Mairi Hoi v Arthur Somare and SBA Limited (2012) N4749

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 10 August 2012
• Court: National Court
• Citation: (2012) N4749
• Docket Number: WS NO 1315 of 2001
• Year: 2012
• Judgement Number: N4749

Full Title: WS NO 1315 of 2001; Mairi Hoi v Arthur Somare and SBA Limited (2012) N4749

National Court: Makail, J

Judgment Delivered: 10 August 2012

N4749

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1315 OF 2001

BETWEEN

MAIRI HOI

Plaintiff

AND

ARTHUR SOMARE

First Defendant

AND

SBA LIMITED

Second Defendant

Waigani: Makail, J

2012: 24th, 27th July & 10th August

ASSESSMENT OF DAMAGES - Breach of contract - Contract of services - Contract of Employment - Oral contract - Services rendered - Failure to pay wages on agreed rate, leave monies and repatriation costs - Special damages assessed based on terms of oral contract - Balance of outstanding wages, leave monies and repatriation costs - General damages assessed for frustration, distress and hardship - Exemplary damages - Proof of - Employment Act - Sections 10, 15, 40, 61 & 62.

Cases cited:

Papua New Guinea cases

Peter Kirin and KK Farmers -v- John Paroda (2004) N2599

Petrus -v-Telikom PNG limited (2008) N3373

Andrew Kinaram -v- Vanimo Forest Products Limited (2011) N4413

Dia Kopio -v- Employment Authority of Enga Provincial Government [1999] PNGLR 462

Lawrence Sausau -v- Joseph Kumgal (2006) N3253

Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958

Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103

Overseas cases

Bakec -v- Denkara Ashanti Mining Corp Ltd (1903) 20 TLR 37

Counsel:

Mrs E Wohuinangu, for Plaintiff

No appearance, for Defendants

JUDGMENT

10th August, 2012

1. MAKAIL, J: This is an ex parte trial matter, the defendants having shown no interest in defending the claim following entry of default judgment on 11th August 2005. The matter is for assessment of damages. The cause of action is one of breach of contract of services. The plaintiff was employed by the defendants and rendered services to them. They failed to pay him wages at the agreed rate, leave monies and repatriation costs. He claims balance of the wages, unpaid leave monies and unpaid repatriation costs including general damages for frustration, distress and hardship and exemplary damages.

Evidence

2. In support of the claim, he relies on the following affidavits:

(a) His affidavit sworn on 30th August 2005 and filed on 01st September 2005, (Exhibit “P1”);

(b) Affidavit of Gari Ranu sworn on 04th November 2005 and filed on 10th November 2005, (Exhibit “P2”);

(c) Affidavit of Digana Lohia sworn on 04th November 2005 and filed on 10th November 2005, (Exhibit “P3”); and

(d) Affidavit of Maimu Gamoga sworn on 24th August 2005 and filed on 30th August 2005, (Exhibit “P4”).

3. From the affidavits, the undisputed facts are; the plaintiff is a heavy plant operator from Tubuseria in the Central Province. He was employed by Hebou Constructions Limited in Port Moresby as a crane operator. At Hebou Constructions, he was paid at K3.00 per hour. The first defendant is a shareholder of the second defendant. On 03rd June 1995, Mr George Constantinou of Hebou Constructions approached the plaintiff and suggested to him to take up a job with the second defendant in Wewak in the East Sepik Province. At a brief meeting with the first defendant on 04th June 1995, he was offered a rate of K4.50 per hour, a return ticket for leave, and leave pay by the first defendant. He accepted the offer and flew to Wewak. He commenced work on 05th June 1995. He was based at a logging area at Kaup in Angoram until 15th September 1995 when his employment was terminated. He was paid at a rate of between K2.00 and K3.00 per hour.

4. According to the termination notice, the defendants’ reason for his termination on 15th September 1995 was that, there was a change in the management of the logging project at Kaup where the second defendant as Project Managers ended and Heybridge Pty Ltd was appointed as new Project Managers. Further, the plaintiff was re-employed under a new contract commencing on 19th September 1995. On 19th September 1995, he resumed work until 22nd December 1995. He spent 1995 Christmas at Kaup village. On 02nd January 1996, he resumed work at Kaup but operations came to a standstill after the operations manager was terminated. Operations recommenced on 18th March 1996 and he worked until 31st October 1996. He was due for his leave but was not paid leave monies and given a return ticket. As a result, on 03rd November 1996, he met his own costs and travelled to Irian Jaya for leave.

5. On his return from Irian Jaya on 29th November 1996, he reported for duty at Wewak but due to bad weather, he remained in Wewak until 06th December 1996. On 07th December 1996, he returned to Kaup and on 09th December 1996, he resumed work until 28th December 1996 when operations ceased. He was not paid wages during the stoppage. After 10 months, on 19th September 1997, the first defendant met with him at Kaup and he informed the first defendant of his intention to resign and return to Port Moresby. The first defendant refused and informed him of his redeployment to Maprik. He waited from 19th September 1997 until 19th January 1998 when he commenced work at Maprik. On 20th January 1998, he returned to Wewak to follow up his request to return to Port Moresby. He met with Sana Somare who advised him that he would look for a place for him to stay and something to do.

6. Following this, he was not given any termination notice but was informed to keep checking with the second defendant’s office in Wewak. He remained in Wewak to follow up his request. Meanwhile, the defendants did not provide accommodation for him. A Mr Maimu Gamoga accommodated him and provided food and sustenance during his stay in Wewak. He obtained odd jobs in between with Greenhill Investment Limited and Fletcher Morobe Constructions Limited. After a long wait, he requested the defendants to repatriate him to Port Moresby but the defendants failed. In the end, he paid for his own repatriation to Port Moresby.

The Law

7. Section 10 of the Employment Act provides that where a casual worker is employed by the same employer for more than six days in any one month, he shall be deemed to be an oral contract employee under Division 3. Division 3 provides for oral contracts. Section 15 which comes under Division 3 provides that where an employer and an employee enter into an oral contract of service, the employer shall, at the time of the engagement, make a written record of the terms and conditions of the contract. Where a dispute arises as to the terms and conditions of an oral contract of service, and the employer fails to produce a record, a statement by the employee as to the terms and conditions of the contract shall be conclusive evidence of those terms and conditions unless the employer satisfies the Secretary or an Arbitration Tribunal established under the Industrial Relations Act, 1962 to the contrary. see also Peter Kirin and KK Farmers -v- John Paroda (2004) N2599 and Petrus -v-Telikom PNG Limited (2008) N3373.

Application of law to the facts

8. On the evidence, I find there is an oral agreement between the plaintiff and the defendants. I also find the plaintiff was employed as a heavy plant operator (crane operator) at an hourly rate of K4.50. He was recruited in Port Moresby and transferred to Kaup in East Sepik Province. It was also a term of the agreement that the defendants would provide a return ticket for leave and leave pay to the plaintiff. The plaintiff rendered services to the defendants and they failed to pay wages at K4.50 per hour, leave monies and repatriation costs to him.

Assessment of Damages

9. The law is that, a plaintiff bears the onus of proving his losses notwithstanding entry of default judgment. The question is, has the plaintiff proven his losses? Firstly, he claims special damages. Under this head of claim, he claims outstanding balance of wages. He says the defendants were obliged to pay him at K4.50 per hour. Instead, they paid him between K2.00 and K3.00 per hour. The balance outstanding is between K1.50 and K2.00 per hour. As the rate fluctuated, I will strike a balance and apply K1.70 per hour. The first part of the claim is for the period he worked at Kaup from 05th June 1995 to 22nd December 1995, 18th March 1996 to 31st October 1996 and 09th December 1996 to 28th December 1996. This is a total of 448 days. I exclude the period from 29th December 1996 to 19th September 1997 because operations ceased and he did not work. I also exclude the period from 19th September 1997 to 19th January 1998 because he did not work. Multiplying K1.70 per hour by 8 hours per day by 448 days gives K6,092.80. I allow 10% for contingencies such as sick leave, absenteeism, weekends, etc... This reduces the total to K5,483.52. I award this sum.

10. The second part is for the period he would have worked if he had been employed at Maprik. This is from 19th January 1998 to 31st March 2001. The total number of days is 1,167. Multiplying K4.50 per hour by 8 hours per day by 1,167 days gives K42,012.00. Counsel submits that the plaintiff is entitled to receive this sum for outstanding wages for this period because no formal notice of termination was given to him. With...