N8839

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1090 OF 2016 (CC 3)

BETWEEN:
STEVEN SAWE
Plaintiff

AND:
KEN PADAPU trading as EX-DISCIPLINARY
FORCES SECURITY SERVICES
Defendant

Waigani: Thompson J
2019:     31st May, 12th June

EMPLOYMENT LAW - Oral Contract of Employment – Sufficiency of Evidence

Counsel:

Mr S Sawe, in Person
Mr K Padapu, in Person

12th June, 2019

1.	Thompson J:	BACKGROUND:  The Plaintiff was originally from the Highlands, but came down to Port Moresby in 2005.  He did not have a house in Port Moresby, and so for the next 8 years he stayed in different places and with various relatives.   He had no fixed address.  

2.	In about February 2013, one of the Defendant’s relatives named Andrew Yawe (“AY”), told the Defendant that the Plaintiff had been chased out by his relatives, was sleeping in broken vehicles and empty classrooms, and needed help.

3.	According to the Plaintiff, on 4 February 2013 the Defendant sent AY to look for him.  In his affidavits, the Plaintiff said that AY told him that the Defendant was away in China, but had asked AY to look for him and engage him to do maintenance work at a property at 2 Mile, for which he would be paid.  He said that he did that work, and on 15 February 2013 he was paid K100 by the Defendant.

The Claim

4.	The Plaintiff said that on 16 February 2013 the Defendant offered him employment as a security guard at a Koki property, where he would also be accommodated, and be paid K150 per fortnight.  He said he did maintenance and provided security at the Koki property from 4 February 2013 to 22 July 2015, and he had kept his pay packets from his pay in that period.

5.	In his amended statement of claim, the Plaintiff pleads that on 4 February 2013 he entered into an oral contract of employment with the Defendant whereby the Plaintiff was employed as a maintenance hand and security.  He pleads that he was engaged to work as a guard at the Administrative College from 8.00 am to 5.00 pm seven days a week for K150 per fortnight, and was engaged as security and caretaker at the Koki property from 6.00 pm to 6.00 am seven days a week for unspecified payment. 

6.	The Plaintiff says that he performed these duties from 4 February 2013 to July 2015 when he left because he had not been consistently paid.  

7.	No particulars were pleaded of the hours or dates actually worked, the amounts actually paid, or the amounts said to be unpaid.  Copies of parts of pay packets were provided, showing amounts from K30 – K160 paid to the Plaintiff from September 2013 to April 2014.  One packet refers to the Plaintiff as a painter.  Other packets show the name of another person or show no name at all.

8.	The Defendant said that he had an informal arrangement with the owner of a Koki compound property to do maintenance work on some properties. He used his relatives to do the work and let them live in the Koki Compound.

9.	According to the Defendant, after hearing from AY that the Plaintiff had been chased out of his relatives’ accommodation, he offered to let the Plaintiff live in the Koki property.  The Defendant said that the Plaintiff paid no rent and carried out any minor maintenance that was required.   The Plaintiff agreed that he never paid rent.

10.	On 1 September 2013, the Defendant entered into a security contract to provide security by way of  9 guards at the PNG Institute of Public Administration.  He brought down some youths from the villages to work as guards, and let them live in the Koki compound.  He said that if a guard was sick or not at work, he had asked AY or the Plaintiff to work in their place, and paid them for that.  He said that he had only ever asked the Plaintiff to work on this ad hoc basis

11.	In April 2014, the Defendant’s security contract was terminated, and his security business ended.  He removed all his employees from the Koki property and repatriated them back to their villages.  He told the Plaintiff that he would also have to move out, that he could come and live with him at his home in Morata if he had nowhere else, but the Plaintiff refused.  

12.	The Plaintiff continued living in the Koki property, until after the Defendant found that the property had been broken into by rascals and the contents stolen.  The Plaintiff did not dispute the break-in, but denied that any property was stolen.   The Defendant has made a cross-claim for K30,000 for the alleged value of the stolen property.  

13.	The Defendant then demanded that the Plaintiff move out, he refused, and the Plaintiff was locked out of the property in October 2014.   The Plaintiff wrote to the owner in October 2014, saying that he had not moved out because he had not been paid for his cleaning and security work at the property.  He also had his clansmen write to the Defendant complaining about his treatment.  

14.	The Defendant said that the issue was brought up in his Church group, and so to express his regret at the lock-out, on or about 21 October 2014 he paid the Plaintiff K2550.  The Plaintiff had not referred to this in his pleadings or affidavits, but agreed in his oral evidence that the payment had been made, and said he had been forced to accept it although he did not want it.  
 
The Issues

15.	The primary issue is whether or not there was a contract of employment between the Plaintiff and Defendant.  There was certainly no written contract.  It is therefore necessary to assess the evidence relating to the employment, to determine if there was an oral contract.  

16.	The Plaintiff said he was employed as a security guard and maintenance man from 4 February 2013 to July 2015.  He says that on 4 February 2013 he was engaged to work as a guard at the Administrative College, and also at the Koki property.  There was no evidence of any work at the Administrative College, and it is reasonable to assume that he was actually referring to the Institute of Public Administration (“PNGIPA”).

17.	The Defendant did not enter into a contract with the PNGIPA until September 2013.  Prior to that, the Defendant’s work was maintenance work.  The security contract ended in April 2014.  The maximum period in which the Plaintiff could therefore have been employed as a security guard, was between September 2013 and April 2014, and this is consistent with the partial copies of the pay packets provided by the Plaintiff.

18.	The Plaintiff was living in the Koki property from February 2013 to October 2014.  It was not in dispute that he paid no rental at all during this period.  It is reasonable to infer that the Plaintiff was not employed as a maintenance hand, but that in exchange for being allowed to live rent-free, he performed some cleaning and minor maintenance work on the property.  

19.	In relation to caretaking or security at the Koki property, it is reasonable to infer that the Plaintiff was not employed as a security guard, but just lived in the property, along with the other people who were also living there.  When the other people were all moved out and repatriated in April 2014, the Plaintiff stayed on.

20.	There was no evidence that he was engaged by either the Defendant or by the owner to provide security there, only that he lived there, without paying rent.  It seems that the Plaintiff regarded himself as providing security or being a caretaker just by reason of his living there on the premises.   

Findings

21.	The Plaintiff said that he worked 12 hours a day and 7 days a week at the Koki property.  I find from the evidence that the true position was that he was not working as a security guard at the Koki property, but was merely living there.

22.	I also find that the Plaintiff could not have been working for the Defendant at the Administrative College/PNG IPA at all from February to August 2013, or after April 2014, because the Defendant had no security contract and did not provide security during these periods.   The Defendant produced evidence that the contract was only advertised for tender in May 2013, his tender was accepted on 20 August 2013, and he started on 1 September 2013.  It therefore could not have been true that the Plaintiff entered into an oral contract with the Defendant on 4 February 2013 to work as a security guard at the PNG IPA.

23.	The preponderance of the evidence was that the Plaintiff only worked as a guard at the PNG IPA on an ad hoc basis, between September 2013 to April 2014, if a guard was sick or off work.  There is no evidence that he worked there for 12 hours a day, 7 days a week, for 2 years and 5 months, or that he worked there for more than 6 days in any 1 month.  

24.	The evidence is not sufficient to establish that the Plaintiff entered into an oral contract of employment with the Defendant, and on the terms pleaded in the amended statement of claim.  The evidence is sufficient to show that the Plaintiff was allowed to live in the Koki property from  February 2013 to April 2014, without paying rent, that the Plaintiff was employed on a casual basis between September 2013 and April 2014,  that the Defendant stopped allowing the Plaintiff to live there in April 2014, but the Plaintiff remained there of his own volition until he was locked out in October 2014.  It is not clear if he subsequently continued to live there.

25.	Even if I am wrong, and there was an oral contract of employment, it could not have been for more than from September 2013 to April 2014, and it clearly ended in April 2014.   He could not have been employed either as a guard at PNG IPA since the security contract ended in April 2014, or as a maintenance man at Koki since April 2014, when the Defendant told him to move out and attempted to evict him.  There was no evidence of any employment of the Plaintiff since April 2014.

26.	As the Plaintiff’s employment as a guard was on a casual basis, then pursuant to Sections 33 – 35 of the Employment Act, it either came to an end when the work was completed, or was able to be terminated without notice.  

27.	As the Plaintiff had not been employed for one year of continuous service, he had no entitlement under Section 61 of the Employment Act to recreation leave.

28.	As there was no evidence that the Defendant employed 20 or more employees, the Defendant was not an employer under Section 4 (1) (a) of the Superannuation (General Provisions) Act, and so Section 76 of that Act was not applicable.  

29.	The Plaintiff produced no evidence to show that he had been employed by the Defendant on a full-time basis, either from February 2013 to July 2015 or for any other period.  The Plaintiff produced no evidence to show that he had worked any hours during this period for which he had been unpaid or under-paid.  

30.	There was sufficient evidence to establish that the Plaintiff received free accommodation in Port Moresby from February 2013 to at least October 2014, and that he worked on a casual basis as a guard at the PNGIPA property if the Defendant’s guards did not turn up to work, from September 2013 to April 2014.  No evidence was produced to show that the payments he received during this period, were in breach of any agreement between the Plaintiff and Defendant, or in breach of any legislation.

31.	The Plaintiff produced a letter from the Department of Labour, which was hearsay because the author of the letter had not either filed an affidavit or given evidence.  In any event, the calculations contained in that letter were based on assumptions as to the terms of the employment which were not correct, namely, that the Plaintiff had been employed as a security guard for 2 years and 5 months,  that he had worked for 56 hours per week throughout that period, that the Defendant was subject to the Superannuation (General Provisions) Act, and so on.   Their calculations were therefore inaccurate and irrelevant.  

32.	Furthermore, although accommodation in Port Moresby is notoriously expensive, the Plaintiff’s claim makes no allowance for the value of the free accommodation he received for nearly two years, or for the additional payment of over K2500 which he received from the Defendant after his employment had ended.   

33.	The Plaintiff has failed to establish on the balance of probabilities that the Defendant has breached either the terms of any agreement between them regarding his employment, or the provisions of any legislation relating to his employment. 

34.	The Defendant has failed to establish on the balance of probabilities that the break-in and alleged loss of property, was caused by the Plaintiff.   

35.	The Plaintiff’s claim, and the Defendant’s cross-claim, are therefore dismissed.  

36.	Each party will pay its own costs.
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