DC605

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 51 of 2006
&
GFCi 52 of 2006

BETWEEN

LENA JOHN
Complainant

AND

MARK KLEEMAN
BIRD OF PARADISE HOTEL
CORAL SEE HOTEL LTD
Defendants

AND

BETWEEN

ANGELA MICHAEL
Complainant

AND

MARK KLEEMAN
BIRD OF PARADISE HOTEL
CORAL SEE HOTEL LTD
Defendants
 
Goroka: M Gauli, PM
2007: June 27, July 25, August 06

CIVIL - Claims damages for unlawful termination – Termination lawful – Damages not proven – Payment in lieu of notice paid in full – Payment accepted – Joinder of cases. 

Cases Cited
1. AGC (Pacific) Ltd –v- Sir Albert Kipalan & Ors, N1944 (Unreported)
2. Brown –v- Dunn (1894) 6R. 67HL
3. Reidge –v- Baldwin [1964] PNGLR 40
4. Steamships Trading Co. –v- Joel [1991] PNGLR 133
5. Jimmy Malai –v- PNG Teachers Association [1992] PNGLR 571
6. Paddy Fagon –v- Negiso Distributors Pty Ltd N1900 (Unreported)
7. Roger Lennox Wilson –v- I.T.S Services Corporation; The Lotto Pty Ltd [1998] PNGLR 110
8. Robinson –v- National Airlines Commission [1992] PNGLR 476
9. Hohore Suve –v- Ken Bromley & The RDB of PNG, N1589 (Unreported)

References
1. Employment Act, Ch. 373, Ss. 33 – 36.

Counsel
For the Complainant	- Mr. Brian Koningi of Koningi Lawyers
For the Defendants	- Mr. J. Paya standing in for Dorris Gedare, the Legal Officer for the Steamships Ltd.

06 August 2007

JUDGMENT

M Gauli, PM: The Complainants Lena John and Angela Michael claimed against the defendants Mark Kleeman, Bird of Paradise Hotel and the Coral Sea Hotel Limited for unlawful termination from their employment on or about the 02 of August 2004 in Goroka. The Complainants filed separate complaints and each claimed a sum of K10, 000.00 from the defendants. The Complainants are the former employees of the second Defendant the Bird of Paradise Hotel. They claimed to have been unlawfully terminated by the Management of the Second Defendant including the First Defendant Mr. Mark Kleeman.

2. Both causes of actions are heard together because the nature of the complaints and the defendants been sued are the same. Also the complainants are the former employees of the same company and they were both terminated on the same date. The District Courts Act is silent on the joinder of the causes of actions in civil proceedings. However in all cases of joinder, whether it is for the parties or for the causes of actions, the Court has the discretion to join if the interest of the justice requires it – AGC (Pacific) Ltd –v- Sir Albert Kipalan & Ors, N1944 (Unreported) referred.

3. By consent of the counsels of all the parties the trail is conducted by affidavit evidence. The counsels to provide their written submissions by 25 July 2007 before Court makes its decision on the 06 August. So far I have received the submission for the defendants counsel. No submissions have been received from the counsel for the complainants.

4. The undisputed facts are as follows. The complainants Lena John and Angela Michael were both employed by the Bird of Paradise Hotel in Goroka, which is one of the Coral Sea Hotels owned by the Steamships Limited. The Complainants have been employed by the Second Defendant for 14 years since 1990 as house keepers until their termination on the 02 of August 2004. The First Defendant Mr. Mark Kleeman is the employee of the Coral Sea Hotels. He was the former manager of the Bird of Paradise Hotel in Goroka. He terminated the Complainants on the 02 August 2004. Upon termination, the Defendants paid the Complainants their full entitlements. The amounts not disclosed.

5. The only disputed fact is the grounds for termination. The Complainants claim that they were unlawfully terminated. The Defendants contested that their termination was lawful.

6. Issues

Based on the disputed fact, there are two issues this Court is to determine:

i.	Whether or not the Complainants were unlawfully terminated.
ii.	Whether the Complainants are entitled to the damages they claim.

7. Issue No 1: Whether or not the Complainants were unlawfully terminated.

The Complainants Lena John and Angela Michael have no witnesses apart from themselves. They rely on their own sworn affidavits. The Defendants rely on the sworn affidavits of the defendant Mark Kleeman and the witnesses Colin Burdett and Rose Ketau.

8. The evidence of the Complainants Lena John and Angela Michael are same in content. They claim that they were unfairly and unlawfully terminated. Their work mainly involved cleaning, arranging and setting of the Hotel rooms. The Hotel sets very high standards and pride in its well kept and arranged rooms for the guests. And the Complainants tried their best to uphold the Hotels high expectations required of them. And they have performed their duties well and were given permanent employment at the Hotel until their unfair termination on the 02 of August 2004.

9. In denying the complaints of unlawful and unfair terminations, the defendants say that the termination of complainants were lawful and fair. The witness Mr. Colin Burdett, the Manager of the Coral Sea Hotels owned by Steamships Limited is based at the Highlander Hotel in Mt. Hagen, Western Highlands Province. He gave evidence that on or about 19 July 2004, he made room checks with Rose Ketau, the Head Housekeeper. They found in the rooms allocated to the Complainants Lena John and Angela Michael were not satisfactorily cleaned in that there were dirty grimy shower walls, dirty hand basins and dirty toilet bowls. He then issued the warning letters to both complainants that he will return in two weeks time for another inspection and he expected the rooms to be clean. On or about the 02 of August 2004 he made another inspection. He found the rooms 104, 107, 205, 207, 209 and 210 assigned to Lena John and Angela Michael had not improved at all. The conditions of these rooms were the same as on the 19 July 2004. He then called a general meeting with the housekeeping staff and the senior management to explain how important it was to have clean rooms and bathrooms. He then gave Lena and Angela warning letters to sign but both refused to sign and walked out of the office with no further comments. The Complainants failed to return to sign and apologise, so they were terminated. 

10. First Defendant Mark Kleeman gave evidence of the event that took place on the 02 of August 2004. He only confirmed the evidence of the witness Colin Burdett regarding the meeting conducted by Mr. C. Burdett with the house keeping staff and the senior management of the Hotel. Mr. Burdett gave the Complainants Lena and Angela the warning letters to sign but both refused and walked away. They were told to come back and sign but both failed to do so. As a result they were terminated. Their entitlements were fully paid and Lena and Angela have made no complaints of their final entitlement payments nor refused to accept the payments made to them.

11. The witness Rose Ketau, the employee of the Bird of Paradise Hotel in Goroka is a Head Housekeeper. Both Lena and Angela come directly under her supervision. On 02 of August 2004, Rose accompanied Mr. C. Burdett and inspected the rooms assigned to Lena and Angela. Those rooms were still found to be unclean. She confirmed the evidence of Mr. C. Burdett of the Complainants failure to sign the warning letter. This resulted in their termination which she claimed was lawful.

12. The Defendants in their Statement of Defence filed on 02 November 2006, particularly in paragraphs 6, 7 & 8 stated the grounds for their termination, which reasons are given by the witnesses as explained above. The Complainants in their affidavits, evidence never disputed the reasons of their terminations as contained in the defendants evidence. The Statement of Defence gave the Complainants Lena and Angela the opportunity to either confirm or deny the allegations the Defendant put to them in Paragraphs 6, 7 & 8 of the statement of defence. The Complainants failed to deny those claims. The rule in Brown –v- Dunn [1894] 6R 67 HL applied here. The rule in Brown –v- Dunn is that the defendant must disclose his case to the prosecution (or the complainant) at the commencement of the trial, that is at the time the evidence for the prosecution or the complainant is given. However I am of the view that the rule in Brown –v- Dunn should also apply in the pleading process. The defendant need to disclose his defences to the Complainant during the pleadings to given the complainant the opportunity to either confirm or deny the defences raised. I am satisfied that the defendants in the present proceedings have put their defences to the complainants. But the Complainants failed to response to the statement of defence in respect of paragraphs 6, 7 and 8 of the Statement of Defence. They also failed to provide evidence to that effect in their sworn affidavit evidences. And so I find the defendant’s evidence established that the Complainant were terminated because they defied orders or instructions given by those in the position of authority for the Defendants. This has not been discredited by the Complainants.

13. The Counsel for the Defendants submitted that the Complainants were lawfully terminated because of their wrongful conduct by not returning to sign the warning notices after they were told to improve on their work performances. I do agree with the counsel’s submission.

14. The relationship between the Complainants and the defendants is one of employee and employer relationship. And in the instances of terminating the employee, the law applicable is the Employment Act, Chapter 373. And the relevant provisions are the Sections 33, 34, 35 and 36. The Section 33 refers to the termination of a contract. Under Subsection (2) of Section 33, a contract of service that does not have a specific period of a contract is deemed to continue until it is terminated by either of the contracting parties. The Section 34 requires a notice of termination to be given to the other party. And Subsection (4) of Section 34 sets out the length of time required for that notice. In the present case the Complainants were employed for over five (5) years, they would have been given four (4) weeks notice of the defendant’s intention to terminate their employment. By the provision of Section 34 (4) of the Act it would be said that the terminations of the Complainants from their employment was unlawful. 

15. However Section 35 of the Act allows the employer to terminate the employee’s contract of services without notice. And the Section 36 of the Act spells out the grounds for termination which do not require notice to be given or payment instead of notice. These grounds includes: (a) willful disobedience to lawful and reasonable orders; (b) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; (c) guilty of fraud or dishonesty; (d) habitually neglectful of his duties. In the present case, apart from the grounds (c), the grounds (a), (b) and (d) are present. The complainants were both neglectful and disobedient in the performance of their duties. And so I find that by the provisions of Section 35 and Section 36 of the Act their termination was lawful and that the defendants a protected if they failed to give Section 34 notice.

16. It is well established in Papua New Guinea that the common law principle of the employer’s right to hire and fire applies here. This common law principle, found in Reidge –v- Baldwin [1964] AC 40 had been applied in our jurisdiction in many cases including Steamships Trading Co. –v-Joel [1991] PNGLR 133 and Jimmy Malai –v- PNG Teachers Association [1992] PNGLR 571. It was held in these cases that: The common law principle that an employer may terminate the services of an employee at will applies in PNG subject to the requirement of notice or payment in lieu of notice contained in the Employment Act”. And at common law the employer is not required to give reasons for his decision to terminate an employee. That is the employer’s unfettered discretion which the common law respects – refer to the case of Paddy Fagon –v- Negiso Distributors Pty Ltd N1900 WS No. 589 of 1995 (Unreported).

17. In the present I find that the Complainants Lena and Angela have failed to perform their duties to the standard expected of them. They were told to clean up the greasy stains in a certain room of the hotel within two weeks, and they failed to obey such orders or instruction. They were both asked to sign the warning notices but refused to sign and walked away. The employer is not going to keep the employee who shows disrespect to the employer. I find that the termination of the complainants Lena and Angela were executed lawfully.

18. Issue No. 2: Whether or not the Complainants are entitled to the damages.

The Complainants are claiming K10, 000.00 each in damages for unlawful termination. I have ruled above that their termination was lawful. The Complainants did not stated clearly the reason for their claim of K10, 000.00. Is this for their unpaid entitlement or for distress, discomforts or pains they suffered as the result of their termination. They have not pleaded this in any particular clarity. The defendants evidence is that the complainants were paid in full all their entitlements. This has not been disputed by the Complainants. And so I am satisfied that the Complainants were paid all their entitlements in lieu of notice. Thus the Section 34 (4) notice is not necessary here.

19. The Complainants claim that they have suffered losses and damages. They gave no evidence of the losses and damages they claim to have suffered to justify their claim of K10, 000.00. There is no evidence that the Complainants have suffered distress as a result of their terminations. Damages for distress can be awarded where there is evidence establishing distress, as per the case of Rogger Lennox Wilson –v- I.T.S Services Corporation; the Lotto Pty Ltd [1998] PNGLR 110. In claiming damages for unlawful termination of employment, the Complainant must not only plead but must prove by evidence that he has suffered pecuniary losses and the wages for the period of proper notice. The cases of Robinson –v- National Airlines Commission [1983] PNGLR 476 and Apa –v- Wama & Ors [1992] PNGLR 395 referred. The Complainants have failed to establish any losses they may have suffered. 

20. The Counsel for the defendants referred to a case of Hohore Suve –v- Ken Bromly & The RDB of PNG, N 1589 (Unreported). In that case Justice Sevua found that the plaintiff had consented to his retrenchment and he further undertook that he will not make any claims for wrongful termination. The Court held that the plaintiff is estopped from claiming wrongful termination in that the termination did not constitute wrongful termination. This case involves retrenchment and not termination therefore it is not relevant to the present case now before me. However the only relevancy in there is the acceptance of the final entitlements on his retrenchment. Once the entitlements are accepted he is estopped from making a claim of wrongful termination. 

21. In our present case the Complainants have accepted and receive their entitlements which were paid in full. The complainants never disputed this evidence. Where the Complainant has accepted the full payment of his entitlement without any dispute, he would be estopped from making claims for wrongful termination. If he is not satisfied with the payment made in lieu of notice he must refuse to accept the payment. The onus is on the Complainant to precisely and specifically put his claim and plead them. It is insufficient for one to claim damages just because he believes that he was unlawfully terminated without pleading and proving his claims by evidence. I find that the complainants were lawfully terminated and were each paid their payment in lieu of notice. The complainants have failed to prove their claims before this Court. And I make an order that the cases be dismissed with costs for the defendants .

Lawyer for the Complainant – Mr. Brian Koningi of Koningi Lawyers
Lawyer for the Defendants – Mr. J. Paya