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Pama v Chris Gens (trading as Kanagio Security Services) [2020] PGNC 318; N8516 (25 September 2020)

N8516

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 682 OF 2018

BETWEEN:
PETER PAMA
Plaintiff

AND:
CHRIS GENS trading as KANAGIO SECURITY SERVICES
Defendant

Madang: Narokobi J
2020: 21^st August, 25^th September

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – adequate compensation for breach of human rights in circumstances of unlawful termination.

The Plaintiff, a former employee of the Defendant successfully established during trial on liability that his rights under s 41(1)(b) and (c) of the Constitution was breached and is now before the court to claim compensation for the breach.

Held:

(1) In the circumstances, the Plaintiff is entitled to compensation for breach of his rights under section 41(1)(b) and (c) of the Constitution in the sum of K2,000 and was entitled to general damages for K2,000;

(2) The total judgment sum awarded inclusive of interest was K4,720.

Cases Cited:

The following cases are cited in the judgment:
Pama v Gens (trading as Kanagio Security Services) (2020) N8358
Petrus v Telikom PNG Ltd (2008) N3373
Simon v Koisen (2018) N7075

Counsel:

Mr. B. Wak, for the Plaintiff
Mr. J. Lai, for the Defendant

JUDGMENT

25^th September, 2020

1. NAROKOBI, J: On 11 June 2020, the court determined the issue of liability after trial and dismissed the claim in relation to damages for unlawful termination on the basis that it was not pleaded but upheld the plaintiff’s claim for breach of section 41 of the Constitution.
   
2. The plaintiff was a security guard in the employ of the defendant between 6 May 2017 and he ceased employment on 25 April 2018. Although I found that he was constructively terminated, I did not award him anything for it, as I was not satisfied that his claim was pleaded with sufficient particularity.
   
3. In relation to his claim for breach of section 41 of the Constitution, I upheld his contention and found that the defendant had breached his rights under s 41 of the Constitution, for the following reasons (see Pama v Gens (trading as Kanagio Security Services) (2020) N8358):
   
   • The Plaintiff was constructively terminated, and Defendant had given him the impression that he would be re-employed, a fact the Defendant knew or ought to have known, not to be true;
   • The Plaintiff is a 63-year-old illiterate man, living in another province, would value the importance of employment, and the Defendant should have informed the Plaintiff immediately that he was not going to be employed again;
   • Based on that undertaking, the Plaintiff kept on checking the Defendant;
   • The Defendant swore at the Plaintiff; and
   • The Defendant was non-responsive to the two letters from the Labour Department dated 24 May 2017 and 2 July 2018, to provide statements and records to substantiate payment of entitlements. The Labour Department is a legitimate state agency, charged with the responsibility of ensuring worker’s rights are protected and warranted a response from the Defendant.
     
4. After having read the plaintiff and the defendant’s evidence tendered by way of affidavits during trial on assessment of damages, and hearing their submissions, I confirm those to be the instances in which the defendant’s rights under s 41(1)(b) and (c) of the Constitution were breached.
   
5. In considering the question of compensation for breach of constitutional rights, I have considered various cases counsel’s have submitted and settle for the case of Simon v Koisen (2018) N7075 as comparable on the question of assessment of compensation in an unlawful termination scenario, which is considered as falling within the ambit of breach of section 41(1) of the Constitution. In that case the plaintiff was employed for a period of four (4) years. Here the plaintiff was employed for a period of eight (8) months. I therefore award a fixed sum of K2,000.00 for the breach of the plaintiff’s rights under section 41(1) of the Constitution as appropriate. I do so in relation to the special circumstances of the case constituting the breach of the plaintiff’s rights.
   
6. In relation to general damages, I note that in Petrus v Telikom PNG Ltd (2008) N3373, the court awarded K5,000 for inconvenience where the employees had been employed for some four (4) years in a case for breach of their constitutional rights under Section 41 of the Constitution. I have considered the length of service of the plaintiff, that is eight (8) months and the court’s finding that there was an element of fault on the part of the plaintiff and therefore award general damages for K2,000 for the inconvenience suffered by the plaintiff as a result of the breach of his rights under section 41(1) of the Constitution.
   
7. Interest is discretionary, and I see no reason why I should award interest, and I award interest at the rate of 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 from the time the cause of action arose to the date of judgment, being one (1) year and six (6) months, that is K4,000 x 0.08 x 1.5 = K720.
   
8. I also award costs at a fixed sum of K1,000.00 bearing in mind that each party was ordered to bear their own costs on the question of liability and that the plaintiff has made out its case for breach of section 41(1) of the Constitution. We are here for this purpose and so the plaintiff is entitled to his costs.
   
9. In consideration of the law and the circumstances of this case, I make the following orders:
   
   1. The defendant pays the plaintiff a total judgement sum of K4,720.00 inclusive of compensation for breach ofsection 41(1) of the Constitution, general damages and interests;
   2. The defendant pays the plaintiff costs fixed at K1,000;
   3. File is closed; and
   4. Time is abridged.
      

Judgement and Orders accordingly

________________________________________________________________

Bradley Wak Lawyers: Lawyers for the Plaintiff

Thomas More Ilaisa Lawyers and Attorneys: Lawyers for the Defendant