general damages of K15,117.74.
  4. I note in the plaintiff’s affidavit filed on 23 June 2022, that he claims certain people loaned him K1,740 to assist him with his costs associated in following-up with his inquiries with the Department of Labour and Industrial Relations and the Office of the Public Solicitor’s Office. I consider there is no basis for such a claim, including that the general principles in employment law claims in the private sector in Papua New Guinea do not provide for such a remedy. Accordingly, I refuse the claim for K1,740.
  5. In the plaintiff’s written submissions, reference is made to the National Court judgment in Sipa v Skani [2013] N5355, in which proceeding the National Court awarded damages of K5,000 to the plaintiff for each year he was not paid his salary. With respect, I am not obliged to follow that decision, but in any event, I consider in the circumstances of this case that interest on any damages should assist the plaintiff for the period that he has been deprived of the payment of his entitlements by the defendant. I should add, however, that it may be appropriate to award damages to a plaintiff for each year they are not paid their salary, however, the facts in this case are different to the decision in Sipa v Skani (supra).
  6. The plaintiff also claims damages for so-called statutory offences under the Employment Act and the Industrial Relations Act. While there are indeed certain statutory offences, which may be committed by an employer, it does not ordinarily follow that the value of any penalties for those offences can be sought by a plaintiff. For that reason, I refuse the claim of K2,000 by the plaintiff for this head of claim.

General damages - claim for unpaid wages

  1. In relation to the plaintiff’s claim for unpaid wages, he has not particularised in the Amended Claim those dates he says he was not paid for work performed. He has also not provided any evidence as to what dates he claims he was not paid. Accordingly, no award is made to the plaintiff on this claim.
  2. However, I find that the plaintiff was paid below the minimum wage for the relevant period, which was 8 February 2015 to 15 January 2016. During that period he was paid K2 per hour, whereas he should have been paid at least the minimum wage of K3.36 per hour, noting that after the termination of his employment with the defendant, the minimum wage was increased to K3.50 per hour as of 1 July 2016.
  3. On the basis that the plaintiff was entitled to wages for the period 8 February 2015 to 15 January 2016, and because the evidence is that he worked a 9 hour day for seven days a week, I determine that his weekly wages should have been K265.04 per week or K530.08 per fortnight, and not K252 per fortnight which was paid to him in the majority of his pay advice slips. This is calculated, in part, on the basis that section 52 of the Employment Act provides as follows:

(2) Overtime worked–

(a) on a Sunday shall be paid at twice the hourly rate; and

(b) on a public holiday shall be paid at the hourly rate; and

(c) at any time, other than a Sunday or a public holiday, shall be paid at one and one half times the hourly rate.

  1. For the ninth hour worked on a weekday, the plaintiff was entitled to overtime at one and a half times the normal rate of K3.36, which is K5.04. For the nine hours that he worked on a Saturday, he was entitled to be paid at one and a half times the hourly rate. For the nine hours that the plaintiff worked on a Sunday, he was entitled to paid at twice the hourly rate, namely K6.72 per hour.
  2. On the basis of the above analysis, I am satisfied that the plaintiff should have been paid the following amounts, namely:
    1. the difference between K2 per hour and K3.36 per hour for 40 weekday hours per week, which equates to K54.40 per week from 8 February 2015 to 15 January 2016 inclusive;
    2. the difference between K2 per hour and K5.04 per hour (ie 1.5 times the hourly rate) for one hour of each of the five weekdays per week (ie. ninth hour each day), which is calculated at 5 x 3.04, which equals K15.20 per week from 8 February 2015 to 15 January 2016 inclusive;
    1. the difference between K2 per hour and K5.04 per hour (ie 1.5 times the hourly rate) for the nine hours each Saturday that the plaintiff worked, which equates to K27.36 per week from 8 February 2015 to 15 January 2016 inclusive; and
    1. the difference between K2 per hour and K6.72 per hour (double the hourly rate) for the nine hours each Sunday that the plaintiff worked, which equates to K42.48 per week from 8 February 2015 to 15 January 2016 inclusive.
  3. On the basis of the above calculations, the plaintiff should have received an additional K139.44 each week in wages from 8 February 2015 to 15 January 2016 (which equates to 48.85 weeks). In total, the plaintiff is awarded K6,811.64 for underpaid wages from 8 February 2015 to 15 January 2016.

Claim for notice period


  1. On the basis that I find the true nature of the plaintiff’s employment was that of a permanent employee, and noting that he was employed for approximately two and a half years with the defendant, section 34 of the Employment Act relevantly provides as follows:

(1) This section does not apply to a written contract of service for the first two years of operation of the contract unless the parties to the contract agree otherwise.

(2) Subject to this Act, a party to a contract of service may, at any time, give notice to the other party of his intention to terminate the contract.

(3) The length of notice of intention required to terminate a contract of service shall be the same for both parties and–

(a) shall be as specified in the contract; or

(b) shall be not less than the periods specified in Subsection (4).

(4) Where there is no provision in a contract of service for notice of intention to terminate, the length of the notice shall be not less than–

(a) ...........

(b) ...........

(c) two weeks’ notice if the employee has been employed for not less than one year and for less than five years.


  1. Accordingly, I award the plaintiff the amount of K567.94 for the two weeks’ notice period, which is calculated on the basis of an average daily wage of K37.86 (ie K265.04 divided by a 7 day week).

Annual leave

  1. As the evidence is that the plaintiff was employed in Port Moresby, and because I have found that he was a permanent employee, he is entitled under clause 6 of the Port Moresby Common Rule to three weeks annual leave (or 15 days) after 12 months continuous service with the same employer. On the basis that the plaintiff is entitled to annual leave for the period 8 February 2015 to 15 January 2016, I award him the amount of K532.11, which is calculated on the basis of K37.86 per day x 342 days/ 365 days x 15 days.

    Superannuation
  2. Section 4 of the Superannuation (General Provision) Act 2000
    (the Superannuation Act) provides as follows:

(1) The provisions of this Act apply to –

(a) every employer employing or engaging 20 or more employees, or such other number as prescribed by regulation; and

(b) every employee engaged in employment by an employer under Paragraph (a) and receiving pay,

whether they make mandatory or voluntary contribution to an ASF; and

(c) every employer employing or engaging less than 20 employees or such other number as prescribed by regulation, where the employer elects on a voluntary basis to make employer contribution to an ASF on behalf of employees; and

(d) every employee engaged in employment by an employer under Paragraph (c) and receiving pay, who elects on a voluntary basis to make employee contributions to an ASF.


  1. Section 76(1) of the Superannuation Act provides that an employer referred to in section 4(1)(a) of the Superannuation Act shall, in respect of each of its employees continuously employed for a period of three months or more, make a contribution to an (Authorized Superannuation Fund) (ASF) at the rate, and computed from the date, prescribed by regulation.
  2. Although it is not clear from the evidence whether the defendant employed more than 20 employees for the purpose of section 4(a) of the Superannuation Act, on the basis that I am satisfied that the plaintiff was a permanent employee of the defendant, I am satisfied from the plaintiff’s evidence that had he been fully aware of his employment law rights from the outset of his employment, he would have intended to contribute to an ASF from the commencement of his employment within the meaning of section 4(b) and/ or (d) of the Superannuation Act. In this regard, the current ‘employer contributions’ which are required to be made for each applicable employee is 8.4% of their wages or salary. Accordingly, I award the plaintiff the amount of K1,087.64 in superannuation contributions, which is calculated from 8 February 2015 to 15 January 2016 on the basis of K37.86 x 8.4% x 342 days, which equals K1,087.64.

Total amount of damages to be awarded to the plaintiff


  1. On the basis of the above matters, I award the plaintiff the following amounts:
  1. K6,811.64 for underpaid wages;
  2. K567.94 for the two weeks’ notice period;
  1. K532.11 for accrued annual leave; and
  1. K1,087.64 for superannuation payments.

Total: K8,999.33

Claim for interest


  1. As the plaintiff has succeeded in his claim against the defendant, I consider it appropriate that interest should be awarded on his damages at the rate of 8% per annum, whereby the defendant is ordered to pay the plaintiff interest at the rate of 8% per annum on the amount of K8,999.33 commencing on 8 February 2015 and up to the date of payment of those damages by the defendant.

    Court costs
  2. I consider it appropriate that the defendant should pay the plaintiff’s costs of and incidental to the proceeding on a party/party basis, however, as the plaintiff was represented by the Office of the Public Solicitor, if those costs are pursued by the Office of the Public Solicitor (which decision shall vest in the Public Solicitor) those costs shall only be paid to the Office of the Public Solicitor and not the plaintiff. There are good public policy reasons for this on the basis that the Office of the Public Solicitor provides free legal aid to certain litigants.

Orders:


  1. The defendant shall pay the plaintiff damages in the total amount of K8,999.33, which comprises K6,811.64 for underpaid wages for the period of 8 February 2015 to 15 January 2016 inclusive, K567.94 for the two weeks’ notice period, K532.11 for accrued annual leave, and K1,087.64 for superannuation payments for the period for the period of 8 February 2015 to 15 January 2016 inclusive.
  2. The defendant shall pay the plaintiff interest at the rate of 8% per annum on the amount of K8,999.33 commencing on 8 February 2015 and up to the date of payment of those damages by the defendant.
  3. The defendant shall pay the plaintiff’s costs of and incidental to the proceeding on a party/ party basis, which shall be taxed, if not agreed. If those costs are pursued by the Office of the Public Solicitor (which decision shall vest in the Public Solicitor) those costs shall only be paid to the Office of the Public Solicitor and not the plaintiff
  4. Time is abridged.

Office of the Public Solicitor: Lawyers for the Plaintiff
Legal Training Institute: Lawyers for the Defendant

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