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Malai v PNG Teachers Association [1992] PGSC 8; [1992] PNGLR 568 (30 July 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 568 - Jimmy Malai v PNG Teachers Association�

[1992] PNGLR 568

SC431

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JIMMY MALAI

V

PAPUA NEW GUINEA TEACHERS ASSOCIATION

Waigani

Woods Hinchliffe Konilio JJ

25 May 1992

30 July 1992

MASTER AND SERVANT - Dismissal - Construction of terms of the contract of employment - No contract of employment - Terms of employment and requirement for notice of termination of the contract of employment no better than those under Employment Act Ch 373.

MASTER AND SERVANT - Dismissal - In the absence of any statutory provision or a rule of an association providing for manner of dismissal, the rule of dismissal at will applies.

MASTER AND SERVANT - Dismissal - Applicability of the principles of natural justice and fairness.

Facts

The appellant was a teacher by profession who then, in 1982, took up employment with the defendant, which was his professional association, as a regional secretary. In 1986, the appellant was not re-appointed to the position but was retained by the defendant in another position. Then, in April 1987, the defendant terminated his services on the grounds that neither his reappointment nor his redeployment in the association was necessarily required.

Appellant then unsuccessfully challenged his dismissal in the National Court. The Court found and ruled that there was no evidence of any statutory right or condition of employment which would affect the common law right in a master to terminate his employee and, therefore, the appellant's employment was at the will of the defendant, who acted to terminate his employment for reasons of excess to organisational structural requirement.

Held

N1>1.������ The National Court's finding that the appellant failed to show any rule of the association that would give rise to a right of hearing on termination and, therefore, could be terminated at any time and for any reason, or for none, is upheld.

N1>2.������ "Once it is realised that this was a simple employer-employee relationship with no statutory or contractual right, the common law principle of the right to hire and fire applies and the terms and conditions of employment were no better nor more favourable than those set out in the Employment Act Ch 373".

N1>3.������ "Any suggestion of a duty to act fairly and any rights under the Constitution to natural justice only go so far here as to whether he was terminated with proper notice, such as that required under the Employment Act Ch 373, namely, on two week's or a month's notice, depending on the basis of his salary payment in the absence of any contractual arrangement which provided otherwise".

N1>4.������ Appeal dismissed.

Cases cited

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.

Counsel

D Liosi, for the appellant.

E Stylianou, for the respondent.

30 July 1992

WOODS HINCHLIFFE KONILIO JJ: The appellant, Mr Malai, is appealing against the judgment of the National Court dismissing his claim for damages for unfair dismissal from employment by the PNG Teachers Association (hereafter Association).

The history of this matter is that the appellant was a teacher who in 1982 took up a position with the defendant, his professional association, as a regional secretary. Whilst it is not clear on the evidence, it would appear that he had stepped aside from his position in the Education Department as a teacher to work for his professional association by means of leave without pay. He served as an employee of the Association from 1982 until 1987, for almost all of that time as regional secretary, Momase Region, although the position was re-advertised each time the Association had its biannual congress. Following the re-advertising of the position in 1986 for the next term of the Association, the appellant was not reappointed for the position of regional secretary. However, he was retained in another position by the Association just to keep him employed for a while. Then, in April 1987, the Association decided to terminate him as his reappointment or redeployment in the Association was not required.

The appellant made a claim against the Association for unfair dismissal and claimed damages, including loss of earnings and entitlements for 11 months. The claim was heard in April 1991 by the National Court, which found that there was no evidence of any statutory right or condition of employment which would affect the common law right in a master to terminate his employee. The appellant's services as an acting research officer were at the will of the management committee, which had acted to terminate him as being in excess to organisational structural requirements. The National Court dismissed the claim.

The appellant has appealed that His Honour the trial Judge erred in law in deciding:

N2>1)������ the Association had the right to terminate the employment of the appellant for any reason or none, and

N2>2)������ the appellant had no right to be heard on termination.

It has been submitted that the appellant was denied the right to be given adequate notice and an opportunity to be heard on his termination. The Court was referred to the case of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 for the principles enunciated in cases of termination of employment. Whilst the case identified 3 classes of dismissal from employment, it is submitted that the trial judge erred in categorising the appellant as falling within the first category of dismissal of a servant by his master. His Honour had found that the appellant failed to show any rule of the Association that would give rise to a right of hearing on termination and, therefore, he could be terminated at any time and for any reason or none. Counsel for the appellant, in challenging that, says firstly that the appellant is a teacher by profession and, therefore, is an employee of the State who was at all times governed by the terms of the Public Services (Management) Act. That act and its regulations provide a very elaborate and detailed procedure which allows for natural justice principles and fair hearing to be accorded to an employee before he is dismissed. However, on the evidence before the Court, this submission is clearly wrong. The appellant may have been a teacher by profession, but when he commenced working for the Association, he was no longer an employee of the State. Whilst the Court did query what his status with the Education Department was, it was quite clear that, for the purpose of this case, such status was not really relevant. It appears his status may have been as being on leave without pay. The point is, he was working for an organisation or employer other than the State, namely the PNG Teachers Association. Therefore, the appellant was employed under the constitution of the Association or by some arrangement for a contract or according to some terms and conditions.

Looking at these, we find under the constitution of the Association a provision in rule 33 for other Employees: "The Association shall employ other persons as it deems reasonable for the proper function and administration of the Association".

The management committee of the Association in 1983 approved an instrument called Conditions of Employment for all staff employed by the Association. However, whilst the instrument talks about how salaries are to be aligned to Education Department salaries, and what allowances can be provided for, and how leave is allowed and calculated, and even how disciplinary offences are to be dealt with, the instrument has no provision covering any permanency of employment or how ordinary termination is to be effected. There was no contract of employment between the Association and the appellant, merely an employment in the terms of rule 33 of the constitution: "as it deems reasonable for the proper function and administration of the Association".

This is highlighted by the history of the appellant's employment with the Association, namely, that his original job was advertised every 2 years prior to the biannual congress and that, each time, he had to re-apply for his position as regional secretary. And following his unsuccessful re-application for the position in 1986, it was quite clear, and he appeared to accept, that he had no permanency of employment in that position.

Thus, once it is realised that this was a simple employer-employee relationship with no statutory or contractual right, the common law principle of the right to hire and fire applies and the terms and conditions of employment were no better nor more favourable than those set out in the Employment Act Ch 373. On the evidence, it was clear that the Association had the right to employ as requirements dictated. The appellant had lost his position as regional secretary in the normal course of the Association's operation and had been moved to another temporary position pending a consideration of whether he was needed. Once it was realised that he was surplus to requirements, he was properly terminated with an appropriate notice from his temporary employment. The simple fact was that, once he had lost his position as regional secretary following the normal re-advertising, there was no position for him in the Association, so he had no employment with the Association nor any right to any employment with it.

This would appear to be the correct basis for the trial judge's findings.

The appellant refers to a suggestion that there was some detrimental report which was prepared on him. However this was not made public, and his termination was not done for disciplinary reasons during what may clearly have been a 2-year appointment as regional secretary. His termination was done purely on the basis of being surplus to requirements following his non-selection for the substantial position he had held before.

Any suggestions of a duty to act fairly and any rights under the Constitution to natural justice only go so far here as to whether he was terminated with proper notice such as that required under the Employment Act Ch 373, namely on 2 weeks' or a month's notice, depending on the basis of his salary payments in the absence of any contractual arrangement which provided otherwise.

We find no errors in the trial judge's findings. We dismiss the appeal.

Lawyer for appellant: Public Solicitor.

Lawyer for respondent: Warner Shand.