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Bernard v Marshall [2015] PGNC 3; N5850 (10 February 2015)

N5850

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 767 OF 2014

KEITH BERNARD
Plaintiff

V

ANDREW MARSHALL
First Defendant

KEN ROHEN
Second Defendant

NOSRIDA LIMITED
Third Defendant

Madang: Cannings J
2014: 17 November, 8 December,
2015: 10 February

TORTS – trespass to person – trespass to property – claim by plaintiff of unlawful entry to his home by defendant – alleged assault of plaintiff and destruction of personal property.

LAW OF EMPLOYMENT – wrongful dismissal – oral contract – whether contract lawfully terminated for cause; Employment Act, Section 36 (grounds for termination of contract) – whether employee paid proper amount of salary in lieu of notice.

PRACTICE AND PROCEDURE – cross-claim to action for breach of contract of employment – claim for rent due in respect of employer-provided accommodation and for money unaccounted for by the plaintiff.

The third defendant employed the plaintiff from April 2007 to June 2014. On 22 June 2014 the plaintiff's employment was terminated soon after a physical confrontation with the first defendant. The plaintiff was terminated without notice or money in lieu of notice. The plaintiff sued the defendants, claiming damages in respect of three causes of action: trespass to the person (he claims that the first defendant unlawfully assaulted him); trespass to property (he claims that the first defendant unlawfully entered his home and destroyed property); wrongful dismissal (he claims that his abrupt termination amounted to a breach of his contract of employment). The defendants filed a cross-claim, seeking damages in respect of occupation by the plaintiff, after the date of termination of employment, of his employer-provided accommodation. The defendants denied liability on the three causes of action and the plaintiff denied liability on the cross-claim.

Held:

(1) The claim for trespass to person was refused as the plaintiff failed to prove that he was the innocent party in the physical altercation between himself and the first defendant.

(2) The claim for trespass to property was refused as the plaintiff failed to prove that the first defendant entered his home without lawful excuse and damaged his property.

(3) The claim against the third defendant for wrongful dismissal was granted as the plaintiff proved that his oral contract of employment was not lawfully terminated for cause under Section 36(1) of the Employment Act and that he had a right to be paid salary in lieu of notice under Section 34 of the Employment Act; but he was not paid anything, and this amounted to breach of the contract of employment.

(4) The cross-claim was refused as the plaintiff remained in occupation of the property pursuant to a court order and it was reasonably to be inferred that his court-sanctioned occupation was rent-free.

(5) In summary the third defendant was liable in damages to the plaintiff for breach of the contract of employment.

Cases cited

The following cases are cited in the judgment:

Bal Bar v Maima Kora (2008) N3290
Christopher S Kondai v Lon Sike (2014) N5594
David Michael v Dennis Marus (2008) N3374
George Podas v Divine Word University (2013) N5443
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092
John Simi v Weni & Manidol Investment Ltd (2011) N4441
John Tindaka v David Kambu (2012) N4853
Manuel Gramgari v Steve Crawford (2013) N4950
Monica Angogi v Fred Yadiwilo (2014) N5605
Vere Kilao and Chemica Didiman Store, Kimbe v Bernard Tiau (2007) N5000

STATEMENT OF CLAIM & CROSS-CLAIM

This was a trial on the question of liability in respect of three causes of action in a statement of claim and two causes of action in a cross-claim.

Counsel

B B Wak, for the plaintiff
N Y Tenige, for the defendants

10th February, 2015

1. CANNINGS J: The third defendant, Nosrida Ltd, employed the plaintiff, Keith Bernard, from April 2007 to June 2014. On 22 June 2014 the plaintiff's employment was terminated soon after he had a physical confrontation with the first defendant, Andrew Marshall, at the plaintiff's employer-provided residence at Binnen Road, Madang. The plaintiff was terminated without notice or money in lieu of notice. The first defendant is Nosrida's Madang branch manager and the second defendant, Ken Rohan, is the company's general manager, based in Lae.

2. The plaintiff has commenced proceedings against the defendants. He claims damages in respect of three causes of action:

• trespass to the person (he claims that the first defendant unlawfully assaulted him);
• trespass to property (he claims that the first defendant unlawfully entered his home and destroyed property); and
• wrongful dismissal (he claims that his abrupt termination amounted to a breach of his contract of employment).
  

3. The defendants filed a cross-claim, seeking damages in respect of occupation by the plaintiff, after the date of termination of employment, of his employer-provided accommodation and for K8,000.00 cash not accounted for by the plaintiff.

4. The defendants deny liability on the three causes of action and the plaintiff denies liability on the cross-claim. A trial has been conducted on the issue of liability. These are the issues:

1. Are the defendants liable for trespass to the person?
   
2. Are the defendants liable for trespass to property?
   
3. Are the defendants liable for wrongful dismissal?
   
4. Is the plaintiff liable on the cross-claim?
   

1 ARE THE DEFENDANTS LIABLE FOR TRESPASS TO THE PERSON?

5. The plaintiff claims that he was with his family in his home on the evening of Sunday 22 June 2014 when the first defendant kicked open the door and came inside without invitation and searched for unauthorised persons who might be on the premises and assaulted him without lawful justification or excuse in front of his wife and children. He has given evidence in support of that version of events which is supported by evidence of his wife and a neighbour.

6. The evidence of the first defendant challenges that version of events. He testified that he went to the plaintiff's residence to approach him with an allegation that he had been seen driving an unregistered vehicle of the third defendant earlier in the day and that he was observed to be under the influence of alcohol. The first defendant testified that the plaintiff became angry when confronted with the allegations and grabbed him by the throat, so he turned to leave, at which point the plaintiff punched him in the head several times. This version of events was supported by evidence from neighbours.

7. This is the plaintiff's case and he bears the onus of proving on the balance of probabilities that his version of events is true and that it supports the elements of a cause of action in trespass to the person, which are that the first defendant violated his body and acted intentionally and unlawfully (David Michael v Dennis Marus (2008) N3374, John Tindaka v David Kambu (2012) N4853).

8. I am not persuaded that the plaintiff's version of events is the correct one. He has not directly refuted the allegation that he took out the vehicle, knowing that it was unregistered, and that he was under the influence of alcohol. I find the first defendant's version of events more believable. I find that in the physical altercation that occurred the plaintiff was not a passive victim. I find that the first defendant landed some blows on the plaintiff's body in defending himself, so in that sense the first two elements of the tort are established: the first defendant violated the plaintiff's body and he acted intentionally. However, I am not satisfied that the first defendant acted unlawfully. He was entitled to take reasonable steps to defend himself. A cause of action in trespass to the person has not been proven.

2 ARE THE DEFENDANTS LIABLE FOR TRESPASS TO PROPERTY?

9. I decide this issue in a similar way to the first. There are two competing versions of events and evidence in support of each version has been presented. The plaintiff bears the onus of proving that his version is the correct one and that it supports the elements of the tort of trespass to property: the first defendant entered his property, the first defendant acted intentionally, the first defendant acted without lawful authority, the plaintiff had a right to lawful possession of the property, and the plaintiff's enjoyment of the property was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440, John Simi v Weni & Manidol Investment Ltd (2011) N4441, Manuel Gramgari v Steve Crawford (2013) N4950).

10. I am not persuaded that the plaintiff's version of events – which includes an allegation that the first defendant kicked the plaintiff's television, a coffee table and cooking utensils, damaging property worth K850.00 – is the correct one. I find that the first defendant's version of events is more believable. I find that although the first defendant intentionally entered the plaintiff's property and that the plaintiff was in lawful possession of the property, the first defendant (as he was the plaintiff's immediate boss) entered the property with reasonable excuse and that he did not materially interfere with the plaintiff's enjoyment of his property. A cause of action in trespass to property has not been proven.

3 ARE THE DEFENDANTS LIABLE FOR WRONGFUL DISMISSAL?

11. I make the following findings of fact:

• the plaintiff was an employee of the third defendant under an oral contract of employment;
• the plaintiff was employed by the third defendant from April 2007 to June 2014;
• the first defendant, as branch manager of the third defendant, had authority to hire and fire staff;
• during the course of the physical altercation between them, the first defendant told the plaintiff that he was 'sacked' or 'fired' or words to that effect: it was an oral notice of termination of employment;
• no written notice of termination of employment was given to the plaintiff;
• the only written communication to the plaintiff after the oral notice of termination was a letter to him from the second defendant dated 24 June 2014, asking him to vacate the house by 27 June 2014 as he was no longer employed by the company and telling him that he and his family could travel to Lae on a truck at no expense to him and inviting him to call into the company office to collect his entitlements;
• the plaintiff did not accept the invitation to travel to Lae, he stayed put in Madang;
• the plaintiff was not paid any 'finish pay': he was not paid any money in lieu of notice or any repatriation expenses.
  

12. The plaintiff claims that the defendants breached the contract of employment by not paying him any money in lieu of notice under Section 34 of the Employment Act. The defendants argue that he was not entitled to anything as this was a case of termination for cause under Section 36(1) (grounds for termination of contract) of the Employment Act, which states:

An employer may terminate a contract of service without notice or payment instead of notice—

(a) where the employee—

(i) wilfully disobeys a lawful and reasonable order; or

(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or

(iii) is guilty of a fraud or dishonesty; or

(iv) is habitually neglectful of his duties; or

(v) is imprisoned for a period exceeding seven days; or

(vi) is continually absent from his employment without leave or reasonable excuse; or

(vii) is convicted of an offence or contravention of this Act or any other law relating to employment; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

13. There is some evidence to support the defendants' argument. In an affidavit admitted into evidence as exhibit D4, the first defendant stated at paragraph 9 that the reasons the plaintiff was fired were:

(a) that he was putting the lives of himself, the passengers and general public at risk by driving an unregistered motor vehicle on a public road;
(b) that he took the truck without authority (even if he has asked for permission to use that truck, permission would have been refused).
(c) he was intoxicated whilst driving the truck ... .

14. In principle, such reasons can amount to good grounds on which to terminate a person's employment for cause, for example under Section 36(1)(a)(ii). However, I find that in the circumstances of this case, termination of employment was not validly effected under Section 36 for the following reasons. First, the reasons for termination of employment were not clearly spelt out at the time of or immediately after oral notice of termination of employment. Secondly, the defendants' defence to the statement of claim did not plead any defence in terms of Section 36. Thirdly, at the trial, the submissions of Mr Tenige for the defendants did not specify any particular provision in Section 36 as justifying the termination of the plaintiff's employment without notice and without payment instead of notice.

15. As termination of the plaintiff's employment cannot be regarded, as a matter of law, as a termination for cause under Section 36, termination could only validly be effected by paying the plaintiff, under Section 35, the amount of salary that would have accrued to him during the notice period specified by Section 34(4) (notice of termination) of the Employment Act, which states:

Where there is no provision in a contract of service for notice of intention to terminate, the length of the notice shall be not less than—

(a) one day's notice if the employee has been employed for less than four weeks; or

(b) one week's notice if the employee has been employed for not less than four weeks and for less than one year; or

(c) two weeks' notice if the employee has been employed for not less than one year and for less than five years; or

(d) four weeks' notice if the employee has been employed for five years or more.

16. Here the plaintiff had been employed for more than five years so he was entitled to four weeks worth of salary in lieu of notice. He was not paid anything and that amounts to a breach of a term of his contract of employment. Mr Tenige submitted that it was the plaintiff's fault that he was paid nothing as he did not accept the offer to travel without cost to Lae to pick up his finish pay. I reject that submission. The plaintiff was not obliged to travel to Lae. This was a case of an employer having a legal obligation under the contract of employment to pay four weeks' salary to a dismissed employee. The third defendant failed to meet that obligation. The plaintiff has established a cause of action in breach of contract against the third defendant. I find that the first and second defendants have no personal liability as the contract of employment was only between the plaintiff and the third defendant.

4 IS THE PLAINTIFF LIABLE ON THE CROSS-CLAIM?

17. The defendants cross-claimed for unpaid rent at the rate of K300.00 per week of the employer-provided accommodation that the plaintiff occupied after the date of termination of employment. They also claimed K8,000.00 for cash allegedly given by a customer to the plaintiff, for which the plaintiff failed to account.

18. I reject both claims. The plaintiff lawfully occupied the house rent-free pursuant to orders of the National Court. As to the K8,000.00 claim the defendants failed to prove that this loss of cash was attributable to the plaintiff.

CONCLUSION

19. The plaintiff has failed to prove two causes of action and succeeded on one, and he has successfully defended the cross-claim. Neither side has emerged as a clear winner so they will bear their own costs. In the normal course of events these proceedings will proceed to a trial on assessment of damages on the wrongful dismissal action. However, rather than ordering an immediate trial or referring the matter to mediation, I will allow a short period for the parties to negotiate this issue. Some guidance as to what might be an appropriate award of damages will be found in my judgments in these cases: Vere Kilao and Chemica Didiman Store, Kimbe v Bernard Tiau (2007) N5000, Bal Bar v Maima Kora (2008) N3290, John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092, George Podas v Divine Word University (2013) N5443, Monica Angogi v Fred Yadiwilo (2014) N5605 and Christopher S Kondai v Lon Sike (2014) N5594.

ORDER

(1) The plaintiff's claims in respect of trespass to the person and trespass to property are refused.

(2) The plaintiff's claim in respect of wrongful dismissal (breach of contract of employment):

• (a) against the first and second defendants is refused; and
• (b) against the third defendant is upheld and accordingly the third defendant is liable in damages.
  

(3) The defendants' cross-claim is refused.

(4) The parties shall bear their own costs.

(5) The parties shall discuss in good faith the question of an appropriate award of damages and return to Court within three weeks to advise the Court whether a trial on assessment of damages is necessary.

Judgment accordingly.
________________________________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Gamoga & Co Lawyers: Lawyers for the Defendants