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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 618 OF 2000
BETWEEN
MUSAREWA ROBERT MUGARENANG
Plaintiff
AND
TELIKOM PNG LIMITED
Defendant
Lae: Gabi, J
2007: 9 November
PRACTICE & PROCEDURE – Employment – Employee underpaid – Employee entitled to difference in salary, benefits and other entitlements.
PRACTICE AND PROCEDURE – Pleadings – Plaintiff claims wrongful suspension – Basis for the allegation of wrongful suspension not pleaded in the Statement of Claim – Claim dismissed.
Cases Cited:
Motor Vehicle Insurance (PNG) Trust v John Etape [1994] PNGLR 596
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Counsel:
P Ousi, for the plaintiff
W Mapiso, for the defendant
DECISION
9 November, 2007
1. GABI, J: Introduction: This is a claim for payment of money under an agreement and damages for wrongful suspension.
2. The trial proceeded by way of affidavit evidence and oral testimonies. Musarewa Robert Mugarenang, the plaintiff, filed 3 affidavits dated 25 November 2005 (Exhibit P1), 6 September 2006 (Exhibit P2) and 11 September 2006 (Exhibit P3) respectively. Telikom PNG Limited, the defendant, filed the affidavit of Aigeno Rovanama dated 8 September 2006 (Exhibit D1). The plaintiff and Aigeno Rovanama gave sworn evidence at the trial.
3. Counsel for the defendant objected to the plaintiff’s affidavits being admitted into evidence on the basis that the affidavits contained matters that were not pleaded in the statement of claim. In other words, there was no basis for the evidence in the pleadings. I overruled the objection and admitted the affidavits into evidence on the ground that the defendant had not filed a notice objecting to the use of affidavit evidence pursuant to section 35(2) of the Evidence Act.
Background
4. To appreciate the case, it is convenient to set out the facts in chronological order. The plaintiff is a former employee of the defendant and commenced employment with the defendant on 27 February 1989 as a legal officer. On 1 December 1993, he was appointed as Acting Corporate Secretary and was confirmed to that position on 16 February 1995. The plaintiff held the position of Corporate Secretary until the corporatisation of the Post and Telecommunication Corporation (hereinafter "PTC") in January 1997.
5. Pursuant to the Post and Telecommunication Corporation (Corporatisation) Act 1996, PTC was corporatised; its assets, rights and liabilities were transferred to Papua New Guinea Telecommunications Authority ("Pangtel"),
Post PNG Limited and Telikom PNG Limited; and the Post and Telecommunication Corporation Act (Chapter 394) was repealed. Members of PTC staff were given the choice to transfer to any one
of those entities on the same terms and conditions of employment. In January 1997, the plaintiff elected to transfer to Telikom PNG
Limited. New members were then appointed to the Board of the defendant company and on 26 February 1997, the new Board appointed the
plaintiff as the Acting Company Secretary of the defendant.
6. On 1 January 1997, the defendant began to place its senior officers on 3 year contract except the plaintiff. Although the plaintiff was not placed on contract, he was paid various contract entitlements including motor vehicle allowance, housing allowance, school fee allowance and domestic market allowance.
7. On 4 March 1998, the position of Company Secretary was advertised internally on the News Magazine "Hotline" with a closing date of 27 March 1998. On 26 May 1998, the plaintiff was suspended from duty with pay pending an investigation into the alleged divulgence of confidential information relating to the affairs of the Board to the media. On the same day, the defendant appointed Dr. Florian Gubon as the Company Secretary while the plaintiff was on suspension.
8. Following the advertisement of the position of Company Secretary, his suspension on 26 May 1998 and the fear of being displaced, the plaintiff began discussions with the then Managing Director, Mr. Lalatute Avosa, in late May/early June 1998 for a mutual separation agreement. The proposal was that the plaintiff would separate from the defendant on the condition that he is paid the outstanding salary, benefits and entitlements. The plaintiff claims that Mr. Avosa agreed to the proposal and requested that details of the claim be calculated by the defendant’s Human Resources Division and provided to him for consideration. On 17 June 1998, the plaintiff submitted his claim to Mr. Avosa. On or about 20 August 1998, the Human Resources Division computed the various heads of plaintiff’s claim. It calculated that the plaintiff was entitled to a gross amount prior to tax of K242, 856.74. On 30 October 1998, Mr. Lalatute Avosa advised the plaintiff that his claim was rejected, that his suspension was lifted and that he will be retrenched on forced retrenchment effective from 30 October 1998.
9. Not satisfied with his final payout calculations in the retrenchment package, the plaintiff again wrote to the Managing Director of the defendant regarding the Mutual Separation Agreement on 4 January 1999. He claims underpayment of salary, benefits and entitlements from December 1993 to June 1998. On 15 January 1999, notice of forced retrenchment was given to the plaintiff. On 5 July 1999, the plaintiff again wrote to the defendant seeking payment of the balance of his outstanding claim. On 7 July 1999, the new Managing Director received the plaintiff’s letter of 5 July and wrote the following notations on the said letter:
"GMCS.
10. The plaintiff officially ceased employment with the defendant on 4 February 1999.
Issues
11. There are two issues before the Court:
Agreement
12. Counsel for the defendant submitted that as the plaintiff had not adequately pleaded the particulars of the agreement for the payment of K306, 146.35 in the Statement of Claim, no evidence should be allowed. He relied on the rule of pleading and evidence that if there is nothing in the pleadings of a party about an alleged fact, no evidence in support of that alleged fact can be adduced at the trial (see Motor Vehicle Insurance (PNG) Trust v John Etape [1994] PNGLR 596 and Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370).
13. The plaintiff claims that there was an agreement for payment of K306, 146.35 and the defendant has breached that agreement by paying only K74, 824.45. As a result, he is claiming the balance of K231, 321.90 (see paragraphs 6 and 9 of the Statement of Claim). The pleadings are adequate and sufficient to include the agreement. The affidavits set out the evidentiary basis for the agreement. I am unable to agree with counsel for the defendant and I allow the affidavits into evidence.
14. The discussions for Mutual Separation Agreement between the plaintiff and Mr. Lalatute Avosa, the then Managing Director, commenced in late May/early June 1998. A proposal was submitted to Mr. Avosa on 17 June 1998. The first paragraph of that letter reads:
"As discussed on 15th June 1998 and confirmed in the letter of same date I would like to leave Telikom through a Mutual Separation Agreement. I do note that you have agreed in principle for the separation through this method on 15th June 1998. I now put forth my pay out claim, which will have to be agreed to by both parties."
15. The letter sets out in detail the basis of the claim. The plaintiff is claiming 2 lots of payments. First, he claims that he was underpaid from December 1993 to December 1996 in that he was paid at Grade 8 instead of Grade 12. He is seeking payment of the difference in salary and other entitlements during that period. Second, he is claiming contract benefits and entitlements from 1 January 1997 to the date of separation from the defendant on 4 February 1999.
16. The plaintiff’s claim was assessed and calculated by Aigeno Rovanama, who was the contract administration officer at the time. His responsibilities include payment of salaries, wages, allowances and related benefits to senior managers. On 20 August 1998, the calculation was checked and approved by Mr. Jacob Polau, the Executive Manager of Welfare and Benefits Division. The total amount payable was incorrectly stated to be K242, 856.74. In his evidence, Mr. Aigeno Rovanama admitted that there was an error in calculation. He said the correct amount is K286, 146.35. Mr. Rovanama confirmed in cross-examination that the plaintiff was underpaid in that he was paid at Grade 8 even when he was appointed to the Grade 12 position of Company Secretary. The plaintiff only received the retrenchment payout. He has not been paid the outstanding underpayment, which he is rightly entitled to. The plaintiff’s evidence remains uncontested.
17. On 30 October 1998, the plaintiff’s claim was rejected by Mr. Lalatute Avosa. On 4 January 1999, the claim was raised with Mr. Thomas Tulin, the Managing Director, for consideration. Mr. Thomas Tulin never responded to the claim. On 5 July 1999, the plaintiff wrote to Mr. Philip Aki, the then Managing Director, who approved the claim. He wrote the following notations on the letter of 5 July 1999:
"GMCS
Signed
MD
07/07."
18. Attachment "E" is the calculation done by Mr. Aigeno Rovanama and approved by Mr. Jacob Polau, the Executive Manager of Welfare and Benefits Division, on 20 October 1998. The amount approved for payment is K286, 146.35.
19. The proposal for Mutual Separation Agreement was initially rejected by Mr. Lalatute Avosa on 30 October 1998. It was again placed before the Managing Director on 4 January and 5 July 1999 respectively. It was approved by Mr. Philip Aki on 7 July 1999. I am of the view that the Mutual Separation Agreement was entered into between the plaintiff and the defendant on 7 July 1999. The agreement is for the payment of the plaintiff’s outstanding salary, benefits and entitlements. Even if there was no agreement, it is clear to me that the plaintiff is entitled to his dues. It is only fair and proper that the plaintiff should be paid all his outstanding salary, benefits and entitlements.
20. It was suggested by Mr. Aigeno Rovanama that the plaintiff was not a contract officer and was subject to the Enterprise Agreement 1997. I am unable to agree with that suggestion. I find that the plaintiff was a contract officer commencing on 1 January 1997. As such, the Enterprise Agreement 1997 does not apply to him pursuant to clause 3 of the agreement.
21. The evidence before me is that the plaintiff has been paid a total of K74, 824.45 by the defendant. The Mutual Separation Agreement is for the payment of the pre tax amount of K284, 146.35 to the plaintiff. I am of the view that tax had to be paid on that amount prior to deduction of the amount of K74, 824.45. The plaintiff is entitled to the balance.
Suspension
22. On 26 May 1998, the plaintiff was suspended pursuant to clause 26(1) of the PTC Staff by laws. The letter of suspension was signed by Mr. Philip Aki, the Director of Human Resource. The reason given was "divulgement of information to the media relating to legality of the Telikom Board membership and construction of offices for the Minister and Vice Minister for Private Enterprises."(sic). The plaintiff alleges that the suspension was wrong for the following reasons: (i) that the decision was not made or approved by the Board or the Managing Director; (ii) the suspension was made by Mr. Philip Aki, who is not a "delegated officer" pursuant to clause 26(1) of the Staff by laws; (iii) that he was punished twice, demotion and suspension, for the offence of leaking confidential information to the media; and (iv) there was no basis or justification for the suspension as no investigation was ever done. None of these reasons were pleaded in the Statement of Claim.
23. I agree with counsel for the defendant that the plaintiff has not given the basis for the allegation that the suspension was wrongful. He has not stated his case adequately or sufficiently to afford the defendant a fair opportunity to meet it. I dismiss the plaintiff’s claim for wrongful suspension.
_______________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Telikom PNG Limited
Corporate Legal Services: Lawyers for the Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2007/68.html