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Hengene v TST Holdings Ltd [2005] PGDC 62; DC272 (21 December 2005)

DC272

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2148 OF 2005

BETWEEN

Paul Hengene
Complainant

V

TST Holdings Ltd
Defendant

Port Moresby: Bidar, Pm
2005: 2nd & 21st December

Claim for entitlements –
Unpaid final entitlements -
Pro-rate long service –
Annual leave –
Pro-rata leave pay –
Complainant claims that his former employer failed to pay his entitlements on termination –
Liability-
Whether or not defendant liable

Counsel
Paul Yange for Complainant
Sally Maladina for Defendant

DECISION

21st December 2005

BIDAR, PM: This action by Complainant against the defendant is for unpaid final entitlements, which he says the defendant owes him.

Complainant was employed by Defendant as Security guard on two different terms. He was first employed around January 1987 until February 1990. He was re-employed on 18th October 1995 up until his termination on 27th March 2003.

Between 1997 and 2003, Complainant was warned 9 times for the following reasons:

"(a) sleeping while on duty see annexure "A" to the affidavit of Sogo Lula Bua sworn on 21st October and filed on 27th October 2005, a warning notice dated 25th March 1997.

(b) absent while on duty, causing burglary to occur, see annexure "B" warning notice dated 7th August 2000.

(c) Under influence of alcohol while on duty, see annexure "c" warning notice date 16th September 2001

(d) Allowing unauthorized personnel in company premises, see annexure "D" warning notice dated 19th November 2001

(e) Not wearing uniform to work, see annexure "E" copy of warning notice dated 28th August 2002

(f) Late for work, see annexure "F" a copy of warning notice dated 18th November 2002

(g) Making false claim to the company, see annexure "G", copy of warning notice dated 29th November 2002

(h) Late for work, see annexure "H" a copy of warning notice dated 31st December 2002.

(i) Late for work, see annexure "I" warning notice dated 7th March 2003

He was terminated on the same date 27th March 2003 for insubordination and for failure to heed to numerous warning notices. He was paid his full and final entitlements in the sum of K899.80. This was paid into his bank account, see annexures "J" and "K". It is noted that, there is no evidence of whether a cash deposit or cheque deposit made into what account and when that was done.

The calculations made by Labour Department on behalf of the Complainant totals to K2, 546.89 which is more than defendant’s calculation as I alluded to, the defendant says, complainant’s final entitlements in the sum of K899.00 was paid directly into his bank account. As to when and what form of payment and details of bank account or deposit slip butt, there is no such evidence.

I have assessed whole of the evidence thoroughly together with the submissions, and I am inclined to the view that if one works for more than 7 years and depending on the salary rate, the final entitlements should easily exceed K1, 000.00. Complainant was employed as security guard at a net salary of about K110.00 each fortnight and for a period of more than 7 years, the entitlements in my view should be in the vicinity of K2, 000.00. I am of the view that a figure of K2, 073.55 for pro-rata long service, annual leave and pro-rata leave pay, is a more realistic figure than K899.00.

The main issue is whether or not the Complainant was paid his full and final entitlements. Defendant says Complainant had been paid his full and final entitlements on termination. There is documentary evidence showing calculations of his final entitlements. There is however, no evidence to show whether a cheque payment was made and deposited into complainant’s account or cash deposit was made. What bank and account name and number. No deposit slip butt to confirm such deposit.

On the other hand Complainant says he was never paid his full and final entitlements when he was terminated.

I have considered all of the evidence thoroughly as well as Counsels submissions. I am inclined to accept the evidence and submissions by the complainant and I find in favour of the complainant.

I enter Judgment for complainant in the sum of K2, 073.35, allow interest at the rate of 8% from date of summons to Judgment. Complainant shall have his reasonable costs paid by the defendants.

In Person: Complainant
Employers Federation: Defendant