[1997] PNGLR 635

PAPUA NEW GUINEA

[national court of justice]

KEVIN PATAI

v

NIUGINI LUMBER MERCHANTS PTY LTD & OTHER

waigani: sawong j
6 May, 11 August 1997

Contract of Employment - Damages, Assessment of damages for wrongful dismissal

Facts

This was an action for wrongful termination of an employment contract. The plaintiff claimed that he was unlawfully terminated from his contract of employment with the defendants. He produced evidence to establish his terms and condition and level of remuneration he enjoyed. The defendants denied that they employed the plaintiff.

Held

1.	In an action for wrongful and unlawful termination of employment where liability has been determined and the only issue remaining to be dealt with is the assessment of damages, it is not sufficient for the defendant to simply deny that the plaintiff was its former employee. The defendant must also provide evidence negating the plaintiff’s claim regarding his terms and conditions and the remuneration received.

Counsels

D K Yala, for the plaintiff.
R Nonggorr, for the defendants.

11 August 1997

Sawong J. This was a trial for assessment of damages, default judgement having been entered against the defendants.

Both sides called one witness each. The plaintiff’s evidence was that the first defendant under a contract of employment employed him. There is no issue as to whether the plaintiff was in fact employed by the first defendant through the second defendant. The only issue is how much is the plaintiff entitled for the wrongful and unlawful termination of his employment.

The plaintiff says that the defendants on or about 23 October 1993 under a contract of employment employed him. Parts of his terms and conditions of employment are contained in the document marked "Exhibit P1." It is not necessary to set out the contents of that document because they are not really relevant. The plaintiff says his terms and conditions were subsequently changed between him and the defendants in February 1994. These were agreed to between the parties.

The varied terms and conditions of employment as agreed to between the parties, was that he was to receive a salary of K500.00 per fortnight, housing allowance of K820.00 per month, and the sum of K2,000.00 per month being project fee.

In his pleadings, he says that the amended terms and conditions of his employment contract were partly oral and partly in writing. So far as it was in writing, it was alleged to be contained in a letter dated 27 February 1994 to the plaintiff. This letter was never produced as evidence. And so I do not know what it contains.

In his submissions, Mr Nonggorr for the defendants has raised several matters. First, he submits that the defendants never employed the plaintiff. He submitted that there was no contract of employment between the parties and that there was no breach. It followed, he submitted that, the plaintiff did not suffer any loss damage.

In my judgements, this submission is moot. It is moot because the fact remains that there exist a judgement against the defendants. In other words, the question of liability is not an issue, it having been determined already. Put it in another way, in my judgement, there has already been a judgement against the defendants, the effect of which, inter alia, is that the defendants were held liable to pay to the plaintiff damages. The only issue is one of assessment of damages.

Insofar as that issue is concerned, Mr Nonggorr submits in essence that the plaintiff has not proved that he has suffered any loss. He submitted that the plaintiff has not produced any evidence of the terms and conditions of his employment, for example, pay slips etc. The plaintiff has also not produced a crucial document, namely the letter of 27 February 1994, which he says allegedly contained his terms and conditions of employment.

In summary, Mr Nonggorr submits that, apart from the oral evidence given by the plaintiff, he has produced no corroborative documentary evidence to support his evidence.

The witness for the defendants, Mr Singh, gave evidence denying that Mr Patai had even been employed by the defendants. He gave no evidence disputing the evidence by the plaintiff regarding his terms and conditions, and the remuneration he received. I consider Singh’s evidence to be less than credible. In my view, Mr Singh was selective in his evidence, he neither wished to nor tells the truth about this matter.

I therefore give little weight and credibility to Mr Singh’s testimony. I consider that, despite Mr Nonggorr’s criticism of the lack of corroborative documentary evidence supporting the plaintiff’s oral evidence, the plaintiff’s evidence in the main has not been destroyed or discredited in any substantial manner. I consider that the plaintiff’s evidence of the terms and conditions of his employment were not destroyed. Consequently, on the balance of probabilities, I consider that the plaintiff has established or proved his loss.

Despite the lack of corroborative evidence, I accept the plaintiff’s evidence on the terms and conditions of his employment. In other words, I accept his evidence regarding loss of salary and the project fee. I also accept his evidence regarding the costs of repatriation fares for him and his family from Port Moresby to Kavieng.

I find, therefore, that the plaintiff is entitled to the following monies:-

1.	Loss of Salary from 30 June 1995 to date of trial (6.5.97)

	K24,000.00 

Interest at 4%	K 960.00

		K24,960.00

2.	Loss of project fee 30 June to date of trial is	K46,000.00

I add interest on this amount at 4% which is	K 1,840.00

In so far as the claim for housing allowance, recreation leave and air travel is concern, I find that there is either no evidence or insufficient to grant those. Consequently, the claim for these is dismissed.

There is sufficient and credible evidence of costs of repatriation fees for the plaintiff and his family. This is accumulated to him in the sum of K2,376.00.

In summary, I award the following damages.

1.	Loss of Salary	K24,000.00

2.	Loss of Project fee	K46,000.00

	c)	Interest	K 2,800.00

	Total	K72,800.00

I give judgment for the total sum of K72,800.00. I direct that judgement be not entered for fourteen (14) days from today’s date. The parties may, during that time, apply to the court to vary the judgement to correct errors of calculation or errors of a similar kind.

If the parties are agreed that such an error has been made, it may be dealt with by the chamber order. Otherwise, the judgment shall take effect and may be entered at the end of that time.

Lawyers for the plaintiff: Mamando Lawyers.
Lawyers for the defendants: Warner Shand.