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Mamugoba v New Britain Palm Oil Ltd [2024] PGNC 419; N11082 (4 November 2024)

N11082


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 926 OF 2019


BETWEEN
TITUS MAMUGOBA
- Plaintiff -

AND
NEW BRITAIN PALM OIL LIMITED
- Defendant–


Kimbe: Collier J
2024: 4th November


EMPLOYMENT LAW – claim by employee of breach of contract in respect of termination of employment contract – Executive Service Contract – allegation by employer of theft of fuel and improper payments by employee – relevant clause pursuant to which employment terminated – employee paid salary and entitlements in lieu of notice – internal appeal process set out in General Policies and Regulations Handbook of the defendant – ss 33 and 34 Employment Act 1978 – whether General Policies and Regulations Handbook part of the contract – whole agreement clause in Executive Service Contract – whether implied right of employee to be heard in terms of Kala v New Britain Palm Oil Limited [2007] N3125


PRACTICE AND PROCEDURE – Notice of Motion to further amend Statement of Claim – Notice of Motion filed one week before trial date – Order 8 rule 50 (1) and (2) National Court Rules – judicial discretion – role of pleadings – previous litigation where same issues raised but summarily dismissed – case management principles – amendment of pleadings would result in vacation of trial dates – no explanation for late notice of motion to amend pleadings – same lawyer – prejudice to the Defendant if trial dates vacated – costs not adequate remedy – age of matter – whether “real question” in dispute referable to decision of National Cout in Kala v New Britain Palm Oil Limited [2007] N3125 – Notice of Motion dismissed


Facts


The Plaintiff was employed as an assistant manager by the Defendant. Allegations of misconduct referable to theft of fuel and improper payments were made against the employee. The Defendant summarily terminated the employment of the Plaintiff. After 20 months the Defendant paid the Plaintiff the amount of K9,388.64. The Plaintiff argued that he was terminated pursuant to cl 8.1(b) of the Executive Service Contract rather than summarily, that the Defendant’s General Policies and Regulations Handbook was part of the contract between the parties, that he was entitled to a hearing prior to termination of his contract in light of principles articulated in Kala v New Britain Palm Oil Limited [2007] N3125, and that the Defendant breached the employment contract in respect of the manner of the termination of employment.


Held:


Notice of Motion to further amend Statement of Claim dismissed. Plaintiff offered no meritorious explanation as to why amendment sought only one week before trial when proceedings were filed in 2020. Amended Writ of Summons and Amended Statement of Claim dismissed with costs. General Policies and Regulations Handbook of the defendant not part of the employment contract. Defendant not in breach of the employment contract with the Plaintiff. No contractual right of Plaintiff to hearing as stated in Kala v New Britain Palm Oil Limited [2007] N3125. Amended Writ of Summons and Amended Statement of Claim dismissed with costs.


Cases Cited:
Papua New Guinean Cases


Ronnie Choi Constructions Ltd v Tela [2024] SC2617
Papua New Guinea v Tamate [2021] SC2132
Tjandranegara v BSP Financial Group Ltd [2021] N9353
Telikom (PNG) Ltd v Wamara (2019) SC1762
Geno v O’Neill (2017) SC1617
Common Constructions Ltd v TSC Contractors (PNG) Ltd [2017] N6681
Malewo v Faulkner [2009] SC960
New Britain Oil Palm Ltd v Sukuramu [2008] SC946
Kala v New Britain Palm Oil Limited [2007] N3125
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 2) [1975] PNGLR 195


Overseas Cases


Hong Kong Fir Shipping Co, Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7; [1962] 2 QB 26


Legislation:


Companies Act 1997

Judicial Proceedings (Interest on Debts & Damages) Act Chapter No. 52


Counsel:


Mr P. Mokae, for the Plaintiff
Mr E. Isaac, for the Defendant


REASONS FOR JUDGMENT


4th November 2024


  1. COLLIER J: Before the Court is an Amended Writ of Summons and Amended Statement of Claim filed on 24 July 2020 in the National Court of Justice. By that Amended Writ of Summons and Amended Statement of Claim the Plaintiff claims damages for breach of contract in respect of the termination of his employment by the Defendant, particularly in respect of the payout he received when his employment ended.
  2. When the matter came before me Counsel for the plaintiff, Mr Mokae, directed my attention to a Notice of Motion filed by the Plaintiff on 28 October 2024. In that Notice of Motion the Plaintiff sought the following relief:
    1. Pursuant to Order 8 Rule 50 (1) & (2) of the National Court Rules and Section 155 (4) of the Constitution of the Independent State of Papua New Guinea, leave be granted to Plaintiff to further amend the statement of claim endorsed to the Writ of Summons filed on 24 July 2019 in the terms proposed in the draft.
    2. Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution of the Independent State of Papua New Guinea, leave is sought to extend the directions issued by this Honourable Court on 3rd of September 2024 to further prepare the matter for trial.
    3. Costs be reserved.
  3. The proposed Further Amended Writ of Summons and Further Amended Statement of Claim for which the Plaintiff seeks leave is annexed to the affidavit of the Plaintiff sworn and filed on 28 October 2024.
  4. Counsel for both parties made detailed oral submissions in relation to the Notice of Motion, and handed up written submissions. After hearing the parties I temporarily adjourned Court. When I returned to Court I made orders dismissing the Notice of Motion and refused to exercise the power to permit further amendment of the Amended Writ of Summons. I indicated that I would deliver reasons at a later date. I now publish those reasons.
  5. Following delivery of my reasons in respect of the Notice of Motion I proceeded to hear the substantive claim of the Plaintiff. Oral submissions were made by Counsel and written submissions were filed by both parties. After the hearing of submissions I reserved my judgment in respect of the Amended Writ of Summons and Amended Statement of Claim.
  6. Now also follows my judgment in respect of the substantive proceedings before me.

NOTICE OF MOTION FILED 28 OCTOBER 2024


  1. The Plaintiff in the Notice of Motion relied on Order 8 Rule 50 (1) and (2) which reads:
General
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) ...
(4) ...
  1. Order 8 rule 50 (1) and (2) confers discretionary power on the National Court to permit any documents in the proceedings to be amended in such manner as the Court thinks fit: see Malewo v Faulkner [2009] SC960.
  2. In the exercise of my discretion, I was not prepared to grant leave to the Plaintiff to amend the Amended Statement of Claim before the Court.

Proposed pleadings improperly plead evidence, not facts


  1. First, the amendments to the Amended Statement of Claim sought by the Plaintiff relate almost exclusively to his evidence that his employment was terminated without cause by the Defendant. The Plaintiff asserts this view extensively in his affidavit material filed in the proceedings. The additional three pages of pleading proposed in paragraph 5 of the proposed Further Amended Statement of Claim commences “The Plaintiff was terminated without cause and the chronological events that led to the Plaintiff’s termination are outlined herein;”, and over the following 20 sub-paragraphs essentially replicates the Plaintiff’s evidence as set out paras 9 (a)-(n) of his affidavit filed 20 September 2020.
  2. As was pointed out by the Supreme Court in Geno v O’Neill (2017) SC 1617, pleadings drive the evidence in a case (see also Telikom (PNG) Ltd v Wamara (2019) SC1762). Pleadings also the foundation for the reception of the evidence in a case: Ronnie Choi Constructions Ltd v Tela [2024] SC2617 at [49]. Pleadings plead facts, not evidence. The proposed para 5 sought to be included in the Amended Statement of Claim fundamentally pleads evidence, not facts.

Allegations of unlawful termination already brought before the National Court and dismissed


  1. Second, to the extent that the Plaintiff seeks to ventilate grievances concerning the mode of the termination of his employment with the Defendant and whether that termination was lawful, I note that the Plaintiff has already, and unsuccessfully, made a challenge to the lawfulness of the conduct of the Defendant in proceedings commenced by him on 12 October 2015 in National Court proceedings WS No 1403 of 2015. In those proceedings the Plaintiff relevantly pleaded:
    1. The Plaintiff commenced work on 19th January, 2009 as Assistant Plantation Manager and held that position until his termination on 14.11.2013.
    2. The Plaintiff’s termination was effected in accordance with clause 8.2 of the Executive Service Contract.
    3. The Plaintiff’s termination was effected by the Defendant Management after he was suspended on 7.11.2013 which was subsequently extended on 11.11.13 to complete investigations into the allegations against the Plaintiff.
11. The Plaintiff lodged an appeal against his termination on:
  1. 15th November 2013 to the General Manager of Defendant Company, Mr Harry Brook.
ii. 19.11.13 to Defendant’s Human Resource Department.
iii. 2.12.13 to the Chief Executive Officer Mr Nick Thompson.
  1. 9.12.13 to the Provincial Labour Office (hereinafter referred to as PLO).
  1. From these appeals, only the Defendant’s Human Resources Department confirmed the Plaintiff’s termination and this prompted the PLO to write to the Defendant seeking verification of the termination.
  2. The Defendants followed Plaintiff’s termination by paying him only 14 days pay.
  3. The Defendant then evicted the Plaintiff from the Defendant’s owned residential home on 21.12.13.
  4. The Defendant’s action in terminating Plaintiff was in direct breach of the ‘Executive Service Contract’.
Particulars of Breach
  1. Clause 8.1(a) – the Plaintiff was not given (3) three months notice of intention to terminate by the defendant.
  2. Clause 8.1(b) = the Plaintiff was given immediate notice of intention to terminate (3) three months HOWEVER the defendant deliberately, knowingly and willingly did not pay the money in lieu of notice (3) three months.
  3. The Plaintiff was paid fourteen days of pay after 19/11/13 and not the full month salary by the defendant.
  4. The plaintiff was evicted out of the defendant owned house on the 21/12/13, not 28/11/13.
  5. The defendant did not arrange and pay for the plaintiff’s cargo and repatriation of him and his family.
  1. The Defendant’s action in evicting the Plaintiff was done by issuance of airline tickets for him and his family to Popondetta, his point of engagement, but without making necessary arrangement for the Plaintiff’s cargo and his family.
The Particulars of Unfairness
  1. Plaintiff was not allowed in the suspension, investigation and appeal processes to properly defend the allegations made against him, amounting to BREACH OF NATURAL JUSTICE.
  1. The Plaintiff was put to immense stress, distress, inconvenience and humiliation...
  2. Plaintiff incurred expenses to sustain himself and to sort out the inconveniences caused by the Defendant’s actions...
19. ...

  1. The Defendant in its Defence filed 26 November 2015 in WS No 1403 of 2015 relevantly pleaded:
    1. In response to paragraph 9 and 10 of the statement of claim the Defendant say that the Plaintiff was terminated under clause 8.2 of his contract of employment for stealing.
      1. It was reported that the plaintiff was stealing fuel and money (wages) from the company. The Plaintiff was asked by the Defendant to respond to the allegations but he refused to answer and respond to the allegations made and therefore he was terminated.
    2. In response to paragraph 11 and 12 of the statement of claim, the Defendant admit that the plaintiff’s appeal was lodged but management upheld the decision on termination as the Plaintiff did not give any reasonable explanation on why he was stealing from the company.
    3. The Defendant admit paragraph 13 and say that they paid the Plaintiff his final entitlement.
    4. With respect to paragraph 14 of the statement of claim the Defendant say that the Plaintiff and his family were given adequate time to pack their belongings and to sort themselves out. Their time was up so they were asked to vacate the company house.
    5. In response to paragraph 15 of the statement of claim, the Defendant say that the Plaintiff was terminated under clause 8.2 for being dishonest and stealing and therefore he can be terminated without notice.
12. ...
13. ...
  1. The Defendant further denied the particulars of unfairness pleaded under paragraph 16 of the statement of claim and say that the plaintiff was given a chance to be heard and he refused to talk and remained silent.
15. ...

  1. The Plaintiff in WS No 1403 of 2015 filed detailed affidavits, annexing much of the material presently before me in the present proceedings including the Executive Service Contract, the termination notice dated 14 November 2013, correspondence from the defendant’s human resources department, letters suspending the plaintiff, correspondence from the Plaintiff to the Defendant requesting fact files, copies of witness statements referable to the Plaintiff’s alleged conduct for which his employment was terminated, and the Plaintiff’s letters internal to the defendant seeking to appeal the termination decision.
  2. On 13 July 2016 the Defendant filed a Notice of Motion in WS No 1403 of 2015 seeking the following relief:
    1. That the entire proceeding should be dismissed for failing to disclose a reasonable cause of action pursuant to Order 12 Rule 40(1)(a)(b)(c) of the National Court Rules.
2. That the Plaintiffs should pay the costs of this application.

  1. In respect of that Notice of Motion the Defendants filed written submissions in which they submitted, in summary:
  1. On 14 October 2016 Batari J ordered that the entire proceedings be dismissed for failing to disclose a reasonable cause of action, and that costs be dismissed.
  2. Plainly in WS No 1403 of 2015 the Plaintiff sought to ventilate a multiplicity of issues including referable to the manner in which he was terminated and whether his entitlements had been properly paid out. After the dismissal of the proceedings in WS No 1403 of 2015 it appears from the pleadings presently before the Court in WS 926 of 2019 that the Plaintiff confined his complaints to the nature of his entitlements following termination. It is only now, a week before trial in WS 926 of 2019, that the Plaintiff has sought to amend his pleadings to reactivate the issue of the lawfulness of the termination of his employment in respect of which he was previously unsuccessful, and which he did not revisit in the pleading as filed in this case.
  3. No reasons for decision of Batari J in WS No 1403 of 2015 were, to my knowledge, published. If the Plaintiff had sought to take issue with the decision of Batari J to summarily dismiss the earlier proceedings, there was nothing preventing him doing so. Insofar as I am aware however, no challenge to that decision was made by the Plaintiff.
  4. In my view, the Plaintiff has had ample opportunity since 2015, notwithstanding the decision of Batari J, to review his position and consider whether he wished to pursue a claim referable to the alleged unlawfulness of the termination of his employment. While not necessarily precluding the Plaintiff from amending his Amended Writ of Summons in the terms he has sought, the fact that the Plaintiff has already unsuccessfully pursued, in litigation before this Court, the avenue of claims he now seeks to incorporate into his Amended Writ of Summons in my view weights against the provision by the Court at this late stage of a further opportunity to amend his Court process.

Case management


  1. Third, and following on from the previous two points, I consider that the Notice of Motion to further amend the Amended Writ of Summons and Statement of Claim, being filed only one week before the trial, in circumstances where relevant events took place thirteen years ago and the present proceedings were instituted five years ago, has come far too late in the proceedings to warrant the orders sought by the Plaintiff in the interests of justice.
  2. It is clear that if the Amended Writ of Summons and Amended Statement of Claim were amended as sought by the Plaintiff, the trial dates presently set would be vacated, and the matter would essentially return to the beginning in respect of the Defendant’s defence, the evidence to which the Court should be taken, and case management orders taking the hearing to trial.
  3. The Plaintiff submitted that any prejudice to the Defendant occasioned by an order in terms sought by the Notice of Motion could be remedied by a costs order. The Plaintiff also submitted that the relief sought by the Notice of Motion was warranted in the interests of justice, and in order that the “real issues” before the Court could be pleaded as contemplated by Order 8 rule 50(2).
  4. In recent times the Courts have recognised that a costs order is not necessarily a panacea to remedy all prejudice suffered by a party in litigation. As Kandakasi DCJ explained in Independent State of Papua New Guinea v Tamate [2021] SC2132 at [58] et seq, principles of case management have been recognised as important by the Supreme Court:
    1. ... One such judgment was the one in Napanapa Landowners Association v. Logae (2016) SC1533, per Injia CJ (as he then was) as president and Hartshorn and Collier JJ as other members of the Court. That was in the context of an appeal against a decision dismissing a belated application for a joinder of the appellant made on the day the proceeding was fixed for trial in the National Court. In dismissing the appeal, the Court said:
“In written submissions to this Court the first appellant contended that the lateness of the appellants’ joinder application was an irrelevant consideration for his Honour to take into account in determining the joinder application. We do not agree. Case management issues, and the avoidance of wastage of judicial time and public expenses, are relevant factors for Courts to take into account in exercising its discretion whether, at a late stage of proceedings, an application for joinder should be entertained.”
  1. In the same year of the above decision, this Court repeated the emphasis on case management in its decision in Kewa v. Kombo (2016) SC1542, per Gavara-Nanu, Hartshorn and Higgins JJ. That was in the context of amendments to pleadings. There, the Court cited and applied the Australian High Court decision in AON Risk Services Australia Limited v. Australian National University [2009] HCA 27, the ratio of which was succinctly summarised by French CJ at [4] – [6] in terms of:
“... it was held that, whilst amendments should be allowed to enable the true merits of the dispute to be addressed, with costs as the appropriate remedy for an opposing party, case management considerations, the effective and efficient use of court resources, the prejudice that may be occasioned by delay and any explanation for it may outweigh those other considerations so that leave to amend pleadings should be denied. It may be observed too that the result of the denial of leave to amend in that case did not leave the respondent without a remedy.”
  1. Earlier in 2014, this Court in Kalinoe v. Paul Paraka Lawyers (2014) SC1366, per Kandakasi J (as I then was), David and Murray JJ, had the occasion to comment on a case management process step, namely holding of a status conference. In respect of that part of the process, the Court noted:
“... at a status conference the Court merely checks and ensures compliance of its earlier orders and directions and confirm the date fixed for hearing. The only exception would be cases in which there has been some serious intervening event that was beyond the control of the parties such as death of one of the parties or counsel, which would clearly prevent the hearing from proceeding. We also noted that, if there was such an intervening event, it was incumbent on the party affected to immediately draw that to the attention of the Court and apply for a vacation of a scheduled Court event. Depending on when such an event occurs this could be done at the schedule status conference if not possible earlier or soon after the conduct of the status conference.”
  1. Other decisions which highlight the importance of effective or active case management include the decisions in Amaiu v. Yalbees (2020) SC2046, per Salika CJ, Makail and Berrigan JJ at [32-33]. Another one is the decision in Alex Awesa v. PNG Power Ltd (2019) SC1848, per Hartshorn, Yagi & Thompson JJ who dismissed the appeal in its entirety. In so doing, the Court noted the appellant was bound by a statement of agreed and disputed facts and issues settled by the parties following case management directions. He was therefore precluded from raising any issue not captured in the statement.
(emphasis added)
  1. The Plaintiff filed and served his Amended Writ of Summons and Amended Statement of Claim on 24 July 2020. He has been represented by lawyers during that time – indeed the Defendant submits (and this is not disputed) that the Plaintiff has been represented by the same lawyer the entire time (albeit at different law firms). The National Court of Justice is a busy Court. Counsel for the Defendant submitted that if the relief sought by the Plaintiff was granted and the pleadings amended, the likelihood is that the hearing would not take place for another year. I consider that this estimation is, in all likelihood, correct. In my view the prospect of such further delay in holding the hearing is simply not acceptable, particularly in circumstances where the events the subject of the proceedings took place 11 years ago and the present proceedings filed over 4 years ago.
  2. The Plaintiff submitted that the amendment he sought would not cause real prejudice or injustice to the Defendant. I disagree. The prospect that litigation of several years standing, which was about to go to final determination, would be delayed for at least a further year because of a sudden decision of the Plaintiff to amend his pleading must of itself constitute prejudice to the Defendant.
  3. I further note that no explanation has been provided by the Plaintiff as to why he, or his lawyer, at this very late stage in these proceedings, have now formed the view that a “real” question in controversy between the parties concerns the lawfulness of otherwise of the termination of the Plaintiff when, prior to last week that the Notice of Motion was filed, the Plaintiff appears to have been content, for four years, to rely on his Amended Statement of Claim as pleaded. Mr Mokae for the Plaintiff referred the Court to the decision of the National Court in Kala v New Britain Palm Oil Limited [2007] N3125, citing it as authority for the proposition that the underlying law restricts an employer from hiring and firing at will, without or without good reason and without providing the employee with an opportunity to be heard. I understand that Mr Mokae’s submission was to the effect that this proposition was in issue in the case presently before me.
  4. Even placing to one side the point that no explanation has been offered why this is only now a “real” question in controversy, I am not persuaded in any event that there is any substance to this principle. As Mr Isaac for the Defendant pointed out, there is authority at the highest level indicating that there is no such principle of the underlying law as submitted by the Plaintiff: New Britain Oil Palm Ltd v Sukuramu [2008] SC946; Jimmy Malai v PNG Teachers Association [1992] PNGLR 568; Tjandranegara v BSP Financial Group Ltd [2021] N9353 at [61]-[63].


Conclusion


  1. It follows that the appropriate order was that the Notice of Motion be dismissed.

AMENDED WRIT OF SUMMONS


  1. Turning now to the Amended Writ of Summons, I note that the Plaintiff pleaded in summary as follows.
  2. The Plaintiff is an individual and the Defendant a company registered under the Companies Act 1997.
  3. The Plaintiff pleaded that on 19 January 2009 he entered into an Executive Service Contract (Contract) with the Defendant in the position of Assistant Plantation Manager to manage one of the Defendant’s oil palm plantations. At the material time the plaintiff was based at Bebere Plantation outside of Kimbe Town in West New Britain.
  4. The Plaintiff pleaded that on 14 November 2013 his contract was terminated by the Defendant without any reasonable excuse or fact establishing guilt on the part of the Defendant.
  5. The Plaintiff relied on cl 8.2 of the Contract which relevantly provided:
If the employee:

(a) Is guilty of dishonesty, insobriety, or any criminal offence;
(b) In any way misconducts himself as an officer of the company;
(c) Incurs serious illness which in the opinion of any medical practitioner nominated by the company is due to his own misconduct or willful neglect;
(d) Becomes bank craft [sic] or makes any composition with or any assignment for the benefit of his creditors;
(e) Is guilty of a material breach on non-performance of any of the terms of this contract or
(f) If his health should in the opinion of any medical practitioner nominated by the company render his unfit to perform his duties under this contract in the reasonably foreseeable future;
Then and in such cases, the company shall be entitled to terminate the contract immediately without notice.
  1. The Plaintiff pleaded that he was not informed in writing of any particular or specific grounds referable to cl 8.2.
  2. It was plain from cl 8 of the contract that the Defendant required certain conduct from the Plaintiff.
  3. It was further plain from cl 8.1 of the contract that the Plaintiff would be paid money in lieu of notice immediately after the Plaintiff’s employment was terminated. In particular cl 8.1 provided:
Subject to the normal probationary period being successfully completed this contract may be terminated by either the employee giving three months notice to the company or the company giving:
(a) Three months notice to the employee at any time after the end of the probationary term under clause 3; or
(b) Immediate notice to the employee at any time and paying the employee the cash equivalent of salary and other benefits which could be made available to the employee over the balance of the minimum term (if the notice is given during the minimum term) or six months, whichever is the greater, and in such event the company shall not be liable to the employee for any further salary, lump sum payment, benefits, damages or compensation of any kind.
(c) During the probationary term either party may terminate this contract by giving the other party one month’s notice in writing.

  1. The Plaintiff pleaded that by a letter dated 14 November 2013 from the Defendant the Plaintiff was terminated and told that his money in lieu including other benefits/entitlements would be paid on 19 November 2013. The Defendant failed to pay the plaintiff that money on that date.
  2. The Plaintiff pleaded that the Defendant did not pay the Plaintiff any money on 14 May 2014, which was referable to the “greater” period.
  3. The Plaintiff pleaded that the Defendant knowingly breached clause 8.1(b) of the contract.
  4. The Plaintiff pleaded that, as a result, he suffered loss of further salary, lump sum payments, benefits, damages or compensation.
  5. The Plaintiff set out in the writ of summons the particulars of his lost salary and increments, and benefits, totalling K288,496.25.
  6. The Plaintiff pleaded that as a result of the breach he and his family members have suffered in total the sum of K402,085.25, which constituted the amount of K288,496.25 plus the amount of K133,490.00, referable to amounts denied to the Plaintiff in the previous two years by the Defendants. In addition to the amount of K402,085.25 the Plaintiff also claimed Special Damages, Interest pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act Chapter No. 52, and costs.

AMENDED DEFENCE


  1. By an Amended Defence filed 28 July 2020 the Defendant pleaded, in summary, as follows.
  2. The Defendant said that the Plaintiff was terminated on 14 November 2013 under cl 8.2 of the contract of employment for stealing fuel from the Defendant amongst other allegations.
  3. The Defendant said that:
  4. The Defendant said that the Plaintiff was informed in writing of his termination under cl 8.2 of the contract, and the Defendant was not obliged under the contract or otherwise to set out the grounds of termination in the letter of termination.
  5. The Defendant said the Plaintiff failed to devote himself diligently, faithfully, honestly and exclusively to his duty when he stole from the Defendant, which amounted to serious misconduct.
  6. Further in respect of the contract, the Defendant said, in summary:

EVIDENCE IN THIS PROCEEDING


  1. Considerable evidence has been filed in this matter. The parties however limited the evidence on which they relied to the following affidavits.
  2. The Plaintiff relied on:
  3. The Defendant relied on:
  4. Relevantly to issues of liability as claimed by the Plaintiff, key evidence was set out in the Plaintiff’s affidavit filed 22 September 2020 where he relevantly deposed:
1. ...
2. ...
3. ...
4. ...
Brief Facts
  1. On 19 January 2009, I entered into an Executive Service Contract with the Defendant company herein on the position as Assistant Plantation Manager. [Annexure C]
  2. At the material time, I was managing the Defendant’s Bebere Plantation, Division One, Mosa Group of Plantations.
  3. On 14 November 2013 I was terminated by the Defendant without proving the allegation of fuel theft against me.
  4. Clause 8.2 of the executive Service contract was inappropriately applied to terminate my employment because the Defendant Company did not follow proper disciplinary procedures as set out in the Defendant’s General Policies & Regulations Hand Book released April 2009 to establish cause against me.
9. History of my termination
  1. On 7 November 2013 by way of an internal memo, the Defendant suspended me over allegation of fuel theft.
  2. On 9 November 2013, I acknowledged receipt of my suspension by way of a memo dated 9 November 2013 to the Defendant. Then in my memo, I also requested for the Defendant to make available to me full investigation file in order for me to respond on the allegation [Annexure G]
  1. On a memo to me dated 11 November 2013 by the Defendant, my suspension was further extended for two days for the reason that the investigation was not yet ready for hearing. On the same memo, I was also advised that there will be a hearing on the allegation as soon as the investigation was completed and that the hearing was set on 13 November 2013 [Annexure H].
  1. At around 10am on 12 November 2013, during the extended period of my suspension, the Head of Department of Security (HOD Security) of the Defendant Company summoned me to attend at his office. The HOD Security asked me to confirm with him whether the allegation against me was true. I did not answer him but instead, I asked the HOD Security to provide to me the investigation report in order for me to respond on the allegation. I also asked the HOD Security on whether he received copy of my memo dated 9 November 2013. The HOD Security responded that he did not receive the memo. Thereafter the HOD Security provided to me a purported investigation report. [Annexure I]
  2. On 12 November 2013 I responded on the investigation report and denied the allegations therein. [Annexure J]
  3. I was made aware through the internal memo dated 11 November 2013 that on 13 November 2013, there will be a hearing conducted by a panel on the allegation based on the investigation report. This never eventuated and the date that was set for the hearing lapsed. I was not part of the hearing if there was one on 13 November 2013.
  4. Around 4pm on 14 November 2013, I was called by the Group Manager, namely Angus Wilson to report to his office. I went to Mr Wilson’s Office and he told me that the investigation on the allegation was completed. Then I asked Angus Wilson if this was the supposed hearing that was to happen on 13 November 2013. Angus Wilson then became angry over what I said and he said to me to this effect and I quote; “what hearing are you talking about?” Then I replied and responded to this effect and I quote, “don’t I have my right to defend myself on the allegations?” Then Mr Angus Wilson replied to me and I quote what he said, “Titus, stop wasting time with the technicalities, you are terminated effective as today”. Mr Wilson then pulled his drawer open, pulled out an envelope and gave me a pre-arranged termination notice.
  5. Then I asked Mr Wilson if I could read before him the content of my termination notice. He agreed and I read my termination letter before Mr Angus. Then I told Mr Angus Wilson that I am not accepting the termination notice. Mr Wilson then told me that if I was not happy, I would appeal within seven days from the date of the termination.
    1. On 15 November 2013 I lodged my first Appeal in the form of a grievance letter against my termination to the General Manager of the Defendant Company. I did not receive any response from the General Manager. [Annexure K]
  6. On 19 November 2013, I lodged my second Appeal against my termination to the Human Resource Manager of the Defendant Company. [Annexure L]
  7. On 20 November 2013, I received a response from the Human Resource Manager on my second appeal. I was advised in the inter office memo that there was an appeal hearing on 18 November 2013, which I am not not aware of or in which I was not involved if there was any appeal hearing on the said date. I was supposed to present myself in person in such hearing for me to participate and defend myself. My Appeal is dated 19 November 2013 and the purported hearing took place on 18 November 2913....
  1. On 2 December 2013, I lodged my third Appeal to the Chief Executive Officer of the Defendant Company. I did not receive any response no were there any hearing conducted on the third appeal...
  1. In all the three Appeals I made, I asked for a fair hearing which I was not accorded from my suspension to my termination. I was never involved if there were any hearings conducted both in the suspensions and appeals...
  2. The Company Policies and Regulations Hand Book of the Defendant Company released in April 2009 clearly provides for procedures for the Defendant to follow from suspension, investigation, termination and to appeal on disciplinary matters involving its employees. [Annexure O]
10. ...
  1. Then what I expected from the Defendant was for my money in lieu of notice to be paid pursuant to clause 8.1(b) of my Executive Service contract based on the Defendant’s memo dated 14 November 2013.
  2. On 21 December 2013, I was asked to vacate the Company premises after all my appeals were unsuccessful only by way of issuance of airline tickets for me and my family members to travel to Oro Province via Port Moresby.
  3. The airline tickets were valid until 21 December 2013 only for me and my family to travel to Oro Province. The airline tickets were issued even without proper arrangement to repatriate my cargo and family...
  4. The conduct of the Defendant was harsh and oppressive in the manner I was treated with my big family.
  5. The Executive Service Contract nor the General Policies and Regulation Hand Book of the Defendant Company capture or does not provide for any clause on whether the money in lieu of notice will be paid with or without cause.
  6. The General Policies and Regulations Hand Book and the Executive Service Contract of the Defendant Company only provide for payment of money in lieu of notice with notice or without notice. That simply means the Defendant communicating with the employee prior to terminating their employment.
17. ‘Notice’ is defined in the Executive Service Contract under clause 16....
  1. It was not a mistake that the Defendant Company made when relevant notices were given to terminate me including my notice to pay my money in lieu of notice as provided for under clause 8.1(b) of the contract.
  2. The letter of suspension written by Angus Wilson, Group Manager – Mosa and dated 7 November 2013, annexed to the Plaintiff’s affidavit filed 22 September 2020, provided as follows:
Following our conversation in my office earlier this morning I now write to confirm that as a result of an initial investigation into a series of allegations made against you that you are to be suspended from duties from today 07.11.13 until Mon 11.11.13 at which point you will be required to attend a hearing to discuss the following allegations.
That you or members of your family were involved in removing fuel from company vehicles and transferring it to your personal vehicle
Payroll irregularities including payment of terminated payment of terminated employees and use of a false name to pay a family member.

During the period of your suspension can you please ensure that you remain onsite and are available for interview as the Security Dept will need to contact you.

If you have any queries relating to this matter please do not hesitate to contact me.

  1. The memorandum from the Plaintiff to Mr Angus Wilson dated 9 November 2013 provided as follows:
RE: ACKNOWLEDGEMENT
I acknowledge receipt of your suspension letter dated 07/11/13.
I also understand the allegations raised against me are very serious and criminal in nature. Furthermore, the allegations go a long way to affect my career with N.B.P.O.L. and my future life including that of my family.
As such, I am here by requesting that a full investigation file be made available to me, to respond accordingly. It is also my right to be shown this file prior to responding.
Thank you for your consideration.

  1. Annexed to the Plaintiff’s affidavit filed 22 September 2020 was a document to which he referred as a “purported investigation report”. The document was dated 12 November 2013 and signed by Paul Kallop, HOD Security. It provided materially as follows:
Subject: ALLEGATIONS THAT YOU OR MEMBERS OF YOUR FAMILY WERE INVOLVED IN REMOVING FUEL FROM COMPANY VEHICLES AND TRANSFERRING IT TO YOUR PERSONAL VEHICLE.
  1. Below are the allegations from Witnesses Statement that you had directed your relatives/associates to remove fuel from the company tractor/genset for your personal use.
Witness 1
I can recall back on the 12th of February 2013 when we were loading fruit on to tractor number D317 when Mr Titus Mamugoba adopted son Mr Benson Mamugoba came to us and said Bossman salim mi kam lo yupela long skelim hap diesel long tractor D317 ita by me go skelim long kar. I have been sent here by Assistant Manager referred to as boss to drain fuel from tractor number D317 to his vehicle.
He later directed us to drive to house number JG 1 where I assisted him drain the 1 x 20 litre diesel from the tractor and we left him. We head back to where we had stopped loading while he went off with the 1 x 20 litre fuel to his father’s house.
Witness 2
I can clearly recall on the 15th March 2013 at around 1400 hours whilst leaning the generator, Reginald Vaso drove in on Mr Titus Mamugoba white Toyota Land Cruiser. He parked the vehicle in front of the generator set yard and came out with 2 x 20 litre plastic and told me that he was sent by Mr Titus Mamugoba to drain fuel out of the generator stand by tank into the plastics. This was the manager’s instruction through Mr Reginald Vaso as I had no authority to prevent him from draining fuel she he went ahead. Reginald Vaso went ahead drain fuel filling up the two (2) plastics and refill onto Mr Titus Mamugoba private vehicle and drove back to his resident.
Witness 3 – 12 February 2013
On the above date we were at Field E7 where Mr Titus Mamugoba’s adopted son Benson Mamugoba approach us and directed to proceed to house number JG 1. We boarded tractor number D317 and proceed to JG 1 where he brought over 1 x 20 litres empty plastic. He went ahead and drain fuel filling up the 1 x 20 litre plastic then walked over to his father’s house while we headed back to field E7 to continue with where we had left.
Response by Benson Gainderi to Witness 3 and 1
In regard to the statement by Stanley Ark and Simon Pinsen, I can say that I did not refill 20 litres as they say. I only refilled may be 10 to 15 litres. I was at first asked by my uncle to get some fuel from the tractor but then he changed his mind and said to forget the idea. But I went ahead and refilled it any way. I wanted to use it to fix my dad’s car.
  1. In a document dated 12 November 2013 headed “Re: Response to allegation of transferring fuel from company vehicle to my vehicle for personal use” the Plaintiff’s signed response was:
WITNESS 1 – Allegation is not true.
WITNESS 2 – Allegation is not true.
WITNESS 3 – Allegation is not true.

  1. The letter of termination written by Angus Wilson, Group Manager – Mosa and dated 14 November 2013 was annexed to the Plaintiff’s affidavit filed 22 September 2020, and provided as follows:
Dear Mr Mamugoba
Following our meeting in my office this afternoon, during which the findings of an investigation into a number of allegations made against you were presented and discussed. I now write to confirm that I accordance with clause 8.2 of your executive Service Contract your employment with New Britain Palm Oil Ltd is to be terminated immediately.
Your outstanding entitlements, including pay in lieu of notice, as specified in your Executive Service Contract will be calculated by Finance Dept and should be ready for collection by 19.11.13 and I ask that you begin making arrangements to ensure that you and your family have vacated the company house no later than 28.11.13.
On behalf of New Britain Palm Oil Ltd I would like to thank you for your service and wish you well in the future.


Correspondence between the Defendant’s HR and the Provincial Labour Office


  1. In his affidavit filed 22 September 2020 the Plaintiff relied on a subsequent letter from Mr Michael Wecke, the Human Resources Manager of the Defendant, to the Provincial Labour Office dated 29 June 2015 (also referring to earlier correspondence dated 13 December 2013). Relevantly in that letter Mr Wecke wrote as follows:
We refer to your letter dated the 8th of April...
Disciplinary processes and decisions taken against Titus Mamugoba
We refer to our earlier response on 13th December 2013 – copy attached. The company’s position remains the same. But to give finality to the Company’s response, the following Disciplinary processes and decisions were taken against, and accorded to Titus:
Report received implicating Titus Mamugoba of –
  1. Authorizing pay to persons on longer employed by the company
ii. Theft of company fuel for private motor vehicle
  1. Authorizing of ghost names, and pay deductions to repay personal credits on goods obtained on credit of the plantation trade store, and
  2. Authorizing unauthorised persons to possess and drive a company motor bike
Report registered and submitted for investigations in accordance with company policies and procedures
Full investigations conducted, which included interviews and statements from witnesses including with, and from Titus himself.
Suspension of Titus pending the conduct and the conclusion of the investigations
Conclusion of the Investigation and Report
Consideration of Investigation Report and Decision made to Terminate Titus Employment with the company based on Disciplinary Grounds of Gross-Misconducts
Effecting of the Termination of Titus employment with the company
Appeal lodged by Titus. Titus admitted to misconducts above. He only appealed for the reconsideration and leniency on the decision to terminate him, and if that was still maintained by the company, appeal to reconsider other decisions taken with the termination, including the period given to him to vacate company premises.
Hearing of Titus’ Appeal. The Appeal panel comprised of Human Resource Manager, Company Secretary and Head of Plantation. Titus presented his Appeal in person. In his presentation, Titus again conceded to the conducts committed and confirmed he was appealing for leniency of the decisions made against him.
Appeal considered and decision taken to maintain Termination.
The above is provided as a response to your Office. The company maintains that all due processes were followed and accorded to Titus, and that Titus has exhausted the Appeal procedure within the company.


Evidence of Ms Lydia Tunian, Senior Legal Officer of the Defendant


  1. Key evidence on which the defendant relied in respect of liability was the affidavit of its Senior Legal Officer, Ms Lydia Tunian, filed 21 October 2020. Materially in that affidavit Ms Tunian deposed, in summary:

CONSIDERATION


  1. There was some agreement between the parties in relation to the events at the time of the termination of the employment of the Plaintiff and in respect of correspondence between the parties. The key issue of dispute between the parties concerned whether the conduct of the Defendant, in terminating the employment of the Plaintiff, both in respect of the process and the payment of salary in lieu of notice, constituted a breach of contract by the Defendant.
  2. The essential case of the Plaintiff is that the Defendant’s conduct constituted a breach of the Plaintiff’s employment contract dated 19 January 2009 because, in the submission of the Plaintiff:
  3. In my view the Plaintiff’s claim fails, for the following reasons.

(1) Grounds for Termination of the Plaintiff’s Employment Contract


  1. I am satisfied that the Defendant clearly explained to the Plaintiff the reasons for his suspension, and the subsequent termination of his employment contract. The letter from Angus Wilson to the Plaintiff of 7 November 2013 in which the Plaintiff was suspended specifically explained that the suspension was because of the following allegations:
  2. The evidence is unclear as to whether the Defendant persisted in alleging perpetration of payroll irregularities by the Plaintiff. The Plaintiff clearly understood the allegations against him, and that they were “very serious and criminal in nature” as he stated in a memorandum to Mr Angus Wilson dated 9 November 2013.
  3. However, the Defendant certainly continued to allege that the Plaintiff or family members were involved in removing fuel from company vehicles and transferring the fuel to the Plaintiff’s personal vehicle. I note a letter dated 12 November 2013 from the Plaintiff to the Defendant setting out what appeared to be excerpts of three witness statements from employees stating to the effect that the Plaintiff or his adopted son had directed them to so transfer fuel. The Plaintiff in his communication to the Defendant also dated 12 November 2013 responded that the allegations were not true.
  4. In a letter from Mr Angus Wilson of the Defendant to the Plaintiff dated 14 November 2013 Mr Wilson referred to “our meeting in my office this afternoon, during which the findings of an investigation into a number of allegations made against you were presented and discussed. I now write to confirm that in accordance with clause 8.2 of your Executive Service Contract your employment with New Britain Palm Oil Ltd is to be terminated immediately”. There is no suggestion that the “number of allegations” to which the letter referred were anything other than the allegations concerning misappropriation of fuel and/or payroll irregularities.
  5. I further note the memorandum from the Plaintiff to Mr Harry Brook, General Manager NBPOL (Kimbe) dated 15 November 2013 (being Annexure “K” to the Plaintiff’s affidavit filed 22 September 2020), in which the Plaintiff stated:
I am very much aggrieved by the manager in which investigations were conducted into allegations against me and my subsequent termination of employment to N.B.P.O.I. Kimbe.
  1. In that memorandum the Plaintiff complained to the Defendant about what he perceived to be the unfairness of his treatment by the Defendant, however he continued:
Sir, whilst being sorry about doing something wrong as an officer of the company, things do happen in a work place situation and for good reasons and can be explained. Policies are breached but for the ben fit [sic] of the company. Sir I feel unfairly treated and bring my grievance to your humble attention.
  1. As Counsel for the Defendant submitted, in the memorandum dated 15 November 2013 the Plaintiff admitted to “doing something wrong as an officer of the company”. It is reasonable to infer that the Plaintiff in doing so admitted to the allegations against him in previous correspondence to him from the Defendant as the “wrong doing”.
  2. To the extent that the Plaintiff contends he was not informed of the reasons for his termination of employment, such contention is not substantiated.

(2) Clause of the Contract under which the Plaintiff’s employment was terminated


  1. The Plaintiff submitted that it was not put to him that the termination of his employment was pursuant to cl 8.2 of the Executive Service Contract. The Plaintiff also submitted in relation to cl 8.1 of the Executive Service Contract that:
    1. Clause 8.1 can only be relied on by the company if it wants to terminate a contract for reasons beyond its control, eg if its operations are curtailed due to an earthquake. In the alternative, it should be read down to only allow the company to terminate the employee for a good and proper reason. It is unprecedented for an employer to sack an employee without establishing cause against the Plaintiff.
  2. I am satisfied that the Plaintiff’s contract of employment was terminated by the Defendant pursuant to cl 8.2, which entitled the Defendant to terminate the Plaintiff’s employment immediately without notice for, inter alia, dishonesty, or misconduct as an officer of the Defendant. It is clear from the evidence before the Court that the Defendant was satisfied by evidence before it that, at the least, the Plaintiff had wrongfully taken fuel from the Defendant’s motor vehicles for his own use on three occasions. The Defendant had informed the Plaintiff in correspondence that allegations to this effect were made against him. In his letter to the Plaintiff dated 14 November 2013, Mr Angus Wilson specifically confirmed that the Plaintiff’s employment was terminated “in accordance with cl 8.2 of your Executive Service Contract”.
  3. Clause 8.2 does not provide for the payment of any salary in lieu of notice.
  4. In his letter of 14 November 2013 to the Plaintiff, Mr Wilson also wrote:
Your outstanding entitlements, including pay in lieu of notice, as specified in your Executive Service Contract will be calculated by Finance Dept and should be ready for collection by 19.11.13 and I ask that you begin making arrangements to ensure that you and your family have vacated the company house no later than 28.11.13.

  1. The Plaintiff urged the Court to find that, in light of this statement, the Plaintiff had actually been terminated pursuant to cl 8.1(b) of the Executive Service Contract, and that relevant periods of notice (or salary in lieu of notice) were required.
  2. This submission is somewhat at odds with the written submission of the Plaintiff referable to the interpretation of cl 8.1(b) which I have set out above. To the extent necessary for me to find, I note that cl 8.1(b) appears to give the Defendant the power to terminate an Executive Service Contract pursuant to cl 8.1(b) for any reason. Earthquakes, or other Acts of God, are not required to occur to so empower the Defendant in terms of that clause. The only qualification is the period of notice prescribed by cl 8.1(b). This is consistent with ss 33 and 34 of the Employment Act 1978.
  3. Notwithstanding that the Defendant stated in the letter of 14 November 2013 that it would pay the Plaintiff money “in lieu of notice”, I am satisfied that this was simply an error on the part of Mr Wilson, and did not somehow activate cl 8.1(b) of the Executive Service Contract or mean that, in fact, the Plaintiff’s employment contract was actually terminated pursuant to that clause.
  4. I note, however, that the Defendant actually paid the Defendant monies some 20 months after the termination of his contract. In this respect evidence was given by Ms Lydia Tunian in her affidavit filed 21 October 2020, as follows:
    1. Although the Plaintiff was not entitled to notice pay and or otherwise, to avoid unnecessary litigation and wastage of time and also under a mistaken belief that the Plaintiff was entitled to, the Defendant paid the Plaintiff K9,388.64 as his final entitlements on 29 July 2015.
  5. This evidence of Ms Tunian was not challenged by any evidence to the contrary, and Ms Tunian was not called for cross-examination. In my view this evidence of Ms Tunian is entirely credible, in that it is certainly not unknown in litigation for a defendant to pay monies to a (in the defendant’s eyes, undeserving) plaintiff simply to avoid the prospect of future litigation.

(3) Length of time which expired before payments were made by Defendant on 29 July 2015


  1. At the hearing Counsel for the Plaintiff submitted that, because the Plaintiff was terminated pursuant to cl 8.1(b) of the Executive Service Contract, that clause required the Defendant to pay the Plaintiff his entitlements either three months or six months after termination, and the failure of the Defendant to do so meant that the Plaintiff’s employment contract was not lawfully terminated until his final entitlements were paid on 29 July 2015.
  2. I do not accept this submission.
  3. First, for reasons I have already given, I am satisfied that the Plaintiff’s employment was terminated pursuant to cl 8.2, not cl 8.1(b) of the Executive Service Contract.
  4. Second, even if cl 8.1(b) applied and the Plaintiff was entitled to payments by way notice (which I am satisfied is not the case), the periods of three months and six months in that clause referred to the amount of salary and other benefits which would be payable to the relevant employee, not to define the period of time in which the salary and other benefits were required to be paid. Rather, as a general principle, such entitlements are to be paid within a reasonable time: Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 2) [1975] PNGLR 195.
  5. Third, in circumstances where the Defendant terminated its contract with the Plaintiff on 14 November 2013, it is not open to the Plaintiff to claim that the contract somehow remained “on foot” until the Plaintiff was ultimately paid monies by the Defendant on 29 July 2015 such that he was entitled to payment of the amount of his salary until that date. If the conduct of the Defendant in terminating the Plaintiff’s employment was in breach of the Executive Service Contract (which, I am satisfied, it was not), the Plaintiff would be entitled to damages for loss caused by the breach, being loss flowing from the termination of the contract : see for example Hartshorn J in Common Constructions Ltd v TSC Contractors (PNG) Ltd [2017] N6681 at [10]; see also Diplock LJ in Hong Kong Fir Shipping Co, Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7; [1962] 2 QB 26. This issue is, however, moot.

(4) The Defendant breached the appeals process set out at page 18-5 of the General Policies & Regulations Handbook of New Britain Palm Oil Ltd


  1. The Plaintiff urged the Court to find that the provisions of the General Policies & Regulations Handbook of New Britain Palm Oil Ltd were part of the Executive Service Contract of the Plaintiff. In particular, the Plaintiff submitted that the appeals process as set out at page 18-5 was impliedly incorporated into the employment contract, that the Defendant had accepted that this was the case, that the Defendant had failed to comply with its appeals process in terminating the employment of the Plaintiff, and that accordingly the Defendant was in breach of contract in respect of that termination.
  2. I do not accept this submission.
  3. First, as Mr Isaac for the Defendant submitted, the Plaintiff did not plead that the General Policies & Regulations Handbook of New Britain Palm Oil Ltd was part of the Executive Service Contract of the Plaintiff. In paras 3 and 4 of the Amended Statement of Claim the Plaintiff pleaded:
    1. On 19 January 2009, the Plaintiff entered into an Executive Service Contract (hereinafter referred to as the ‘Contract’) with the Defendant on the position as Assistant Plantation Manager to manage one of the Defendant’s oil palm plantations and at the material time the Plaintiff was based at Bebere Plantation, Mosa Group of plantations just outside of Kimbe Town.
    2. On 14 November 2013, the Plaintiff was terminated by the Defendant without any reasonable excuse or fact thereby establishing any guilt against the Plaintiff on the allegation by the Defendant and terminated his contract on the said date.
  4. Contrary to the submission of Counsel for the Plaintiff, I am not persuaded that either para 3 or para 4 of the Amended Statement of Claim impliedly plead that the General Policies & Regulations Handbook of New Britain Palm Oil Ltd was part of the Executive Service Contract of the Plaintiff.
  5. It follows that I am not satisfied that the Plaintiff has pleaded that the appeals process as set out at page 18-5 of the General Policies & Regulations Handbook of New Britain Palm Oil Ltd was impliedly incorporated into the contract. It follows that this is not a justiciable issue in these proceedings.
  6. Second, and further, I am not satisfied that the Defendant accepted that the terms of the General Policies & Regulations Handbook of New Britain Palm Oil Ltd were part of the Plaintiff’s employment contract. The Plaintiff referred to the affidavit of Ms Lydia Tunian filed 21 October 2020 para 8 where Ms Tunian deposed:
    1. The Plaintiff’s terms of employment were further supplemented by the Defendant’s General Policies and Regulations Handbook (GPRH).
  7. However, as matters stand:
17.4 This Contract constitutes the whole agreement between the parties and supersedes any previous agreements relating to the subject matter.

As the Supreme Court explained in Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] SC694:

Under contract law, where parties have set down the whole of their agreement in writing, evidence seeking to add or subtract from or vary or qualify the written contract can not be given and or accepted. This is what is called the parol evidence rule. For authorities on this, see Curtain Bros (QLD) Pty Ltd v. The State [1993] PNGLR 285; Goss v. Nugent [1833] 5 B& Ad.54; Gillespie Bros & Co. v. Cheney, Eggar & Co [1896] 2Q.B.59; Edwards v. O’Connor [1991] 2 N.Z.L.R 542. It is a rule that does have exceptions to it. It is open to parties to assert that a written contract or document does or does not contain the whole of an agreement and at trial adduce evidence to support the contention. But that will require appropriate pleadings and not supplied as in this case.
  1. Third, in any event the Appeal Procedure as set out at page 18-5 of the General Policies & Regulations Handbook of New Britain Palm Oil Ltd contemplated that a person in the position of the Plaintiff would have one internal appeal from a termination decision, and that that appeal was available to the Managing Director. The Plaintiff gave evidence that his “first Appeal” was lodged by him on 15 November 2013 in the form of a grievance letter to the General Manager of the Defendant, followed by subsequent appeals by him to the Human Resources Manager and the Chief Executive Officer. The Plaintiff also gave evidence that the hearing of his appeal was apparently conducted on 18 November 2013 without him being given proper notice. Notwithstanding possible irregularities in relation to the conduct of the internal appeal, the belief of the Plaintiff that he was entitled to multiple appeals for the termination of his employment appears misconceived. In any event, for reasons I have already given, this is not an issue in respect of which relief is available to the Plaintiff.


CONCLUSION


  1. The Plaintiff claimed that the Defendant knowingly breached cl 8.1(b) of the contract, and that as a result the Plaintiff suffered loss and damage which he quantified by reference to such issues as his family expenses and his repatriation to his place of recruitment at Popondetta. This claim is not substantiated.
  2. I note that the Plaintiff asserts that he was not accorded natural justice in respect of the decision of the Defendant to terminate his contract of employment. This is a theme to which his Counsel repeatedly sought to return at the hearing. However, the evidence establishes, rather, that the Defendant actually acted in accordance with its contractual rights in terminating the Plaintiff, including in respect of the requirement that the Plaintiff evict his company-supplied residence and the provision of the means to repatriate the Plaintiff and his family to Popondetta. It further appears that the Plaintiff was accorded the opportunity to refute allegations of misconduct made against him but that the Plaintiff failed to engage with the Defendant in its decision-making process.
  3. I also note that, to the extent that the Plaintiff sought to rely on the decision of the National Court in Kala v New Britain Palm Oil Limited [2007] N3125, that case is not good law in light of such Supreme Court authorities as New Britain Oil Palm Ltd v Sukuramu [2008] SC946.
  4. The appropriate order is to dismiss the proceedings.
  5. The Defendant’s costs of and incidental to the proceedings are to be paid by the Plaintiff, to be taxed if not otherwise agreed.

99. The Court orders that:


  1. The Amended Writ of Summons and Amended Statement of Claim filed on 24 July 2020 be dismissed.
  2. The Plaintiff pay the costs of the Defendant of and incidental to the proceedings, such costs to be taxed if not otherwise agreed.

____________________________________________________________________
Mokae Lawyers: Lawyers for the Plaintiff
Emmanuel Lawyers: Lawyers for the Defendant

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