DC991

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

COMPLAINT NO. DCC 308 OF 2008

BETWEEN:

SAMSON SULI
Complainant

AND:

TOLIGAI SECURITY SERVICE LTD
Defendant

MADANG: E Wilmot (DCM)
2009: 1st June 2009

CIVIL – Unpaid entitlements – resignation of worker – part payment of entitlements

CIVIL – Deduction for disciplinary infringement – Part of company policy – policy not evidence – no evidence of actual notices to Complainant – 

Cases Cited
Nil 

References
Nil

Counsel:
Complainant: In Person
Defendant: Mr Kalasim (Managing Director - Toligai Security 
Service)

Introduction:

1.	(DCM WILMOT) This claim was brought by was of a complaint; summons to person upon complaint and Affidavits in support sworn by Samson Suli all filed on 8 October 2008. The claim is for moneys owed by the Defendant Company in unpaid entitlements. The claim is for K2269.94

The Facts:

2.	The Complainant began work with the company as a static guard in March 1996 till December 2005. During is employment he was paid K129.60. The Complainant’s standard rate was 90toea an hour. He worked on 12 hour shifts on 12 day rotation with 2 days off. 

3.	Around December 2005 he resigned on his own accord where he was paid about K500 for his tenure with the company.

4.	During his employment the company would deduct on average between K5 and K12 every fortnight. These deductions were made for disciplining the Complainant for being later failing to answer the radio and other infringements committed by the Complainant.

5.	In 2006 the Complainant brought the matter to the Madang Provincial Labour office for clarification on his final entitlements. The Provincial Labour office calculated that the Defendant Company had underpaid the Complainant by K774.20

6.	After two letters and a meeting was convened for the Complainant and Defendant Company and officers of the labour department. At the meeting at the provincial labour office the Defendant Company admitted to underpaying the Complainant. The Defendant Company made a advance payment of about K250 and agreed to paying the remaining balance later. The balance remaining was K524.20

Issues:

A.	Whether the Defendant Company has settled the amount owed to the Complainant?

B.	Were the deductions lawful?

Issue 1:	Whether the Defendant Company has settled the amount owed to the Complainant?

7.	In defence the company admits to owing the Complainant K525.20 but states that they have settled the K525.20 leading evidence with a copy of a cheque butt dated 12 December 2005. The Complainant states he has not been paid the outstanding amount after the initial K250 part payment.

8.	I am inclined to believe the Complainant. The date of the cheque butt does not fall within the time line of events. The negotiation for non payment of outstand monies owed took place in 2006. In fact letters were sent out to the Defendant Company around 2006. So how could the Defendant Company settle the balance in 2005. further an admission was made by the Defendant Company in 2006 as to owing the Complainant moneys during the scheduled meetings.

9.	In 2006 the Defendant Company made part payment of K250.00, leaving a balance of K525.20 to pay.

10.	I am of the view that the evidence lead by the Defendant Company as to settling the outstanding monies is deceiving. It appears that the K520 alleged to have been paid was never paid. What was brought this court to this conclusion was that the company initially paid as the Complainant’s finish pay and not the balance which is owed. Further the cheque butt reflects a payment of 524.00 to the Complainant not KK524.20 which is outstanding. the amount reflected on the cheque butt appears to be the Complainant’s final entitlement not the balance which the company was to pay.

Issue 2:	Were the deductions lawful?

11.	As to the claim for "unlawful" deductions the company states that it is company policy. I note also company policies are drawn up to govern the workings of a company. They show procedures of the company structure of the company and disciplinary matters to name a few. 

12.	The deductions were made to penalize its workers for disciplinary infringement. The form was brought to the court attention. the deduction were made in compliance with the policy of the company. The policy was never tendered into evidence. 

13.	I note during the time of employment the Complainant and Defendant Company were in an Employer employee relationship. There relationship was guided by the following condition, the Complainant would work for x amount of hours and the Defendant Company would remunerate him at the set rate times the hours the Complainant worked.

14.	Here we see the Defendant Company’s relying on the defense that these deductions were made due to company policy. The Complainant claims that he was never informed of the policy. And upon questioning the deductions he was told that was the policy. I am of the view that the policy was never informed to the Complainant.

15.	I find that these deduction made were not proper. Further the Defendant Company has failed to bring evidence of these infringements. The form submitted was a blank copy. with the number of breaches the Complainant must have been a very bad employee to be in breach of company policy regularly. 

16.	If the Complainant did commit these infringements then copies of these infringements or disciplinary notices should have been entered and shown to the Defendant Company and a copy made available to him. 

17.	There should be numerous copies of disciplinary notices for Samson Suli for the ten years he was employed there considering these deductions appeared on a regular basis. Yet none were brought to court and evidenced. It is only proper to inform the Defendant Company of his infringements with the policy. 

18.	The Complainant has a right to know why his salary has been deducted. There must be reasonable explanation as to why these deductions were effected and it must be understood. A simple answer of it is company policy is not reasonable an explanation.

19.	I note also on average K10.00 was deducted from the Complainant’s salary. That works out to about one days work for the Complainant. That is quite a lot of hours and money for a lowly paid worker. 

20.	In my view the deductions made by the Defendant Company were unlawful. The Defendant Company has without a good reason has deducted these monies from the Complainant. These are monies the Complainant has worked for. If they were deducted as part of the companies disciplinary acts the Complainant was never informed of them. 

21.	I believe these deductions were made at the whim of the company. This would explain the lack of actual disciplinary notices with the Complainant’s name on it, considering firstly the frequency of these deductions and secondly the number of years the Complainant worked for the Defendant Company there should be countless copies of these notices on the Defendant Company’s files.

22.	I find for the Complainant and order that the Defendant Company to pay:

a.	for loss of entitlements K524.20

b.	I order the Defendant Company to reimburse K1,137.94 being for un authorized deductions made on the Complainant’s salary

c.	Punitive damages K200

d.	Interest at 8% per annum

e.	Cost K608.00

23.	I made orders accordingly.

Counsel:

Complainant: In Person
Defendant: Mr Kalasim (Managing Director - Toligai Security Service)