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Eseto v Ball [2007] PGDC 102; DC640 (24 September 2007)

DC640

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 83 of 2007

BETWEEN

SAVIE ESETO
Complainant

AND

BARRY PAUL (BALL)
Defendant

Goroka: F MANUE
2007: March 27, April 24, July 24, September 24

CIVIL - Law of Employment – Employment of casual – whether the complainant was employed as a casual – whether the calculated entitlement be accepted as his final entitlement.

HELD - Complainant was a permanent employee as he had a time to work and paid on a regular basis on a regular scale.
- The calculations are accepted as final entitlement.

Cases Cited
Nil

References

1. Sections 10, 15 of the Employment Act
2. Sections 35, 36 of the Evidence Act
   

Counsel
Complainant: In Person
Defendant: Mr. Umba of Umba Lawyers

24 September 2007

REASONS FOR DECISION

F Manue: This is a claim for unlawful termination and termination entitlement against Barry Ball (Paul), the defendant. He is claiming K2, 391.04 for twenty three (23) years of service rendered to the defendant.

2. The issues are whether the defendant was unlawfully terminated, and whether he was a casual or permanent employee when terminated. .

3. Finally whether the calculation by the complainant through the labour office should be accepted as a final entitlement. The case had to be adjourned several times for various reasons, one of which was to organize for an English translator for the defendant who preferred using English in Court.

4. The complainant called three (3) witnesses including the complainants own testimony.

5. Kevin Tema testified that Savie Eseto had been employed by Barry Ball on a full time basis for the last 23 years. He stated that he lived with the complainant at Banana Block, once he was a child and for the last 41 years. That was how he knew that the defendant employed the complainant who worked for him and no one else.

6. Savie Eseto testified that he commenced work for the defendant in 1983 until he was terminated in 2006. He stated that he worked on a full time basis, for the defendant and no one else for the last 23 years.

7. He stated that upon termination, he was not paid his final entitlement. He then complained to the labour office in Goroka. The labour office did a calculation which was given to him and in turn he had it served on the defendant. He denied any wrong doing before being terminated.

8. As to the point of leave, he stated he has never been given leave, accept for the one occasion when he was given only K50.00 and a K300.00 leave pay. During employment he stated that he normally commences work at 8:00 am and finishes at 4:00 pm. He was paid K120.00 every fortnight.

9. The nature of work he did was general cleaning, washing and at times did some cooking for the defendant.

10. In 2006, when he took leave he returned to the defendant and asked to continue in his employment but refused by the defendant. The complainant also called Noksy Savie as his third witness.

11. She testified that Savie worked for the defendant on a full time basis from 8:00 am to 4:00 pm for the last 23 years. She also stated that she worked for no other person during that period.

12. She denied that Savie left work on his own accord, but terminated by Barry Ball.

13. The defence filed a defence. It denied employing the complainant on a permanent basis but as a casual employee.

14. It also denied that the complainant worked for the defendant full time as he also worked for others within the vicinity of the area the defendant resides. On that basis, the defendant was not required to pay accrued long service leave and wages in lieu of the notice.

15. Following these pleadings, the defence called one witness, who was the defendant himself. He stated that the complainant was formerly employed by his next door neighbour, who left. When he left the defendant employed the complainant. He said, he did not recall when the complainant commenced work for him. He stated that the complainant did general house work and washing, from about 9:00 am and knocks off before he arrives home normally after 5:00 pm when he himself stops work.

16. He stated that he pays the complainant K120.00 each fortnight, before he decided to leave. In answer to examination by counsel, he said that the complainant was working on and off, and worked for his next door neighbour as well.

17. He also admitted paying the complainant K300.00 holiday pay which the complainant had taken.

18. He stated that when the complainant left for holiday he employed a female permanently.

19. What was the employment status of the complainant at the time of his termination?

20. The complainant and his witnesses stated that he had been employed by the defendant for twenty three (23) years. That calculates to 1983 as the commencement time when he first worked for the defendant.

21. This fact is not disputed, it seems. This is because the defendant does not recall when he first employed the complainant. He only recalled how the complainant ended up being employed by him.

22. I accept that the complainant was in employ by the defendant for that duration. The complainant and his witnesses stated 8:00 am to be the time he commenced work every day from Mondays to Fridays and knocks off at 4:00 pm.

23. This evidence is generally accepted by the defendant. He only disputes the precise time of commencement as 9:00 am other than 8:00 am.

24. I accept the timing by complainant. Defendant would have left for work by 8:00 am and would not be in a position to keep a record of when the complainant turns up at work. He would not be in a position to tell when the complainant knocks off, as he returns home after 5:00 pm when he himself knocks off work.

25. There is evidence from the complainant that he is regularly paid K120.00 fortnightly. There is no evidence that he has ever been paid less than K120.00 each fortnight. This shows that the defendant accepted the services provided to him by the complainant on the given times by the complainant as from 8:00 am to 4:00 pm each day for five days a week for the last twenty three (23) years.

26. The claim by the defendant that the complainant was also employed by others as well is rejected given the facts alluded above.

27. Given the circumstances that the complainant had been in employee of the defendant since 1983, and that he had continuously worked for the defendant from 8:00 am to 4:00 pm, with a regular salary of K120.00 fortnightly. I consider that he was employed on a full time basis, although under Section 10 of the Employment Act he was a casual worker.

28. The defendant failed to keep written records of terms of employment of the complainant as required by Section 15 of the Employment Act.

29. Had he kept such written records of the oral contract, the issue of whether the complainant was a casual or full time employee may have been answered by the records.

30. The defence submitted that there was no evidence called to substantiate the total calculation of K2, 451.04 and that the onus of calling, the person was the responsibility of the complainant.

31. Whilst the onus was on the complainant to call that witnesses, it is equally responsible for the defence to have filed a notice of intention to file a notice of cross-examination of specific witnesses under Section 35 and 36 of the Evidence Act.

32. The notice in my view is important so that the other party is notified as to which witnesses to organise to appear in Court for that purpose. It is just as important to litigants who are ordinary citizens so that the Court may advise them when legal counsels do not represent them.

33. There is evidence by the complainant that he lodged his complaint to the labour office in Goroka, and that the calculations were prepared by an officer of the labour office. I infer that the same information, as given in evidence would have been given when the calculation was made. These would be his tenure of employment, time he commences and knocks off work, type of work he did and that he was terminated.

34. He stated that after the calculations, he had served the labour office document which I take as the “Final Entitlement Calculation”, was served on the defendant.

35. On these basis I accept on the balance of probability that the complaint was a full time employee of the defendant for twenty three (23) years, who has not been paid his final entitlement of K2, 391.04.

36. As to the claim for wages in lieu of notice, I find that there is no evidence that such notice was given. Evidence by the complainant is that when he returned to the defendant for duty resumption, the defendant told him that he had hired a female permanently. That was when he learnt that he had been terminated on that basis I would also award one (1) week pay in lieu of notice.

37. On the balance of probability I find that the complaint is made out and judgment is entered for the complainant accordingly.

38. Order.

Complainant: In Person
Defendant: Mr. D. Umba of Umba Lawyers