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National Court of Papua New Guinea |
PAPUA NEW GUNEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO.793 OF 2013
BETWEEN:
PETER KOLLY
Plaintiff
AND:
JOHN BRUTNALL
First Defendant
AND:
MARY POPELIAU
Second Defendant
AND:
DONNA KABANA
Third Defendant
AND:
BANK OF SOUTH PACIFIC LIMITED
Fourth Defendant
Waigani: David, J
2020: 27th April
CONTRACT OF EMPLOYMENT – termination –disciplinary procedures in employment contract – principle of the right to hire and fire an employee at will for any reason without giving a right to be heard and without providing any reason - breach of banking policy and procedures - gross misconduct warranting summary dismissal without notice - re-instatement - Court will not compel either a master or a servant to continue a personal relationship which has become noxious to either of them - remedy for an employee if wrongfully dismissed from employment is damages.
TORT – trespass to the person (assault) - claim for damages – elements - the defendant violated the plaintiff’s body by threatening to harm (assault) and/or actually physically harming the plaintiff (battery) - the defendant acted intentionally - the defendant acted unlawfully, i.e., without lawful justification or excuse.
TORT – defamation – claim for damages – elements - the defendant made a defamatory imputation of the plaintiff - the defendant published it - the publication was unlawful (i.e it was not protected, justified or excused by law).
Cases Cited:
Papua New Guinea Cases
Theresa John Baker v Lae Printing Pty Ltd (1979) PNGLR 16
Robinson v National Airlines Commission [1983] PNGLR 476
Christopher Apa v Peter Wama (1992) PNGLR 395
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285
PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors (1996) N1493
Henzy Yakham v Merriam (1999) PNGLR 592
Robert Karava v Kevin Byrne and Tourism Promotion Authority (1999) N1808
Leo Nuia v The Independent State of Papua New Guinea (2000) N1986
Peter Aigilo v Sir Mekere Morauta & Ors (2001) N2103
PNGBC v Jeff Tole (2002) SC694
Gideon Barereba v Margaret Elias (2002) N2197
Legu Vagi v NCDC (2002) N2280
Anio v Baliki (2004) N2719
Kiee Toap v the State (2004) N2731
Ayleen Bure v Robert Kapo (2005) N2902
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946
David Lambu v Paul Paken Torato (2008) SC953
David Michael v Dennis Marus (2008) N3374
Isaac Lupari v Sir Michael Somare, MP (2010) SC1071
Barrick (Niugini) Ltd v Beverley Doiwa (2011) N4322
Overseas Cases
Bank of New Zealand v Simpson [1900] UKLawRpAC 6; (1900) AC 182
Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629
Leetham v Rank (1912) 57 SJ 111 CA
Tolley v Fry [1930] 1KB 467 CA
Vine v National Dock Labour Board (1956) All ER 1
Howe v Gosford Shire Council (1962) NSWR 58
Hill v CA & Co. Ltd (1971) All ER 1345
Treatise cited:
Andrew Kenyon, Defamation: Comparative Law and Practice
Counsel:
Peter Kolly, self-representative plaintiff
Jason Brooks, for the Defendants
JUDGMENT
27th April, 2020
1. DAVID, J: INTRODUCTION: This is a decision on a trial on liability. The matter before the Court is the substantive hearing of the claim by the plaintiff, Peter Kolly (Mr. Kolly) against the defendants, John Brutnall (Mr. Brutnall), Mary Popeliau (Ms. Popeliau), Donna Kabana (Ms. Kabana) and Bank South Pacific Limited (BSP) brought by way of an amended writ of summons and statement of claim filed on 4 September 2013.
CLAIM
2. Mr. Kolly claims that on 30 July 2013, he was unlawfully terminated by BSP after being suspended on 2 July 2013 for processing a customer’s cheque namely, a Bank of Papua New Guinea, Port Moresby cheque dated 28 June 2013 for K1 million bearing serial number 033119 and cheque number 38398 drawn by the Department of Lands & Physical Planning (Lands Department) from its Drawing Account made payable to John Koi (the Cheque) as cleared funds allegedly in breach of bank policies and procedures. Mr. Kolly also claims that on 2 July 2013 he was assaulted by Mr. Brutnall after a meeting with Mr. Brutnall, Ms. Popeliau and Ms. Kabana at Mr. Brutnall’s office when he was held on his neck to grab the access card that hung around his neck. In addition, he claims that at the material time, he was defamed when Mr. Brutnall, among others, used offensive and coarse language in full view of BSP’s staff and stating that he processed a fraudulent cheque and also calling him a criminal.
3. The main relief claimed by Mr. Kolly are:
DEFENCE
EVIDENCE
Plaintiff’s evidence
7. Mr. Kolly’s evidence consists of oral and documentary evidence.
8. Mr. Kolly gave sworn oral evidence and was subjected to cross-examination.
9. The documentary evidence consists of:
Defendants’ evidence
10. The defendants’ evidence consists of oral, documentary and physical evidence.
11. Mr. Brutnall and Copland Karau gave sworn oral evidence and were subjected to cross-examination.
12. The documentary evidence consists of:
13. The only physical evidence tendered through Mr. Brutnall and admitted into evidence was a lanyard and access card (Access Card) of a BSP employee (Exhibit 7).
SUMMARY OF THE PLAINTIFF’S EVIDENCE
Peter Kolly
14. He holds a degree in Theology which he attained from the Pacific Bible College, Mt. Hagen. He has undertaken business studies from a college in Pensacola, Florida in the United States of America.
15. His employment with BSP commenced on 26 January 2011 initially as a Teller and later as a Data Input Operator. Under cross-examination, the witness said he was a Grade 3 Input Operator. His gross salary ranged between K1,000.00 to K2,000.00 per fortnight. Annexure “A” to Exhibit “B” are copies of some pay information slips.
16. He later became a CBS Back Office Teller and IOD International Transaction Operator. At the time of his termination, he was not a Data Input Operator. His duty was to clear all warrants and cheques from the Bank of Papua New Guinea and other commercial banks.
17. He processed the Cheque the subject of his suspension and eventual termination on 1 July 2013. When it was put to the witness in cross-examination that Mr. Brutnall did not fabricate the allegation against him, he agreed.
18. Asked in cross-examination as to how the Cheque was brought to his attention, he said as a Back Office Teller, he found the Cheque in his tray. He denied seeing a security officer deliver the Cheque. When it was suggested to him in cross-examination that a security officer placed the cheque in the tray, he said he met security officer, Leevan who worked at Gordon’s outside the bank at lunch time when he mentioned the cheque to him and when he returned, he found the cheque in the tray. In Exhibit A, the witness said the cheque was brought in by the BSP Security Supervisor. Later during cross-examination, he said he called the security officer. When it was put to him in cross-examination in a series of questions that being a Data Input Operator, it was not his job to clear the Cheque worth K1 million which required clearance by an examiner or a supervisor, he said on the contrary, he followed protocol and it was his job as a clearance officer to clear the Cheque which was accompanied by supporting documentation.
19. Asked in cross-examination whether he met the customer (John Koi) outside the bank, he said no.
20. When he was referred to the last paragraph of a letter purportedly written by the witness addressed to the Manager, National Operations Centre, but for the attention of Ms. Popeliau (Mary Pops) dated 2 July 2013 where it was stated the cheque payment was genuine, but clearance was processed without following the proper channel and that he expressed regret and what he did would not be repeated, a copy which is annexed as annexure “F” to Exhibit 13, he said it was his letter.
21. When pressed in cross-examination that he did not mention in that letter anything about the alleged assault by Mr. Brutnall, he said it would become relevant if the matter went to Court and not when his matter was being addressed administratively.
22. When it was put to him in cross-examination that four days was the normal clearance period for cheque deposits before funds could be accessed unless special clearance was organised beforehand, he said it only applied to the front office and not the back office where he worked when processing salary cheques. When further pressed in cross-examination that it was not a salary cheque he processed, he said he did so as a clearance officer. He said there was no need to seek authorisation from his superiors as he had authority to clear funds and did nothing wrong.
23. Asked in cross-examination whether he received any gratuity from John Koi for processing the Cheque, he said he did not receive any gratuity from John Koi whether K2,000.00 or otherwise.
24. When questioned about the hierarchy of the Branch Operations, he said:
25. Pressed in cross-examination that his supervisors namely Ms. Popeliau and Ms. Kabana said what he did was wrong, he initially denied that they did, but later recanted and said they did.
26. On 2 July 2013 at around 4:00 pm, a meeting was conducted by Mr. Brutnall, Ms. Popeliau and Ms. Kabana at Mr. Brutnall’s
office at the BSP Head Office. He was called in by Mr. Brutnall to attend the meeting which was regarding the Cheque he processed
on Monday, 1 July 2013. It was alleged that he processed and cleared a fraudulent and scanned cheque and was asked a lot of questions
by Mr. Brutnall. He said Mr. Brutnall has issues with him so he said nothing in response. It was not a fraudulent cheque. True
copies of the Cheque are annexures “A” to Exhibit “A”, “A” to Exhibit “C” and “A”
to Exhibit “D”. The Cheque was cleared twice so it warranted suspension and not termination.
27. When it was put to him in cross-examination that when Mr. Brutnall suspended him and wanted the Access Card returned to him, he
tried to walk out and that was when Mr. Brutnall grabbed the access card, he said he did not accept the suspension and that was when
Mr. Brutnall pulled him by his neck and got injured as a result. A medical report he obtained confirms the injury he sustained.
28. A letter from one Simon Malu, Director, Customary Land Acquisition of the Customary Land Services, Lands Department addressed to the Manager, BSP, Boroko dated 28 June 2013 which accompanied the cheque advised that the cheque was genuine and was related to land compensation. True copies of the letter are annexures “B” to Exhibit “A”, “B” to Exhibit “C” and “B” to Exhibit “D”. True copies of a payment list sent out to all commercial banks within the National Capital District are annexures “C” to Exhibit “A”, “C” to Exhibit “C” and “C” to Exhibit “D”. The list shows that the payment made to John Koi was for the payment of land called Ponapin, Portion 2426C, Milinch of Minj in the Jiwaka Province and Fourmil of Ramu compulsorily acquired for, or upon which was, a Bible College.
29. Mr. Brutnall insulted him in his office when he said: what fucking officer was doing a fucking thing processing a fraudulent cheque? He then told him that he was suspending him for processing a fraudulent cheque. He went out of the office and it was when Mr. Brutnall grabbed him by his neck, pulled very hard on the access tag causing it to be lost with other items attached to the tag. A staff gave the access tag back to him later. Annexure “D” to Exhibit “A” is a true copy of an Assault & Insult report dated 3 July 2013.
30. He was having difficulty at night swallowing his saliva and food so he sought medical attention at the Port Moresby General Hospital on Wednesday, 3 July 2013. Annexure “F” is a true copy of a Medical Report dated 3 July 2013 provided by Dr. Sonny Kibob of the Port Moresby General Hospital. In the Medical Report, it is reported that Mr. Kolly complained of; painful right anterior aspect of the neck region; and difficulty with swallowing saliva. It is also reported that on clinical examination; it was found that; Mr Kolly was haemodynamically stable and in a lot of discomfort; there was a bruise and abrasion around the neck with tenderness; and Mr. Kolly had difficulty rotating, flexion and extension of the head. Mr. Kolly was given stat dose of crystapen penicillin, tetanus toxoid, analgesics and anti-inflammatory medication and was advised to take soft diet and fluid. It was concluded that the injuries sustained were subjective to the nature of the force involved in the assault, hence the extensive soft tissue injuries of the neck suffered.
31. On 3 July 2013, BSP Human Resources General Manager, Giau Duruba issued a suspension notice. Annexure G to Exhibit A is a true copy of the suspension notice. He was suspended from performing his duties with pay for two weeks effective from the date of the notice pending completion of investigations. The suspension notice stated that his suspension was in relation to his alleged conduct in processing a cheque of K1 million deposited into John Koi’s account as cleared funds on Monday, 1 July 2013 without express authorisation of his Manager or other senior managers in breach of bank policy. He was advised that he was at liberty to respond to the allegations within 14 days from the date of the notice.
32. He responded to the suspension notice in writing on 4 July 2013. He said he cleared the cheque upon sighting a confirmation letter accompanying the cheque and that he called Ms. Anshelle Buka of the Lands Department who confirmed that the cheque was genuine. There was no intention to defraud anyone he said. A true copy of the written response is annexure “H” to Exhibit “A”.
33. When it was put to the witness that in his letter of 4 July 2013 which he wrote a few days after his suspension, he did not mention anything about being assaulted by Mr. Brutnall, he said it was a criminal matter so he did not mention it while his matter was being addressed administratively.
34. On 3 July 2013, A/Deputy Secretary, Customary Land Services, Department of Lands wrote to the General Manager of BSP, Port Moresby advising that the cheque was genuinely drawn to John Koi for the payment of John Koi’s land known as Konapin, Portion 2426C Milinch Minj, Jiwaka Province and the bank should revoke his suspension. True copies of the letter are annexures “I” to Exhibit “A”, “D” to Exhibit “C” and “E” to Exhibit “D”.
35. On 10 July 2013, Mr. Brutnall called Lands Department to dishonour the cheque, but the Lands Department refused because there was nothing wrong with the cheque. When it was put to the witness that Mr. Burtnall could not have called the Department of Lands, he said Mr. Brutnall did. On 10 July 2013, the Lands Department advised the Clearing Section, Bank of Papua New Guinea to clear the cheque. True copies of a letter written by Acting Deputy Secretary, Customary Land Services, Lands Department, Adrian Abby to the Clearing Section, Bank of Papua New Guinea dated 10 July 2013 are annexures “J” to Exhibit “A” and “E” to Exhibit “C” and part of annexure “F” to Exhibit “D”.
36. On 11 July 2013, he laid a complaint regarding his assault and of being insulted by Mr. Brutnall with the Waigani Police Station. Annexure “E” is a true copy of a letter from a Constable J. Yaprtama of the Waigani Police Station dated 26 July 2013 addressed “TO WHOM IT MAY CONCERN” confirming that a complaint was laid by Mr. Kolly. In that letter it was advised that attempts to apprehend Mr. Brutnall failed so Mr. Kolly was advised to make a civil claim against Mr. Brutnall.
37. BSP dishonoured the cheque on its own accord without the drawer’s knowledge and authority. In doing so, they charged a dishonour fee of K20.00 and non-sufficient funds fee of K140.00.When the cheque was cleared, BSP collected a total of K2,512.97 in transaction fees. Annexures “I” and “J” to Exhibit “C” and annexures “I” to “J” to Exhibit “D” are true copies of John Koi’s bank statements showing the bank charges made. When it was put to the witness that it was Bank of Papua New Guinea who dishonoured the cheque and cleared it some weeks later upon its second presentation, he said the Bank of Papua New Guinea did not dishonour the cheque as they did not issue a dishonour voucher.
38. On 11 July 2013, Mr. Brutnall debited his savings account number 1002376208 by K200,079.82 and his other savings account number 1004747968 was debited by K99,927.63. He found it difficult to access his accounts for a few days as a result. True copies of the relevant bank statements for each account dated 11 July 2013 constitute annexures “K” to Exhibit “A” and “F” to Exhibit “D”. When it was put to him that BSP did not debit his account, the witness said his accounts were put on hold.
39. On 11 July 2013 at around 4:00 pm, BSP police and BSP security went to Waigani Police Station and assaulted him in front of PSC Tony Kapan and Sgt. Amos alleging that he had processed a fraudulent cheque. A true copy of a Medical Report provided by Dr. Sonny Kibob of the Port Moresby General Hospital dated 14 July 2013 is annexure “L” to Exhibit “A”. The medical report is about Mr. Kolly presenting himself at the Emergency Department, Port Moresby General Hospital on 12 July 2013 with life threatening hypertension. He was admitted, treated and discharged after a few days. When it was put to him in cross-examination that there was no allegation in his pleadings about being assaulted by BSP security personnel, he agreed and said it was Mr. Brutnall who assaulted him.
40. On 11 July 2013, he was taken to BSP, Gordon’s and interviewed about processing the alleged fraudulent cheque by BSP’s Police Reservist, Manu Kataka. He was not interviewed by Copland Karau.
41. On 19 July 2013, BSP Human Resources General Manager, Giau Duruba issued a notice of 14 days suspension extension from duties. Annexure “M” to Exhibit “A” is a true copy of the notice. The extension of his suspension from performing his duties was without pay effective from the date of the notice. He was advised that he was at liberty to respond to the allegations mentioned in the suspension notice of 3 July 2013 within 14 days from the date of the notice of suspension extension. In cross-examination, the witness said he received his pay during the entire period of his suspension.
42. On 30 July 2013, he was terminated from his employment. The reasons given in the Letter of Termination dated 30 July 2013 for his termination were; he breached proper banking procedures when processing the cheque for John Koi for K1 million as clear funds; and the cheque was not referred to his Manager for confirmation nor did he refer the cheque to the branch for due diligence checks. He was advised that his conduct constituted both serious and gross misconduct justifying immediate termination from his employment effective from the date of the Letter of Termination. In the Letter of Termination, he was also advised that he was at liberty to lodge a written appeal with Mr. Giau Duruba, General Manager Human Resources within 14 days of the date of the Letter of Termination. A true copy of the Letter of Termination is annexure “N” to Exhibit “A”.
43. On 2 August 2013, he lodged his appeal. A true copy of his letter of appeal addressed to the Appeal Committee is annexure “O” to Exhibit “A”.
44. His appeal was refused. A true copy of a letter from Mr. Giau Duruba, General Manager Human Resources addressed to Mr. Kolly dated 15 August 2013 is annexure “P” to Exhibit “A”. His appeal was rejected because of the serious nature of the allegation which was the subject of ongoing investigations and that he made a written admission as to his misconduct in his letter to the Manager of the National Operations dated 2 July 2013.
45. On 3 August 2013, he wrote to BSP Group CEO giving notice of his intention to file a law suit against BSP for assault, insult, illegal termination and personal damages. A true copy of his letter is annexure “Q” to Exhibit “A”.
46. On 14 August 2013, the Secretary of Lands Department, Romilly Kila wrote to him advising that the cheque was valid and signed lawfully by authorised officers. True copies of the letter are annexures “O” to Exhibit “A”, “G” to Exhibit “C” and “G” to Exhibit “D”.
47. As BSP paid his accommodation rentals of K350.00 per fortnight, he lost the benefit when he was terminated.
48. He lodged a complaint about his unlawful termination with the Department of Labour and Industrial Relations. On 27 August 2013, the Department of Labour and Industrial Relations wrote to BSP’s General Manager-Human Resources, Mr. Giau Duruba advising that his termination was unlawful and recommended that the bank should reconsider and reverse the decision. True copies of the letter are annexures “H” to Exhibit “C” and “H” to Exhibit “D”. BSP ignored the Department of Labour and Industrial Relations’ recommendation.
49. His request to be provided a reference or certificate of service after his termination by several BSP Senior Managers he approached including Mr. Brutnall and Ms. Popeliau, the Human Resources Manager and Employee Relations Manager was refused on the basis that he was terminated from his employment. Annexure “B” to Exhibit “B” is a true copy of an email from the second defendant to him on 18 November 2013. In cross-examination, when he was referred to paragraph 11 of Exhibit B where he made that statement, the witness said he only asked Ms. Popeliau. Without a reference or certificate of service from BSP as his former employer, he has not been able to support his numerous job applications. Annexures “C1” to “C6” to Exhibit “B” are copies of his job applications.
50. The news about his termination from BSP became public knowledge. He was taken aback by a female complainant in a Port Moresby District Court matter he was involved in while assisting the defendant in that matter who was illiterate when the complainant accused him in court on 22 October 2013 of being a criminal having been terminated from his employment by BSP for stealing K1 million from BSP. He commenced defamation proceedings against the female. Copies of a Summons to a Person Upon Complaint and District Court Official Receipt No.R00000296697 dated 18 November 2013 issued for the payment of K2.00 filing fee constitutes annexure “D” to Exhibit “B”.
51. He placed a report about Mr. Brutnall’s conduct with the Minister for Foreign Affairs.
Romilly Kila-Pat
52. At the material time, he was the Secretary of the Lands Department.
53. On 28 June 2013, from funds available, the Lands Department raised the Cheque. It was made payable to John Koi for the outright purchase of his land known as Konapin, Portion 2426C Milinch Minj, Jiwaka Province. The Cheque was valid and signed by authorised officers. Mr. Kolly was informed about the payment to John Koi and the validity of the cheque in a letter to him from his office dated 14 August 2013 in response to his letter dated 31 July 2013. A copy of the letter is annexure A to Exhibit E.
Adrian Abby
54. At the material time, he was the Deputy Secretary (Customary Land) of the Lands Department.
55. His evidence about the payment of K1 million to John Koi by the Cheque is similar to Mr. Kila-Pat’s evidence.
56. In addition, he states that on Wednesday, 10 July 2013, Mr. Brutnall, Operations Manager, BSP called him requesting that the cheque be dishonoured, but he advised against that as the cheque was genuine and valid and properly raised from funds available to the Lands Department.
57. On 10 July 2013, he wrote to the Clearing Section, Bank of Papua New Guinea advising them to clear the cheque as it was genuine
and the letter was copied to BSP General Manager and its top management. A copy of the letter is annexure A to Exhibit F. The
cheque was finally cleared after 28 days.
SUMMARY OF THE DEFENDANTS’ EVIDENCE
Mary Popeliau
58. She is the second defendant. She is employed by BSP as its Manager, National Operations Centre, Branch Operations.
59. On Tuesday, 2 July 2013, after being made aware that Mr. Kolly had accepted and deposited a K1 million cheque drawn on a Bank of Papua New Guinea account to a payee’s account, she reported the matter to Mr. Brutnall. Mr. Brutnall was the Head of Branch Operations. Mr. Brutnall requested to see Mr. Kolly about the matter.
60. At about 4.30 pm that day, Mr. Brutnall, Donna Kabana, Mr. Kolly and herself met at Mr. Brutnall’s office where Mr. Brutnall asked Mr. Kolly a series of questions about the cheque. Mr. Kolly did not answer the questions and remained silent throughout the meeting. Mr. Brutnall used coarse language a couple of times during the meeting to emphasise a question, but at no time did he use a swear word to insult Mr. Kolly.
61. Mr. Kolly was eventually informed that he was going to be suspended immediately while an investigation was going to be carried out in connection with the matter. Mr. Kolly then raised his voice, became confrontational and refused to accept Mr. Brutnall’s decision. He then walked out of the office.
62. Mr. Brutnall followed him out and asked him twice to surrender the identification/access card, but Mr. Kolly refused to hand it over. On the third attempt, Mr. Brutnall reached out and pulled the card which was hanging around Mr. Kolly’s neck. Mr. Kolly pulled back and the lanyard broke, giving the identification/access card to Mr. Brutnall.
63. At no stage did she see Mr. Brutnall assault Mr. Kolly either by using coarse language or holding him by his neck.
64. Mr. Kolly was terminated from his employment. The reasons for his termination from employment are contained in the letter of termination addressed to him dated 30 July 2013 (Letter of Termination). A true copy of the letter is annexure A to Exhibit 2.
65. According to the Letter of Termination, Mr. Kolly breached cheque processing procedures by receiving a Bank of Papua New Guinea cheque number 33119 for the sum of K1 million on 2 July 2013 for a John Koi at the National Operations Centre and processing it as cleared funds. He failed to refer the cheque to his Manager for confirmation nor was it referred to the branch for due diligence check. His conduct also involved gross insubordination, neglect of duty and or disobedience in carrying out a Manager’s and or a Supervisor’s reasonable instructions. His conduct constituted both a serious and gross misconduct justifying immediate termination of his employment under Section 133(3)(c) and (f) of the Consolidated Industrial Agreement between Bank South Pacific and Papua New Guinea Banks and Financial Institutions Workers Union (CIA). By that letter, he was informed that he was at liberty to appeal the decision to terminate his employment which he could do so in writing addressed to Mr. Giau Duruba, General Manager, Human Resources within 14 days of the date of the letter.
66. It was Mr. Kolly’s failure to observe BSP’s cheque processing procedures when clearing the cheque that led to his suspension and eventual termination. Mr. Kolly was paid two weeks’ salary (K921.29) in lieu of notice in accordance with Clause 20 of his Letter of Offer dated 25 January 2011 as well as K731.06 for his accrued annual leave.
Donna Kabana
67. She is the third defendant. She is employed by BSP. In July 2013, she was Team Leader-Input, NCD Branch Operations based at the NCD Branch Operations Centre at the Port Moresby Branch. She currently holds the same position, but has been relocated to the Waigani Branch. She reported to Mary Popeliau, the Manager of their Section. John Brutnall was the Head of Branch Operations.
68. Mr. Kolly worked under her as an Input Operator. A copy of his job profile is annexure A to Exhibit 5. His job essentially was to input into BSP’s computer, details of bank transactions.
69. Her evidence about the meeting on Tuesday, 2 July 2013 held at Mr. Brutnall’s office with Mr. Brutnall, Ms. Popeliau and Mr. Kolly in attendance and what transpired during and straight after the meeting including Mr. Kolly’s suspension by Mr. Brutnall and the alleged assault of Mr. Kolly by Mr. Brutnall is generally the same as that described by Mary Popeliau. She also refers to the Letter of Termination, a copy of which is annexure A to Exhibit 4.
70. Her evidence about the Cheque is more detailed. The Cheque was deposited into the account of John Koi operated at BSP on 1 July 2013.
71. The Cheque was brought to her on 1 July 2013 by a lady who worked in the NCD Branch Operations Section as an Examiner. An Examiner is a person who assists the Exchange Officer. The Exchange Officer is a person who checks cheques against deposits and arranges for the delivery of a drawer’s cheque to the bank on which it was drawn.
72. The Cheque was for a large amount and appeared to be irregular in that it was shown as funds cleared on the bank’s computer system and that the cheque could be returned to the Bank of Papua New Guinea. It was irregular because the processing should not have happened on the day of presentation of the cheque to the bank. Four days must elapse to allow for confirmation from the drawer bank before funds can be credited to a customer’s account from a cheque paid into that account. That requirement was not complied with.
73. She spoke to the Exchange Officer and to Ms. Popeliau. It was clear that the Cheque was processed by Mr. Kolly and because it was processed in such an irregular fashion and contrary to bank procedures, Ms. Popeliau took the matter up immediately with Mr. Brutnall, Head of Branch Operations.
74. The Operations Section has a procedure whereby deposit information is inputted to the computer by input operators. Then as Team Leader, she would then check the work of the input operator and then pass cheques and bank documentation on to an Examiner who would then pass them on to the Exchange Officer if the documentation were in order.
75. However, the Cheque did not come to her notice until after it had reached the desk of the examiner. That, Mr. Kolly by-passed in further breach of procedure.
76. When Mr. Kolly processed the Cheque on the same day and it was deposited into the customer’s account, there was no opportunity for the transaction to be checked under the “large transaction report” procedure. The large transaction report procedure is for cheques involving large amounts e.g. K100,000.00 and above to be brought to the notice of the person generating the large transaction report and then to the Examiner. The purpose of the large transaction report procedure is to double-check against fraud and to make sure that information on transactions is correctly inputted to the bank’s computer system.
77. Her summary of the breaches of procedure was this.
Copland Karau
78. He is employed by BSP as a Security Services Investigator with the Security Services Investigation Branch, BSP Commercial Centre, Gordons. At the material time, he was the Team Leader. He had been with BSP for about 9 years. He was previously employed by Guard Dog Security.
79. On 2 July 2013, he was directed to investigate a security officer namely, Leevan Maurice who was alleged to have assisted a customer to by-pass bank procedures. He took over from Mr. Maring Kataka, Police Liaison Officer who was initially assigned to carry out the investigation as he was not making any headway. At the time, Mr. Maurice was undergoing a probationary period as a trainee officer. Mr. Maurice was stationed at the bank’s Commercial Centre at Gordons. He was informed that the alleged breach of procedure involved assisting a customer to clear a cheque other than the usual way of presenting a cheque to a bank teller and await clearance. The breach by Mr. Maurice raised the possibility of a fraudulent transaction. He did not turn up for work on Monday, 1 July 2013 and Tuesday, 2 July 2013.
80. He proceeded to gather information concerning the complaint he received. He went to the bank’s Waigani Branch and was informed by a teller that Mr. Maurice had presented himself there with a person who attempted to deposit the Cheque.
81. On 3 July 2013, Mr. Maurice attended work and he interviewed him. Mr. Maurice provided a written statement. A copy of his written statement is annexure A to Exhibit 6. Mr. Maurice admitted receiving gratuity of K1,000.00 for his part. He said Mr. Kolly received gratuity of K5,000.00 for his part. Asked in cross-examination whether the customer gave Mr. Kolly K5,000.00 as gratuity, he said statements from the customer, John Koi and Mr. Maurice confirm that. John Koi’s statement was obtained by Mr. Kataka.
82. In Mr. Maurice’s statement, he said he was picked up by a family friend and neighbour Emmanuel Uki and his father from his home at Kaugere on 1 July 2013 at around 10:35 am to assist them cash the Cheque paid to his father for the sale of his land and he would be paid gratuity in return. They went to BSP Waigani Drive Branch where the cheque was presented to a teller who advised that he could not deal with the cheque without supporting documentation. It was when they were leaving the bank when, due to Emmanuel’s father’s insistence to have the cheque cashed, that he suggested that they could see someone he knew at Port Moresby Branch who could assist them. They drove down to Port Moresby Branch, met Mr. Kolly who cleared the cheque without supporting documentation and K70,000.00 was withdrawn by Emmanuel’s father. Under re-examination, he said Mr. Kolly produced supporting documents to Mr. Kataka after the transaction was performed and a couple of days later when he presented himself before Mr. Kataka.
83. Mr. Maurice received K1,000.00 as gratuity and Mr. Kolly was given K5,000.00 as gratuity as well.
84. He was also instructed to investigate Mr. Kolly. He was uncooperative. A written statement was also obtained from Mr. Kolly in which he admitted breaching bank policy.
85. Upon completion of his investigation, he compiled a report in the form of a memorandum addressed to Albert Essau, Manager Investigation dated 18 July 2013 on page 1 and dated 22 July on page 4. A copy of the memorandum is annexure B to Exhibit 6. The initial investigation was conducted by Police Liaison Officer, Mr. Kataka. Mr. Kolly did not follow bank procedure when he arranged clearance of the Cheque without any authority. It was not his job to deal with a cheque in the manner he did. He handled the Cheque in a suspicious and fraudulent manner as it did not go through the right channel and was in breach of bank procedure. At the time of the presentation of the Cheque to Mr. Kolly, there were no supporting documents to verify the legitimacy of the Cheque. The Cheque was delivered to Mr. Kolly in an envelope. Mr. Kolly’s job was only to input into BSP’s computer, details of bank transactions. It was found that both Mr. Maurice and Mr. Kolly breached Sections 13.3 (3)(b) and Section 13.3(3)(c) of the Consolidated Industrial Agreement 2007 between BSP and Banks and Financial Institutions Workers Union. It was recommended that both officers be terminated from their employment.
86. In re-examination, the witness said the cheque was initially dishonoured which meant a loss to the bank of about K71,000.00 inclusive of interest. However, when the cheque was cleared, the bank recouped its money.
Lanyard and Access Card
87. This is an example of a Lanyard and Access Card given to BSP’s employees. It has a clasp which comes apart easily.
John Brutnall
88. He is the first defendant. He is employed by BSP as its Manager Retail Bank, Branch Operations.
89. Mr. Kolly was offered employment with BSP as a Trainee Input Operator, a Grade 3 level position, with the National Operations Centre Business Unit effective from 26 January 2011 by a Letter of Offer dated 25 January 2011 (Letter of Offer). True copies of the Letter of Offer are annexures B to Exhibit 10 and “B” to Exhibit 13. He was to report to the Manager National Operations Centre, Ms. Popeliau. The Letter of Offer contained the terms and conditions of his employment and BSP’s Code of Ethics was attached.
90. Annexure C to Exhibit 10 is a true copy of the Consolidated Industrial Agreement 2007 between BSP and the Papua New Guinea Banks and Financial Institution Workers Union (the Consolidated Industrial Agreement 2007). The Consolidated Industrial Agreement 2007 remains in force and has not been replaced by any other agreement.
91. Grades in BSP’s hierarchy range from Data Input Operator at the lowest level through to Examining Officer, Team Leader and Manager at the highest Grade 11. In the hierarchy of the Branch Operations, the Team Leader-Input of Branch Operations, Ms Kabana was above Mr. Kolly. Above Ms. Kabana was the Manager of Branch Operations, Ms. Popeliau. She was the Head of the Branch Operations.
92. Data Input Operators were located on the second floor of BSP’s premises at Musgrave Street, Port Moresby. Data Input Operators are specifically isolated from BSP’s customers. Their job is not to directly serve customers. Customers or members of the public cannot access where Data Input Operators work without his permission and if permission is given, with security escort through several locked doors.
93. The procedure for Mr. Kolly, as a Data Input Operator, to inputting information concerning a cheque which has been deposited to a customer’s account is as follows:
94. BSP is a party to the Record of Arrangement Between Banks (RABB). Under the RABB, four working days must be allowed for clearance of cheques which are drawn on a bank (drawer bank) and then deposited in an account of another bank (collecting bank) where both banks are located in NCD. “Special Clearance” of cheques is now abolished. The period of four days is to allow sufficient time for the drawer bank to dishonour that cheque, if necessary. If the collecting bank allows its customer to draw on funds, earlier than four days and that cheque is dishonoured, then the collecting bank will have to bear the loss.
95. Alternatively, if the drawer bank fails to give notice of dishonour within that four day period and then looks to dishonour the cheque which the collecting bank’s customer has drawn upon, the collecting bank may refuse the “out of time” dishonour and the drawer bank would be responsible for any loss arising in those circumstances.
96. Data Input Operators are issued with bulletins which are relevant to their work from time to time. Annexures “B1” to “B6” to Exhibit 11 are copies of some of the bulletins.
97. As government cheques drawn on the Bank of Papua New Guinea or a government account are for large amounts, further care is required to double check the veracity of the cheques presented. These procedures were put in place in recent years. None of the procedures were followed by Mr. Kolly in clearing the cheque.
98. Mr. Kolly in annexure “H” to Exhibit “A” discloses how the Cheque was brought to his attention. This was outside the procedure of cheque-collection from the Branches. The immediate and unauthorised clearance of the cheque by Mr. Kolly breached the RABB requirement to allow four days to clear a cheque and also contravened BSP’s prohibition on Data Input Operators dealing directly with customers. These matters raised the possibility that the deposit was a fraudulent transaction. The sum of K70,000.00 was immediately withdrawn.
99. When BSP’s officers interviewed John Koi, he stated that Mr. Kolly asked him for K2,000.00 to clear the Cheque which he paid so that Mr. Koi could immediately withdraw K70,000.00 in cash. Annexure “A” to Exhibit 11 is a copy of Mr. Koi’s statement.
100. Mr. Kolly’s employment with BSP was suspended and eventually terminated because, in serious breach of BSP’s policies and procedures, on 1 July 2013 he credited the amount of the Cheque, being K1 million, to the account of the payee, John Koi number 1009563253 (the Account), as being immediately available funds without waiting for the cheque to clear. Mr. Kolly’s employment was not suspended or terminated because the cheque was “fraudulent” as he alleges in paragraphs 8 and 9 of the amended statement of claim.
101. At the relevant time, Mr. Kolly was employed by BSP as an Input Operator attached to BSP’s National Operations Centre. Part of his job was to input cheque clearing accounts (CCAs) that would come to the National Operations Centre from Branches within the National Capital District. Once all due diligence checks on the cheques had been performed and the usual clearance time of 4 days had lapsed, the proceeds of those cheques would be credited to the payee’s accounts as cleared funds, but only after the said checks.
102. Mr. Kolly was a junior officer. He was certainly not a teller. It was not part of his job to accept cheques from anyone except the Branches and even then, certainly not without a CCA having first been created.
103. It was highly unusual and indeed well outside of the scope of Mr. Kolly’s work for him, as an Input Operator, to have accepted a cheque from someone outside of BSP, processed it and posted it as cleared funds to a customer’s account without first referring the cheque to his Manager for confirmation and/or due diligence checks. Such actions expose the Bank to a loss if the paying bank refuses to pay on the cheque for whatever reason.
104. He is aware that on previous occasions, the Bank of Papua New Guinea has refused to accept cheques drawn on government accounts and payable to individuals and it is for that reason, among others, that BSP has in place processes and procedures to first confirm cheques before they are accepted for collection and deposit.
105. On Tuesday, 2 July 2013, he interviewed Mr. Kolly in the presence of his colleagues, Ms. Popeliau and Ms. Kabana at BSP’s Head Office, on the corner of Musgrave and Douglas Streets, Port Moresby. The interview was necessary because of a serious breach of BSP’s processes and procedures by Mr. Kolly which had the potential to place BSP in a loss situation to the value of K1 million.
106. During the interview, he asked Mr. Kolly questions such as the following:
107. Mr. Kolly remained silent during the interview; he refused to answer any questions. On two or three occasions he used coarse language solely for the purposes of emphasising the questions, but at no time did he insult Mr. Kolly by describing him in coarse terms.
108. It became clearer to him throughout the course of the interview that Mr. Kolly was in deliberate breach of BSP’s procedures and that the circumstances warranted an immediate suspension and investigation. Therefore, at the end of the interview, he informed Mr. Kolly that he was being suspended immediately and on full pay, so that investigations could take place. Mr. Kolly bluntly refused to accept the decision to suspend him and despite being repeatedly requested, refused to surrender to him BSP’s identification and security access card (Access Card).
109. He repeatedly asked Mr. Kolly to surrender the Access Card to him, but he refused and instead he stood up from his chair, stormed out of his office yelling that he could not suspend him and that he would not accept the suspension.
110. He followed Mr. Kolly out of his office and into the main work area; other officers were present. He stood in front of Mr. Kolly
and asked him twice for the Access Card, but he refused to surrender it so he reached out and took hold of the Access Card, at no
time touching him. As he took hold of the Access Card, Mr. Kolly pulled away from him or stepped back and the lanyard snapped, leaving
him with the Access Card. The lanyard was not made of strong material and so required no force on his part for it to break. He
did not cause any of the injuries which are mentioned in annexures “F” (Medical Report of 3 July 2013) and “L”
(medical Report of 14 July 2013) to Exhibit A.
111. Annexures A1 and A2 to Exhibit 12 are photocopies of the front and reverse sides of a lanyard and Access Card belonging to another
employee, but similar to the one worn by Mr. Kolly on 2 July 2013. Annexures B1 and B2 to Exhibit 12 are photocopies of the outlines
of the disassembled Access Card and lanyard showing the front and reverse sides of the Access Card. The lanyard is of durable nylon,
but there is a ring which is attached to the Access Card by a thin strand of cord. The cord sits within the press stud that loops
through the slot in the Card. The press stud comes apart. The plaintiff’s Access Card was destroyed after his employment
with BSP was terminated.
112. Mr. Kolly wrote to Ms. Popeliau on BSP’s notepaper dated 2 July 2013 and admitted he breached bank procedures in relation to the cheque. Annexure “F” to Exhibit 13 is a copy of the letter.
113. Annexure “G” to Exhibit 13 is a copy of suspension notice issued by BSP’s General Manger – Human Resources dated 3 July 2013.
114. As he was concerned that the transaction performed by Mr. Kolly could be fraudulent or the cheque could be dishonoured by Bank of Papua New Guinea for reasons other than “fraudulently withdrawn”, he had John Koi’s account suspended and a notice posted to the account that should he attempt to withdraw further funds, he should be directed to see him. As a result of these precautions, on 30 July 2013, John Koi was directed to see him at his office where he interviewed him and asked for an explanation. John Koi provided a written statement, a copy of which is annexure A2 to Exhibit 13.
115. Mr. Kolly’s bank accounts were suspended for the same reason and in case some proceeds of the Cheque might be recoverable from the accounts. The stop was later removed after Bank of Papua New Guinea honoured the cheque on second presentation.
116. Mr. Kolly also accuses him of sexual harassment and swearing at him; accusations which he denies. He may have used swear words on occasions, but denies using them against Mr. Kolly. The incident may have embarrassed and shamed Mr. Kolly in front of other officers, but it was on the basis that he stormed out of the office in the presence of other people in circumstances where he had committed a serious breach of BSP’s procedures and the matter was being investigated by him. It was necessary for him to follow Mr. Kolly to ask him to hand over the Access Card as it was BSP’s property and they had to restrict his access into the building whilst he was suspended and the matter was being investigated. Annexure “C” to Exhibit 11 is a copy of the Staff Exit List which sets out under Item No.1 that an employee has to hand in his Staff Identification/Access Card. After Mr. Kolly’s termination through the Letter of Termination, the Access Card was not returned to him.
117. He denies that he prejudiced Mr. Kolly in his work, his personal standing, his integrity and his morale. He must be held responsible for his own conduct.
118. The Cheque was dishonoured by Bank of Papua New Guinea on 4 July 2013 and this was communicated to BSP on 4 July 2013 by virtue of the dishonoured cheque being (physically) handed back to BSP in the inter-bank exchange process. This occurs when all bank representatives meet to physically exchange cheques and dishonours at Bank of Papua New Guinea. Asked in cross-examination whether Bank of Papua New Guinea issued a dishonour voucher, the witness said he was unsure, but the Cheque was dishonoured.
119. BSP has no control or influence over Bank of Papua New Guinea’s decision to honour or dishonour cheques that are drawn on their own customer’s accounts. It follows that in this matter involving a cheque drawn on the account of the Lands Department at the Bank of Papua New Guinea, BSP had no influence in relation to Bank of Papua New Guinea’s decision to dishonour the cheque on 4 July 2013. Any suggestion by the plaintiff that BSP somehow influenced Bank of Papua New Guinea to dishonour the cheque (or would seek to influence Bank of Papua New Guinea) was completely foundation.
120. The Cheque was subsequently re-presented (deposited) by John Koi into the Account on 30 July 2013 and on that occasion as an uncleared cheque. At that time, the four day clearance process applied whereby Mr. Koi was not able to access any of the cheque funds until such time as the four day clearance period expired. Annexure “A” to Exhibit 14 is a true copy of an extract from the Account which shows the initial deposit of the cheque on 1 July 2013, the dishonour entry on 4 July 2013 and the re-presentation of the cheque on 30 July 2013. Annexure “B” is a true copy of an extract from the BSP general ledger account entitled “BPNG Clearings Account” account No.20, which shows that on 30 July 2013, the amount of K1 million (being the cheque paid to Mr. Koi by the Lands Department) was processed in the normal course of the bank exchange of cheques, whereby BSP sought value from Bank of Papua New Guinea for the cheques that BSP had negotiated on behalf of its customers. In cross-examination, when referred to bank statements at annexures “I” and “J” to Exhibit D and asked to explain why after the cheque was re-presented on 30 July 2013, a withdrawal of K3,000.00 was made less than 4 days after the cheque was deposited, the witness said the funds which were to have been cleared by 4 August 2013 had already been cleared.
121. The fact that the cheque was subsequently honoured after the four day clearance period as cleared funds is not relevant to Mr. Kolly’s claim as the issue of great concern to BSP was the manner in which the plaintiff failed to comply with BSP’s procedures on 1 July 2013.
122. The reasons for Mr. Kolly’s termination of employment are detailed in the Letter of Termination. A true copy of the Letter of Termination is annexure A to Exhibit 10.
123. When he was terminated, he was paid two weeks’ salary in lieu of notice (K921.29) in accordance with Clause 20 of the Letter of Offer. He was also paid K731.06 for his accrued annual leave.
124. He denies absolutely each and every allegation of unlawful assault, defamation and other abuse contained in paragraphs 11 to 15 inclusive of the amended statement of claim.
LEGAL ISSUES
125. The main legal issues that arise for my decision are:
DISMISSAL FROM EMPLOYMENT AND REINSTATEMENT
Plaintiff’s submissions
126. I have considered Mr. Kolly’s lengthy written submissions and oral submissions.
127. Mr. Kolly essentially contended that he was unlawfully terminated as he complied with BSP’s standing procedures when clearing the cheque in the course of carrying out his duties on 1 July 2013. There was nothing fraudulent about the cheque and he has been made to pay for clearing the cheque.
Defendants’ submissions
128. I have also considered the lengthy written submissions and oral submissions of Mr. Brooks of counsel for the defendants.
129. Mr. Brooks essentially argued that there was clear and uncontroverted evidence that Mr. Kolly breached well-recognised procedures in clearing the cheque as cleared funds immediately. He said BSP would have been entitled to dismiss Mr. Kolly immediately as a result of his gross insubordination, refusing to answer questions put to him by Mr. Brutnall, refusing to accept Mr. Brutnall’s decision to suspend him pending the internal investigation, and for clear breaches of procedure in processing the cheque as clear funds which had exposed BSP to significant liability. Mr. Brooks submitted that Mr. Kolly was not only dismissed for good reason, but he was paid all his entitlements under his contract of employment and suffered no loss in any event.
Reasons for decision
130. It is settled law that generally, where parties have reduced their agreement into writing, the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict the language of the written document: Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285, Anio v Baliki (2004) N2719. An exception to the general rule however is that any ambiguity in a written document or record may be resolved with the aid of extrinsic evidence, i.e., it is always available, not to contradict or vary the contract, but to apply it to facts, which the parties had in their minds and were negotiating about: Bank of New Zealand v Simpson [1900] UKLawRpAC 6; (1900) AC 182; Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629. Usually, the plain, ordinary or natural meaning of a word used by the parties to express a term will prevail unless the context warrants otherwise.
131. It is also settled law in this jurisdiction that if an employee is not terminated in accordance with the agreement of the parties, that amounts to an unlawful termination: Leo Nuia v The Independent State of Papua New Guinea (2000) N1986, Peter Aigilo v Sir Mekere Morauta & Ors (2001) N2103 and Legu Vagi v NCDC (2002) N2280.
132. In Papua New Guinea, the common law principle of the right to hire and fire an employee at will for any reason without giving a right to be heard and without providing any reason applies. This principle was affirmed by the Supreme Court in Jimmy Malai v PNG Teachers Association [1992] PNGLR 568 and reaffirmed by the Supreme Court in New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946. These principles can be displaced by contractual arrangements which provide otherwise: Ayleen Bure v Robert Kapo (2005) N2902.
133. It is settled law that the Court will not compel either a master or a servant to continue a personal relationship which has become noxious to either of them and the remedy for an employee who has been wrongfully dismissed from his employment is damages: Robinson v National Airlines Commission [1983] PNGLR 476;Christopher Apa v Peter Wama (1992) PNGLR 395;Robert Karava v Kevin Byrne and Tourism Promotion Authority (1999) N1808; Gideon Barereba v Margaret Elias (2002) N2197; Isaac Lupari v Sir Michael Somare, MP (2010) SC1071; Barrick (Niugini) Ltd v Beverley Doiwa (2011) N4322; Vine v National Dock Labour Board (1956) All ER 1; Howe v Gosford Shire Council (1962) NSWR 58; Hill v CA & Co. Ltd (1971) All ER 1345.
134. Disciplinary action taken against Mr. Kolly was for breach of BSP’s policies and procedures in processing the Cheque without express authorisation of his Manager or other senior Managers. The Letter of Termination states that such conduct constituted both serious and gross misconduct justifying termination under Section 13.3(3)(c) and (f) of the Consolidated Industrial Agreement 2007.
135. Section 13.3 deals with discipline. Section13.3(c) and (f) state:
The following are types of behaviour that constitutes gross misconduct warranting summary (instant) dismissal without notice.....
(c) Using or manipulating BSP’s systems and/or procedures for the employee’s or another party’s advantage; ..
(f) Gross insubordination, neglect of duty, or disobedience in carrying out Manager or Supervisor’s reasonable instruction; ..
136. Clause 20 of the Letter of Offer deals with resignation and termination and it states:
Your employment shall be terminated by any of the following events:
20.1 Retirement age of 60years.
20.2 Divulge details of customers’ accounts and any other confidential information relating to the business of the company to unauthorised persons without prior approval of the management or;
20.3 Accepting bribe, commission or gratuity in cash or gifts from customers in the normal course of the company or;
20.4 Disgraceful or improper conduct during official hours or after hours that portrays bad image of the company or;
20.5 Drinking intoxicating liquor or taking drugs in excess during official hours and/or hours before turning up for official duties or;
20.6 Involve in fraudulent activities against the company and/or its customers.
For resignation/termination either party shall give the following notice periods or for the employee forgo and employer can pay in
lieu of notice of period.
Service of less than 1 year – 1 week’s notice
Service of 1 year and less than 5 years – 2 week’s notice
Service of 5 years or more – 4 week’s notice.
137. Did BSP unlawfully dismiss Mr. Kolly from his employment?
138. For the purpose of answering that question, I make the following findings of fact based on all the evidence before me and which I am satisfied have been proven on the balance of probabilities:
139. I am satisfied that the dismissal of Mr. Kolly from his employment with BSP justified as it was in accordance with Section 13.3(c) and (f) of the Consolidated Industrial Agreement 2007 and Clause 20 of the Letter of Offer and therefore lawful. His behaviour was well outside the scope of his role within BSP and amounted to gross misconduct warranting summary dismissal without notice for reasons stated in the Suspension Notice, Suspension Extension Notice, Letter of Termination and the decision of BSP’s Appeal Committee. Clearly, his conduct also amounted to a breach of the Code of Ethics particularly as to his personal conduct, honesty, dealings with customers and prevention of fraud.
140. Mr. Kolly has failed to prove his claim for unlawful termination of his employment on the balance of probabilities.
141. His claim for an order for reinstatement to his position with BSP before his termination has no merit and is therefore refused.
ASSAULT
Plaintiff’s submissions
142. Mr. Kolly submitted that there is sufficient evidence before the Court to prove his claim for assault. He said Mr. Brutnall admitted to pulling his neck when he could have called security guards to deal with him.
Defendants’ submissions
143. Mr. Brooks contended that Mr. Brutnall did not assault Mr. Kolly as he asserts. It was argued that Mr. Brutnall merely sought to recover the BSP Access Card from Mr. Kolly when Mr. Kolly was being grossly insubordinate, refusing to accept his suspension and refusing to hand over his Access Card. Mr. Brooks contended that it was Mr. Brutnall’s evidence that as he reached out to take hold of the Access Card, Mr. Kolly moved away and the Access Card/lanyard came off Mr. Kolly’s neck. Mr. Brooks said Mr. Brutnall’s evidence was corroborated by the evidence from Ms. Popeliau and Ms. Kabana.
Reasons for decision
144. In David Michael v Dennis Marus (2008) N3374, Cannings, J observed that the tort of trespass to the person has three elements which the plaintiff has to prove in order to establish a cause of action and for the defendant to be liable and these are:
2. the defendant acted intentionally; and
I accept them as the correct elements of the tort of trespass to the person and apply them here in relation to Mr. Kolly’s claim for assault.
145. Exhibit 7 is an example of a Lanyard and Access Card given to BSP’s employees including that worn by Mr. Kolly on 2 July 2013. It has a clasp which comes apart easily.
146. I dismiss Mr. Kolly’s claim and instead accept the defendants’ submissions to dismiss the claim for the following reasons:
147. The upshot of this is that Mr. Kolly’s claim that he was assaulted by Mr. Brutnall on 2 July 2013 is a clear fabrication in the face of corroborative and contemporaneous evidence from Ms. Popeliau and Ms. Kabana and reasonable inferences supporting that conclusion drawn from Mr. Kolly’s own evidence.
148. Mr. Kolly has failed to establish all elements of the tort of trespass to the person namely, assault, on the balance of probabilities as a result.
DEFAMATION
Plaintiff’s submission
149. Mr. Kolly does not address the issue specifically or in any detail in his written and oral submissions, but states that he was falsely accused of dealing with a fraudulent cheque.
Defendants’ submissions
150. Mr. Brooks contended that the claim should be dismissed as; the amended statement of claim was poorly drafted and does not properly plead a cause of action for defamation as required by law; and there was no direct and clear evidence to support the claim.
151. He said that the claim for defamation was not properly pleaded for these reasons:
152. Mr. Brooks referred the Court to Sections 1, 2 and 3 of the Defamation Act to understand the meanings of the terms “defamatory matter” and “defamatory imputation” or generally the tort of defamation.
153. In relation to the argument that Mr. Kolly failed to plead all alleged defamatory words as required by Section 3, Mr. Brooks referred the Court to the treatise, Andrew Kenyon, Defamation: Comparative Law and Practice at p.51 where it was stated:
Published words must be set out verbatim for a claim in libel. It is not sufficient to plead the words’ substance and effect – they must be set out with reasonable certainty. ..... For claims in slander, the words need to be set out as used in speech (see for example Collins v Jones [1955] 1 QB 564), although the claimant or plaintiff can succeed if words substantially similar are proved to have been spoken.
Reasons for decision
154. Defamation is a tort at common law. The relevant principles governing the law on defamation have been adopted in our jurisdiction by virtue of Section 9 and Schedule 2.2 of the Constitution and have essentially been codified in the Defamation Act. A statement to that effect which I respectfully agree with was made by Sheehan, J in PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors (1996) N1493 and is restated as follows:
“the Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation. It restates the essential common law principles in statutory form. It is the substantive law of defamation, but without provisions for such matters as procedure, damages or even the absolute protection of Parliamentarians for speeches in the House, the Act is not an exhaustive code in the way that Australian statutes on which it is modelled are said to be codes. Accordingly, where the act is not specific then common law not inconsistent with the Act is relevant. English decisions pursuant to schedule 2.2 of the Second Schedule of the Constitution are therefore authoritative, while Australian decisions and those of other jurisdictions maybe persuasive.”
155. There are special pleading requirements in proceedings for defamation under the National Court Rules which the parties must comply with: see Order 8 Division 7 (Rules 83-91).
156. The elements of a cause of action in defamation are set out in Sections 5 and 24 of the Defamation Act: see also Theresa John Baker v Lae Printing Pty Ltd (1979) PNGLR 16. In David Lambu v Paul Paken Torato (2008) SC953, the Supreme Court, per Cannings J at paragraph 117, set out the elements of a cause of action of defamation as follows:
“As for defamation, the elements required to sustain a cause of action are that:
157. At paragraph 118 of that judgment, Cannings, J also said:
“The first element is a question of law by virtue of Section 2(3) of the Defamation Act. Invariably, though it is not expressly stated in the Act, so is the third...”
158. Section 24 of the Defamation Act provides that the unlawful publication of defamatory matter is an actionable wrong.
159. Section 1 of the Defamation Act states that a “defamatory matter” means the matter of an imputation referred to in Section 2.
160. Section 2 of the Defamation Act defines what a defamatory matter is. It states:
(1) An imputation concerning a person, or a member of his family, whether living or dead, by which—
(a) the reputation of that person is likely to be injured; or
(b) he is likely to be injured in his profession or trade; or
(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,
is a defamatory imputation.
(2) An imputation may be expressed directly or by insinuation or irony.
(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.
161. Section 3 of the Defamation Act defines defamation. It states:
A person who—
(a) by spoken words or audible sounds; or
(b) by words intended to be read by sight or touch; or
(c) by signs, signals, gestures or visible representations; or
(d) by use of electronic systems or devices,
publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.
162. Section 4 of the Defamation Act provides how a defamatory matter is published. It states:
4. Publication.
For the purposes of this Act, publication is—
(a) in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and
(b) in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise
come to the knowledge of, a person other than the person defamed; and
(c) in the case of other defamatory matter—
(i) exhibiting it in public; or
(ii) causing it to be read or seen; or
(iii) showing or delivering it; or
(iv) causing it to be shown or delivered; and
(d) any of (a), (b) or (c) generated through the use of an electronic system or device,
with a view to its being read or seen by a person other than the person defamed.
163. Section 5 of the Defamation Act provides that the publication of a defamatory matter is unlawful unless the publication is protected, justified or excused by law.
164. A publication is defamatory if it lowers the claimant in the estimation of the ordinary right-thinking members of the community generally: Henzy Yakham v Merriam (1999) PNGLR 592 at 607.
165. In Tolley v Fry [1930] 1KB 467 CA at 479 Greer LJ said:
“Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation.”
166. In Leetham v Rank (1912) 57 SJ 111 CA at 112 Farwell LJ said:
“It is not enough to prove that the words rendered the plaintiff obnoxious to a limited class: it should be proved that the words are such as would produce a bad impression on the minds of average reasonable man.”
167. The law protects the reputation which a person possesses in the general community and not the esteem with which he views himself: Henzy Yakham v Merriam (1999) PNGLR 592 at 607-608.
168. At paragraph 14 of the amended statement of claim, Mr. Kolly pleads the particulars of alleged “defamation of character and integrity” as follows:
(a) First Defendant used offensive/coarse language in full view of BSP staff such as, “what a fucking officer doing fucking things like processing the fraudulent cheque?”
(b) First Defendant labelled the plaintiff as a “Criminal”.
(c) The First Defendant also said to the Plaintiff, “I am suspending you right now. Fucking get out of here”.
(d) The First Defendant falsely accused the employee of the Department of Lands & Physical Planning (DLPP) for collaborating and colluding with the Plaintiff and printing an or scanning false cheques.
(e) There was workplace discrimination as emails were circulated to Managers within BSP not to re-engage/re-employ the Plaintiff. This is a clear breach of the Constitution of Papua New Guinea, Division 3, and freedom of Employment.
(f) On 3 July 2013 at around 12:00 noon at down town (Port Moresby) Police Station in front of the Station Commander Mr. Kurui, the First Defendant repeated allegation against the Plaintiff that the clear cheque was a fraud and scanned (sic).
169. At paragraph 15 of the amended statement of claim, Mr. Kolly avers that the words and the statements in their natural ordinary meaning and or inferential meaning has defamed the plaintiff in his work, personal integrity and character.
170. As I have alluded to earlier, the defendants aver in the respective defences that none of them defamed Mr. Kolly as alleged or at all.
171. As I have intimated earlier, Mr. Kolly in his submissions did not press this claim. Hence, I consider it abandoned and therefore will dismiss it.
172. However, in case I am wrong in arriving at that conclusion (which I think I am not), I will make these brief observations. I concur with Mr. Brooks’ contention that the amended statement of claim was not properly pleaded. It does not demonstrate that Mr. Kolly has a cause of action in defamation against any of the defendants as it does not clearly set out the elements of the claim and the facts that support each element of the claim: Kiee Toap v the State (2004) N2731. I also concur with Mr. Brooks that there was no direct and clear evidence to support the claim.
173. In addition, in considering the volume of evidence produced by Mr. Kolly both by affidavit and through his sworn oral testimony, I have come to doubt the truthfulness of his evidence. His evidence is full of inconsistencies and aspects of the evidence have been found to be incredible. His demeanour in the witness box under cross-examination was poor, he was fidgety and appeared confused at times during his testimony. I also adopt other observations I have already made in relation to the first three issues and apply them here as well. Mr. Kolly is not a reliable witness.
174. The pleadings in the amended statement of claim appear to point to Mr. Brutnall as the main perpetrator behind the defamation allegation. Mr. Brutnall’s evidence that; on two or three occasions he used coarse language solely for the purposes of emphasising the questions he was putting to Mr. Kolly at the meeting on 2 July 2013 at his office as Mr. Kolly remained silent and refused to answer his questions; and that at no time did he insult Mr. Kolly by describing him in coarse terms was corroborated by Ms. Popeliau. Mr. Brutnall’s evidence was not challenged in any way under cross-examination so it stands unchallenged. This claim is dismissed for these brief reasons as well.
COSTS
175. Costs shall follow the event, i.e., the plaintiff shall pay the defendants’ costs of the entire proceedings on a party
and party basis, if not agreed, to be taxed.
ORDER
176. The formal orders of the Court are:
Judgment and orders accordingly
Ashurst: Lawyers for the Defendants
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