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Kipia and Evangelical Lutheran Church of PNG v Tokali [1989] PGNC 31; N809 (21 December 1989)

Unreported National Court Decisions

N809

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 8 OF 1989
SAPOM KIPIA
FIRST APPELLANT
AND
EVANGELICAL LUTHERAN CHURCH OF P.N.G.
SECOND APPELLANT
V
HANENG TOKALI
RESPONDENT

Mount Hagen

Woods J
13 December 1989
21 December 1989

APPEAL - from District Court

EMPLOYMENT - Termination - No Written Contract - Term of Employment - Employment Act Ch. 373

Counsel:

Mr Gamoga for Appellants

Mr Kopunye for Respondent

WOODS J: This is the Appeal of Sapom Kipia as Chairman of the Board governing the Kotna Health Centre for the Medical Services Division of the Evangelical Lutheran Church of Papua New Guinea against a decision of the District Court at Mount Hagen awarding damages to Haneng Tokali for termination of employment at the Kotna Health Centre.

The facts are, and these are as found by the Magistrate, that the complainant was employed by the Evangelical Lutheran Church of P.N.G in their Health Centre at Kotna and had been so employed by the Church since about 1982. In 1986 the Church terminated the employment of her husband by secondment from the Government at the Kotna Health Centre and at the same time terminated the complainants services.

The Complainant, (Respondent in this Appeal) sued the Lutheran Church for damages from the termination of her employment. She claimed that under the terms of her employment she was guaranteed employment for as long as she required until she voluntarily retired and therefore in the circumstances of her case she claimed for loss of wages until she was able to obtain alternate employment in her chosen occupation.

The Magistrate found the following facts, that she was employed by the Evangelical Lutheran Church of Papua New Guinea through the Lutheran Health Services Division at the Kotna Health Centre and that she was terminated by reason of the fact that her husband had also been terminated. The Magistrate found that there was no written contract of employment and therefore her employment was an oral one under the Employment Act Chapter 373.

In applying the Act the Magistrate found certain terms and conditions. I find no error in most of the findings except I am unable to find on what basis he could find that the period of employment was to retirement at 55 years or sooner by resignation. There is no evidence anywhere to support that finding. Such a finding would have to be based on something in a written contract or by virtue of some legislation for example in Public Service Regulations or Determinations or some similar determination. But there is no such determination or regulations in this case. This is merely two private citizens or entities in an oral contract situation. In such a situation, Section 16 of the Employment Act clearly applies. Section 16 states “Not withstanding any agreements to the contrary, an oral contract of service shall be deemed to be for the period by reference to which wages are paid”.

Applying the Section to the case before me the Magistrate found that the wages were paid on a fortnightly basis. It is thus clear that the term of the service is a fortnightly term. It being a fortnightly term then such can be determined by a fortnights notice. This is supported by reference to Section 34 of the Employment Act as in this case the Complainant had been employed for over one year but less than 5 years. Thus the complainant could be terminated on 2 weeks notice.

Having erred the Magistrate then made a finding for damages on the basis of pay entitlements for the period from the termination till she was able to obtain another job.

Such an amount of damages was therefore wrong. The evidence does suggest that she was paid some money following her termination but the evidence is not clear as to what that was for. It can therefore be assumed that it was her termination pay plus entitlements.

It therefore appears that there is no outstanding claim against the Evangelical Lutheran Church and I therefore uphold the Appeal and quash the Orders made by the Magistrate.

Lawyer for Appellant: Warner Shand

Lawyer for Respondent: P. Kopunye