The Employment Act (Chapter 373) deals with the death of an employee in four places. Together they impose obligations that continue after the contract has come to an end.
Section 27 — the employer’s duties
(a) at the first practicable opportunity, notify a labour officer; and
(b) where the employee has dependants resident with him, comply with section 42 (repatriation of dependants); and
(c) in any case, comply with section 84 (final payment of wages).
Paragraph (a) is immediate and unqualified. Paragraph (c) applies in any case — whether or not there are dependants at the place of employment.
Section 84(3) — wages are paid to a labour officer
Where an employee employed under an attested contract dies before all wages and other amounts due to him have been paid, the employer shall pay those wages to a labour officer for distribution according to law.
The employer must not hand the money to whoever presents themselves as a relative. It goes to a labour officer, and distribution then follows the law of succession — a will admitted to probate, or the rules of intestacy under the Wills, Probate and Administration Act (Chapter 291), with custom relevant to the estate of an automatic citizen. Where no personal representative is appointed, the Public Trustee may administer the estate.
Section 85 reinforces the point for deferred wages: a payment of deferred wages made otherwise than in accordance with Part V is not a valid discharge to the employer. Paying the wrong person does not end the liability.
Section 42 — repatriating the dependants
Where dependants of an employee have been brought to the place of employment by the employer, an employment agent or a worker-recruiter acting on the employer’s behalf, and the employee becomes entitled to repatriation or dies, the accompanying dependants are entitled to be repatriated to the place from which they were brought, and the employer is liable for the expenses in accordance with section 41.
Where the employee dies and the usual place of abode of the accompanying dependants is a place in the country other than the place of engagement, the dependants may elect to be repatriated to that usual place of abode instead.
The employer is then liable for that journey — but only to the extent that it would have been liable for repatriation to the place of engagement (s 42(4)). Any excess falls on the family.
“Accompanying dependants” is defined in section 1: for a married employee, the spouse and children under 16 who, with the employer’s consent, reside with the employee in employer housing, or near the place of employment where it is more than 25 km from their ordinary residence. See repatriation of dependants.
Section 42A — the coffin and the journey home
Where an employee or any dependant of an employee who was brought to the place of employment by the employer (or an agent or recruiter on its behalf) dies — either during the period of service specified in the contract, or before completion of repatriation under the Act — the employer shall, on the request of a relative of the deceased, pay the expenses of:
(e) the coffin; and
(f) transportation of the deceased’s body to the deceased’s usual place of abode.
Three features are worth noting:
- It covers a dependant’s death as well as the employee’s.
- It applies where death occurs before repatriation is completed — so it can bite after the contract has ended.
- It is triggered on the request of a relative. The employer need not be asked by the estate or a lawyer; a relative’s request is enough, and it should be made in writing and dated.
The destination is the deceased’s usual place of abode — not necessarily the place of engagement.
Other consequences of the death
- Section 13 — where a contract is terminated, any contract between the employer and the spouse also terminates unless, within 48 hours of notice being given to the employee, the spouse notifies the employer that his or her contract is to continue and the employer agrees. See contracts of employment.
- Section 25(4) — where the employer dies, an unexpired contract is deemed transferred to his legal personal representative. See transfer of contracts.
- Section 126 — the employee’s right to housing and the position of a family remaining in employer accommodation.
- Workers’ compensation — a death arising out of or in the course of employment may found a claim under the workers’ compensation scheme, which is separate from anything in this Act. Section 6 confirms the Act does not relieve an employer of any duty or liability imposed by any other law.
What the family should do
- Ask the employer, in writing, to notify a labour officer under section 27(a), and take the officer’s name.
- Make the section 42A request in writing — coffin and transport of the body to the usual place of abode.
- If dependants were brought to the place of employment, claim repatriation under section 42, and consider the section 42(2) election to the usual place of abode.
- Do not accept an informal cash payment of the deceased’s wages. Under section 84(3) they go to a labour officer for distribution according to law, and section 85 means an irregular payment does not discharge the employer.
- Ask for the section 84 statement — current and deferred wages, and leave or money instead of leave.
- Deal with the estate — probate or letters of administration, or the Public Trustee. See wills and inheritance.
- Ask about workers’ compensation if the death was work-related.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 1, 6, 13, 25, 27, 41, 42, 42A, 84, 85, 126
- Wills, Probate and Administration Act (Chapter 291)
- Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.