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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 1418 OF 2003
BETWEEN:
JACOB OPA
Plaintiff
AND:
PNG HARBOURS BOARD LIMITED
Defendant
Waigani: Davani, .J
2007: 9, 17, 25 May
Counsel
T. Boboro, for the plaintiff
No appearance for the defendant
DECISION
25 May, 2007
1. DAVANI .J: The claim before me is one by the plaintiff for unlawful termination claiming that the termination is illegal, null and void and that the plaintiff should be either reinstated or that he be compensated in lieu of termination, compensation being outstanding salaries and entitlements from the date of termination to the date of judgment together with interest and costs. The matter went to trial on the issue of both liability and quantum.
2. Before proceeding to the claim, there are several matters that must be pointed out. These I will discuss under the part on preliminaries.
Preliminaries
3. On 7 May, 2007, the matter came up before me as a status conference. Only Ms Dawidi for the defendant appeared. She informed the court that Mr Kepo, the plaintiff’s lawyer was unable to attend because of a death within the organization that he works with. Ms Dawidi informed the court that both Mr Kepo and herself had agreed to proceed by way of submissions. She also handed up to the court a letter dated 7 May, 2007, signed by Mr Kevin Kepo, Principal Legal Officer for the Public Employees Association of Papua New Guinea (‘PEA’), letter advising that both counsel had agreed to complete the matter by way of submissions and that Ms Dawidi is to receive directions from the court on the submissions that will be filed by both counsel.
4. Ms Dawidi was unable to inform the court of the affidavit materials that the plaintiff was seeking to rely on for the trial. Apart from that, the endorsements on the court file did not show that directions had been issued in relation to the affidavits that would be relied on at trial. On that basis, the court could not issue directions in relation to the filing of submissions but made the following directions instead. These were;
"1. The hearing of today is adjourned to Wednesday, 9th May, 2007, at 9.30am when Mr Kepo for the plaintiff must appear and inform the court as to the affidavit materials it will be relying on.
5. On 9 May 2007, Mr Kepo did not appear. There was no explanation given to the court by either Mr Kepo or a lawyer from the PEA advising of his inability to attend. I then issued the following directions;
"1. the matter will proceed ex-parte in the absence of the plaintiff.
2. the matter will proceed by way of affidavit and submissions.
3. defendant’s counsel will file an affidavit before close of business today (9.5.07) to which will be attached written advice to Mr Kepo advising of the court’s directions of 7th May, 2007."
6. Such affidavit was filed by Ms Dawidi, sworn on 9 May, 2007, where Ms Dawidi deposed that she did speak with the plaintiff personally and advised him of the court’s directions of 7 May, 2007 and that she also sent Mr Kepo a letter informing him of the court’s direction. This letter is attached to Ms Dawidi’s affidavit.
7. I found that Mr Kepo has not shown any interest in prosecuting this matter. I directed that the matter will proceed ex-parte as ordered on 9 May, 2007. The ex-parte hearing commenced on 17 May, 2007. The court also had the option to dismiss the plaintiff’s claim but proceeded to deal with the matter, on a hearing on the merits.
Background
8. By amended Writ of Summons and Statement of Claim filed on 18 December, 2003, the plaintiff, a former employee of the defendant, sought damages for wrongful termination. He was formerly employed as a security officer with the defendant, during the period 16 February, 1998 to 12 August, 2001 when he was terminated. The plaintiff was terminated because of allegations that he had sexually assaulted a female on the night of 18 August, 2001. The plaintiff claimed that the offence did not fall within the jurisdiction of the PNG Harbours Board Act or the Papua New Guinea Harbours Board (Condition of Employment Determination) 1970 (‘Determination’) and that therefore the termination was unlawful.
9. In its Defence filed on 22 April, 2005, the defendant denied all allegations raised by the plaintiff and pleaded further that recourse would be had to the principles of common law and the relationship between employer and employee as provided under the Employment Act.
Plaintiff’s evidence
10. Neither the plaintiff nor his lawyer appeared to inform the court of the evidence he would be relying on, or that he would be giving verbal evidence. As it was, at the date of trial, there was no evidence before the court from the plaintiff.
Defendant’s evidence
11. The defendant relied on the affidavit of Tau Vini sworn on 30 November, 2006 and filed on 1 December, 2006, which deposed amongst others to the matters set out below.
The plaintiff was employed by the Defendant as a security guard, during the period 17 February, 1998 to 13 December, 2001.
He was an oral contract employee and his employment was governed generally by the terms and conditions in the Determination.
By letter dated 13 December, 2001, the defendant terminated the plaintiff pursuant to Clause 123 (g) of the Determination,
The facts surrounding the plaintiff’s termination are as follows;
i. On 18 August, 2001, the plaintiff who was off-duty at the time sexually assaulted one Vincent Auali’s daughter in her room at her house at Gordons by touching her.
ii. On receipt of a complaint from the girl’s father, who was then the defendants Minister, the defendant suspended the plaintiff with full pay on 21 August, 2001, whilst it conducted internal investigations into the incident.
iii. The plaintiff admitted during the investigations that he did in fact touch the young girl. Statements by the victim and another witness confirmed the allegation.
On 7 January, 2002, the plaintiff wrote to the defendant’s Management Appeals Committee appealing his termination.
On 25 February, 2002, the defendant’s Management Appeals Committee deliberated on the matter and upheld the decision to terminate the plaintiff.
On 13 March, 2002, the plaintiff accepted an ex gratia payment of K1,213.51 being his accrued leave entitlements.
Thereafter, by a letter dated 28 March, 2002, the plaintiff appealed to the PEA’s Board through his lawyers. The Board met on 2 June 2003 and notified the plaintiff by letter to his then lawyers, Patterson Lawyers dated 4 July, 2003, that it would uphold its decision.
The Issues
12. The issues for determination, as succinctly put by plaintiffs counsel are;
(a) Whether the plaintiff was unlawfully terminated?
(i) Whether he on an oral contract and can he be terminated at the will of the defendant;
(ii) Whether the defendant was obliged under the Determination to substantiate the alleged incidence of sexual assault either by itself, administratively or by way of a criminal investigation by the Police, before charging and terminating the plaintiff;
(iii) If the plaintiff was employed under a formal contract, whether the plaintiff was terminated for cause; and
(iv) Whether the plaintiff was properly paid all his entitlements upon termination.
(b) If the plaintiff was unlawfully terminated, whether he is entitled to the reliefs claimed of;
- (i) reinstatement;
- (ii) alternatively, compensation;
- (iii) loss of income from the date of termination to the date of Judgment;
- (iv) General damages including damages for loss of future earnings, hardship, frustration and suffering; and
- (v) Exemplary damages.
Analysis of evidence and the law
13. In the absence of evidence and submissions from the plaintiff, the court can rely only on the common law traditional position that the employer can hire and fire at any time with or without giving any warning or notice. I set out below extracts taken from the defendant’s written submissions, on this point, which included this case;
Paddy Fagon v Negiso Distributors Pty Ltd – N1900 which held that;
"In a master and servant relationship, the master has the right to hire and fire his servants. The same principle applies in private employment situations such as in this case as opposed to public sector employment or those employment concerned under the registered industrial organizations. Under common law a master does not have to give reasons for his decision to remove a servant and to replace one with another. That is his unfettered discretion and the common law respects. Common law is part of the under-lying law in Papua New Guinea which was adopted on Independence and over the years since the Courts in this jurisdiction have adopted and cherished this common law principle."
14. Section 34 of the Employment Act provides that an employer may, at any time, give notice to the employee of his intention to terminate him. The length of notice shall be in accordance with sub-paragraph (4) of that section.
15. But section 34 will not apply where an employee is employed under a written employment contract which makes provision for termination of the contract.
16. In Nazel Wally Zanepa v Ellison Kaivovo and the State (02/11/99) SC 623, the Supreme Court said;
"Whilst it may appear from Section 3 (1) (b) of the Employment Act that public servants do not come under that Act because their employment comes under the Public Service (Management) Act, that Act does not then give them any more rights then under the Employment Act. What the Public Service Act gives is the right to air any grievance about their employment, to someone other than their immediate superior, but it does not take away the common law right to hire and fire, or the converse that the law does not force a reluctant employer to retain the services of an employee that it does not wish to continue relationships with. The Employment Act there comes in and gives an employee the minimum right to notice. We find that there is nothing in that Act which gives any rights or claims to permanency and thereby any consequential right to damages based on any other term than that referred to in the Employment Act."
17. Therefore, whether or not a termination is unlawful shall be determined under the relevant contract under which one is employed. But if the employee is not employed under a contract, then the Employment Act shall apply. In saying that, the defendant referred the court to Teio Raka Ila vs BPNG, N2291, which case holds that principle.
i. Whether the plaintiff’s termination was unlawful?
18. The plaintiff’s employment is governed by the provisions of the Determination.
19. The plaintiff was terminated for disgraceful or improper conduct in accordance with Clause 123 (g) of the Determination on allegations that he had sexually assaulted a young girl.
20. Clause 123 (g) of the Determination states;
"123. An officer who –
...
(g) is guilty of any disgraceful or improper conduct either in his official capacity or otherwise; or
...
is guilty of an offence and is liable to be dealt with an punished under this part."
21. Furthermore, Clause 136 of the Determination provides for termination in the following terms;
"PART XII. Employees
136. The services of an employee may be dispensed with at any time by the Chairman."
22. The Notice of Suspension annexed to the affidavit of Mr Tau Vini sworn on 30 October, 2006, as annexure ‘A’ states that the plaintiff was suspended from official duties, with full pay, as at 21 August, 2001.
23. According to Mr Vini’s affidavit, based on the strength of the available evidence, following the suspension, the plaintiff was charged for having sexually assaulted one Stella Auali, in her room. The Notice of Charge is attached to Mr Vini’s affidavit as annexure ‘C’.
24. Mr Vini’s evidence is that the defendant then conducted a thorough investigation obtaining statements from the victim as well as other witnesses.
25. The Disciplinary Adjudication form which is annexure "E" to Mr Vini’s affidavit, shows that the plaintiff denied the charge, however the defendant considered that the plaintiff’s alleged actions directly contradicted the nature and requirement of his job as a security guard and therefore terminated him.
26. On 7 January, 2002, the plaintiff lodged an appeal against his termination, to the PNGPC Management Appeals Committee. The Appeals Committee deliberated on the matter and upheld the termination. By letter of 25 February, 2002, the plaintiff was advised of the Appeals Committee’s decision to uphold the management’s decision to terminate him. The defendant’s letter to the plaintiff advising of this decision is attached as annexure ‘F’ to Mr Vini’s affidavit.
27. On 6 March, 2003, exercising the next course available to him, the plaintiff lodged another appeal to the defendants Board, in accordance with procedure under the Determination. The defendant Board considered the appeal and upheld the termination. The defendant Board’s decision are attached as annexures "H" and "I" to Mr Vini’s affidavit.
28. Based on the evidence before this court, the plaintiff’s suspension and subsequent termination on the 13 December, 2001, was carried out in accordance with procedure laid out in the Determination. The plaintiff was suspended, charged and he appealed as provided for under the Determination.
29. The evidence is also that, although the defendant terminated the plaintiff, the defendant paid the plaintiff money in lieu of leave. This is referred to in paragraphs 15 to 17 of Mr Vini’s affidavit.
30. In relation to the plaintiff’s case, his lawyer did not appear at the status conference to inform the court of the evidence he would be giving or relying on. Nor did his lawyer appear at the hearing, although he was given sufficient notice. The plaintiff himself did not appear. As it is, the court proceeded without any evidence from the plaintiff.
31. Therefore, in the absence of evidence to the contrary, and based on evidence before me, I find that the plaintiff’s termination on the 13 December, 2003, was proper and lawful.
iii. Is the plaintiff entitled to reliefs sought?
32. The defendants submit that the plaintiff is not entitled to the reliefs sought in his statement of claim.
33. The plaintiff seeks to be reinstated to his former position which is a relief that contradicts the established position in law that in an action for unlawful or wrongful termination, the usual remedy is damages.
34. In Karava vs Byrne & Tourism Promotion Authority, N1805, (March 1999), on the relief of reinstatement to the plaintiff’s position, the judge observed that;
"the Law is well settled that where a relationship between a master and a servant has become noxious to either of them, the appropriate remedy is for damages for wrongful dismissal. The action of the Chief Executive Officer in terminating the plaintiff is an indication that there does not exist a good relationship. In the circumstances the plaintiff is entitled to damages for wrongful dismissal." (my emphasis)
See also Legu Vagi v. National Capital District Commission (2002) N2280.
35. &I find that the claim for for reinstatement must fail, because the plaintiff’s relationship with the defendant has become noxious.
36. &ـ the native plai plaintiff claims aims compecompensatinsation, lon, loss of income from the date of termination to the date of judgment, gl damages including damages for loss of future earnings, hardship, frustration and sufferinfering and exemplary damages.
37.  issu is as to the amoe amount to be awarded in damages. There are numerous cases on point. The case of Appa vs Wama [1992] PNGLR 395 holds the principle that;
"It is a general rule that the employee wrongful dismissed can recover damages for pecuniary loss resulting from wrongful termination to the equivalent of appropriate notice. In the usual case, damages will be equivalent to wages for the period of proper notice. Rarely can an employee claim for other damages. It is only in a fixed term contract that is not subject to determination by notice will damages be awarded for the equivalent of the salary of the entire period of contract if the dismissal was a breach of the contract..." (my emphasis).
38. o rlser tf Pama Anio v Ao v Aho Baliki and Ors (2004) N2919, Legu Vagi v National Capital District Commission (supra), Felix Ramram vs National Broadcasting Commission and Ors, N1110. In all these cases the Court held that the measure of damages is usually the period of notice unless the plaintiff was a contract employee which contract provides otherwise.
39. ҈&Even if n if the plhe plaintiff’s termination is deemed unlawful, the plaintiff is only entitled to his salary and entitlements for a period of two weeks in accordance with section 34 (4) (c) of the Employment Act.
40. The plaintiff was paid his annual leave entitlements and so he is only entitled to his salary for two weeks. In this case, I have found the termination to be lawful. Therefore, the plaintiff is not entitled to any other payments apart from what he has already been paid which is what he is legally entitled to.
41. ـ As regarregards the plaintiff’s claim for exemplary damages, a Court can only award exemplary damages as a mark of its disapproval of excessuthorve ac by State authorities like the Police, ice, resulting in violations of constitutiitutional onal rights. (See Peter Kuriti v The State [1994] PNGLR, 262).
42. ҈I tind that the plai plaintiff’s constitutional rights have not been violated in any way.
Formal orders
43. The overwhelming evidence before the court at thintif lawfulawfully tely terminarminated, that he was given the appropriate payment in lieu of notice and that therefore, he is not entitled to any claims made in the Writ of Summons and Statement of Claim.
44. The plaintiff will also pay the defendant’s costs of the proceedings, to be taxed if not agreed.
Allens Arthur Robinson Lawyers: Lawyer for the defendant
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