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Ekieva v Snowball [2005] PGDC 19; DC132 (26 August 2005)

DC132
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CASE No 30 OF 2005

BAFO EKIEVA

AND

BASIL SNOWBALL

First Defendant

MARK CUNNINGHAM
Second Defendant

LAE YACHT CLUB INCORPORATED

Third Defendant

Lae

M M Pupaka
26 August 2005

Civil proceedings - Claim for 'unlawful demotion' and damages for mental distress - Demotion followed by dismissal - Demotion allegedly in retaliation for complaints raised against the 1st defendant and dismissal seemingly in retaliation for legal proceedings challenging the demotion - Claim only for loss of salary as a result of demotion and damages for distress etc - Issues for litigation not amended to reflect dismissal from employment.

Civil proceedings - Claim for 'unlawful demotion' - Claim not based on dismissal -Claim for dismissal and entitlement better cause of action - Claim for 'demotion' can only be for the period between time of demotion and date of dismissal - Claim for distress and frustration etc many be warranted only in exceptional circumstances (as employment and employer /employee relationships are determinable at the pleasure of the former by virtue of the 'right to hire & fire' but provided due notices or payment in lieu are safely rendered in accordance with law)

Counsel
Mr. S. Daniels for the Complainant
Ms L Tunian for the Defendant

26 August 2005

M. M. PUPAKA: The brief nature of the complainant's case as outline by the Summons & Summons upon Complaint is this.

On or around 14th December 2004 the complainant and some other employees of the 3rd defendant decided to write to the 3rd defendant's management, essentially complaining about the 1st defendant's activities, which activities they opined were contrary to the interests of the 3rd defendant. Now this seemingly noble intention of the complainant and his friends apparently backfired, for the complainant says he was "suddenly demoted" from his then Bar Supervisor's position. That was on 01/02/05. Whereas previously he was receiving K4.00 per hour, from 01/02/05 onwards he was paid K2.20 per hour. He alleges that this 'demotion' was effected as a result of the pivotal role he played in complaining against the 1st defendant. Thereafter, on the 18th of April 2005, whilst the complainant was in the process of suing the defendants for losses suffered as a result of his 'demotion', he was fired - without any notice or reasons.

Consequently he now sues for the initial 'unlawful demotion', which he estimates at K2, 000.00 and he also seeks damages for mental distress which he considers adequate at around K7, 000.00.

There is no pleading on how the complainant computed or arrived at the K2, 000.00. How many hours are included in the K2, 000.00 is not disclosed in the pleadings.

On the other hand the formal defence filed only merely says that the 1st and 2nd defendants are employees of the 3rd defendant and so they should not be included as parties at all. It also says since no cause of action is disclosed against the 3rd defendant the proceeding ought to be struck out. I would have thought the defendants could have done better than that and I said so at the call-over.

Therefore both parties were directed to file particulars to clarify their respective positions by the mention date (22/08/05).

However on the 22nd of August both counsels requested that the matter be stood down for them to decide just how best they could progress further with their respective cases. They said they would advise the Court as to their stances during the course of this circuit.

Counsel have now agreed that the matter be struck out with directions, as they consider it not appropriate to proceed to trial on the strength of the current pleadings and defence.

I must say the complainant ought to have sued on the bases of his dismissal. He could sue for any outstanding and unpaid entitlements together with other regular terminal benefits. He could also include a claim for lack of due notice if he was never served any such, provided of course that all these have not been paid to him. Further there is nothing preventing the complainant from claiming compensation for 'unlawful' dismissal and mental distress though I might add that obtaining these sorts of relief in a casual employment situation is a hard roe to hoe.

Nevertheless both counsels have accepted that there is much need for improvement and have agreed that the proceedings be struck out without any penalty and the Court grant leave for the complainant to reissue properly drafted proceedings seeking regular relief. For this Court's part I can only agree to the appropriateness of counsels' stance. It is in the interest of all concerned that fresh proceedings with proper pleadings be issued. As I indicated at the call-over there is always room for a negotiated settlement once the issues are clear. Consequently I order as follows:

Court Order

1. This entire proceeding is struck out with leave for the complainant to reissue fresh proceeding.
   
2. Costs of this proceeding shall become costs in the fresh proceeding, but in the event that the complainant fails to reissue fresh proceedings within a reasonable time he shall meet the defendants' costs of this instant proceeding; the same to be taxed if not agreed.
   

So ruled and ordered under my hand this 26th day of August 2005.

M M Pupaka
Principal Magistrate