Adifaka v Mani [2017] SBMC 40; Civil Case 174 of 2015 (4 September 2017)

IN THE CENTRAL MAGISTRATES COURT )
OF SOLOMON ISLANDS )

CIVIL JURISDICTION

Civil Case No. 174 of 2015

BETWEEN: CHARLES ADIFAKA CLAIMANT

AND: LESLIE MANI DEFENDANT

Date of Hearing: August 11, 2017
Date of Ruling: September 4, 2017

Claimant in person
M.B. Hou for the defendant

JUDGMENT

1. The claimant, Charles Adifaka (‘claimant’), instituted this claim against the defendant, Leslie Mani (“defendant”), for payment of housing allowance during the tenure of his employment. In the claim, he pleaded the sum of $2,888.00 for unpaid housing allowance and costs.
   
2. The history of the case showed the defendant had operated a firm called Solomon Security Services. The core function of the firm is to provide security services whereby individuals were recruited or employed as security guards.
   
3. The claimant was employed by the defendant as one of the security guards. His employment was formalised by entering into a written agreement titled “PARTICULARS OF TERMS AND CONDITIONS OF SERVICE OF CONTRACT” with the defendant on 31^st July 2013. That agreement essentially covered the terms and conditions of his employment.
   
4. The period he worked for the defendant was from February 2013 to January 2015. This was not denied by the defendant in his amended statement of case^[1].
   
5. The claimant averred that according to clause 2.8 of the agreement, he was entitled to 5% housing allowance on fortnightly basis. The defendant has failed to pay him his housing allowance during the entire tenure of his employment and in his view, it was a breach of the defendant’s contractual obligation.
   
6. A total of 76 fortnights the housing allowances were not paid to him. He tendered 16 copies of some of his payslips as justification to show that no figures were entered into the housing allowance section in the breakdown of the payments. He said that some of the copies of his payslips were given to his former solicitor Allan Tinoni of the Public Solicitors (PSO), but the payslips were lost when Tinoni was on a lengthy sick leave and after his desk had been occupied by another staff at the PSO.
   
7. The defendant denied the claim and said the housing allowance was already included in all the fortnight payments. The defendant in a letter dated 14^th August 2017 however, retracted and asserted that the claimant was only paid for 27 paydays. This is a significant change to his amended statement of case. A total of 27 payslips were provided to show the breakdown of the payments that were said to be paid to the claimant.
   
8. The issue for me to decide is simple and that is, whether or not the claimant had been paid the housing allowances during the term of his employment.
   
9. I have looked through the payslips tendered/filed to the Court by both parties and noticed the payslips tendered by the claimant stand to be credible. They have the logo of the company on the top left corner of the payslips and did have the section of the housing allowance. They resembled 3 copies of the original payslips for pay periods 04/03/2014, 27/05/2014 and 28/10/2014 initially tendered by the claimant. The payslips tendered by the defendant immediately before the trial did not have the housing allowance in the payment breakdown sections. The reason why it was omitted remains unclear and clearly questionable. A simple calculation of how payments received by the claimant for those three original payslips would reveal that the 5% housing allowance was not paid at all.
   
10. For all the payslips tendered by the claimant, they did not have any monetary figures entered into the housing allowance section in the breakdown of a fortnight payment. They all appeared blank and one would wonder whether the defendant ever considered or actioned clause 2.8 of the agreement at all.
    
11. I find the claimant’s case is entrenched. Relevant to the issue, in any business entity where housing allowance is paid, it is prudent for the entity to set out in clear terms in a payslip the housing allowance to be paid for an employee. That section must contain how much an employee is paid for the housing allowance each fortnight since it is an entitlement for employees. This is to ensure transparency and integrity of the entity in terms of remuneration of its employees and more importantly, to avoid any complaints or fraudulent conduct on the part of the employer/entity. This requirement is essential when the employment was governed by a written agreement like the present case.
    
12. The omission to fill in the housing allowance section as appeared in the present case speaks volume of how the defendant had failed to pay the claimant the housing allowance as agreed upon. The technique of not recording in the payslip the housing allowance but said it was already included in the fortnight pay is an accounting method orchestrated to deceive the employees. It may easily create an avenue where the employer/entity may manipulate the payments to withhold any rightful payment such as the housing allowance that supposed to be paid to the employees. This can be very common in a work environment where it is dominated by uneducated employees where they can be easily agreed or even deceived by the payment explanations such as the present case.
    
13. In a Papua New Guinea case of Tom Gesa v Bernard Kipit^[2], the Court has made it clear that to ascertain the terms of the agreement that the parties had agreed to, is to look at the actual wordings of that agreement. In that case, Kandakasi J, stated:

“The question that I need to consider therefore in this case is this, what did the parties agree to in terms of the written contract between them? This requires an interpretation of the terms employed by the parties in their contract to the exclusion of any extrinsic evidence.”^[3]

14. Clause 2.8 of the signed agreement is clear that the claimant is entitled to be remunerated at 5% of his basic fortnight payment for housing allowance. That will be included in his fortnight payment. In order to know with certainty whether or not that payment was included in a fortnight pay can only be ascertained by reference to the payslips. That is the document one can tell whether or not the housing allowance is paid.
    
15. Unfortunately, this did not occur in this case. Not only that, but when one looks at his fortnight salary for example, it clearly did not include any payment for the 5% housing allowance. The defendant is privy to the agreement to make that payment and his failure to do so is unfortunate, but a clear a breach of his contractual obligation.
    
16. This is a straight forward case and thus, I am satisfied that the claimant is entitled to be awarded the judgment sum of $2,888.00.
    
17. Pursuant to Rule.17.65 of the Solomon Island Courts (Civil Procedure) Rules 2007 (Rule), I award simple interest at the rate of 5% per annum on the amount of judgment from the time the claim was filed (24/06/2015) until the day the judgment is entered (4/09/2017).
    
18. Under Rule 24.23, the claimant is not entitled to costs but only disbursements. I have looked at the copies of the receipts provided by the claimant in terms of the transport expenses but could not find the plate numbers of the taxis that purportedly transported him. The hand writing seemed to be from the same person probably on the same day with the same biro. Also, in terms of the bus fares, it appears that in 2016, a total of 21 occasions he travelled by bus to attend or follow up with this case and again, a total of 21 occasions this year for more or less, the same reasons.
    
19. For the whole of last year (2016), I have looked at the record and noted that this case was not mentioned at all. For unknown reasons, it remained stagnant at the Central Magistrate’s Court Registry section. I find it difficult to accept the explanation offered by the claimant that he travelled on 21 occasions last year to attend to this case or made follow ups when in reality, there was no proceeding for this case in 2016. If indeed he made such follow ups then it is expected that this case should have been mentioned last year. Unfortunately, this did not occur.
    
20. For this year, only four occasions this matter was mentioned including the hearing date. This again raises the truthfulness of the explanation of the expenses put forward by the claimant for this year.
    
21. Having those doubts in my mind, I decline to award any disbursement for transport expenses but of the view that any transport expenses incurred by the claimant can be vindicated or accommodated in the interest of the judgment sum awarded herein.
    
22. The only disbursement I have decided to award is for the defendant to reimburse $115.00 as cost of the filing fee apart from the judgment sum.
    
23. To formalise the reasons narrated herein, I hereby issue the following Orders:
    
    1. The defendant is ordered to pay the claimant the judgment sum of $2,888.00 with 5% interest per annum backdated to 24^th June 2015 to the date of this judgment.
       
    2. Consequent to Order 1 above, the defendant is also ordered to pay $115.00 as cost of filing fee.
       
    3. The claimant is at liberty to apply for enforcement orders after 21 days if the defendant fails to comply with Orders 1 and 2 above.
       

.................................................................................................................
THE COURT

(Augustine Aulanga – Principal Magistrate)

---

^[1] Filed on 15^th December 2015
^[2] (2003) N2457
^[3] Referred to in paragraph 14 of Saiho v Solomon [2016] PGNC 282; N6474 (7 October 2016)