Unreported National Court Decisions
N712
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
W.S. NO. 895 OF 1987
BETWEEN:
DAVID KEITH LINZ
PLAINTIFF
AND:
POST AND TELECOMMUNICATION CORPORATION
DEFENDANT
Waigani
Konilio AJ
2 November 1988
4 November 1988
7 November 1988
Counsel:
Mr. Philip Payne for the Plaintiff.
Mr. Goodman for the Defendant.
KONILIO AJ:  On the 2nd of August, 1988 I gave judgment for the Plaintiff in this matter and indicated I would set out my reasons more fully at a later date:
The Plaintiff, David Linz, signed an Agreement on the 26th August, 1985 with the Defendant, Post & Telecommunication Corporation, whereby the Defendant agreed to employ and the Plaintiff agreed to serve the Defendant as an Engineer Class Three (3) for a term of three (3) years commencing on the same date and terminating on the 26th August, 1988.
On the 30th October, 1987 the Defendant dismissed the Plaintiff with immediate effect and refused to allow him to remain in his employ.
The Plaintiff claims at all material times he complied with the terms of the Agreement and that the dismissal was wrongful and in breach of the Agreement and as a result he has been deprived of the salary and other of the salary and other remunerative benefits payable to him pursuant to the Agreement that he would have otherwise earned and has thereby suffered loss and damages for wrongful dismissal together with costs and interests pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.
The Defendant on the other hand denies that the Plaintiff has at all material times complied with the terms of the Agreement and also denies that it wrongfully and in breach of the Agreement dismissed the Plaintiff. The Defendant also denies that the Plaintiff has been deprived of the salary and other remuneration benefits he claims. The Defendant says that the Plaintiff's contract of employment (the agreement referred to above) was terminated pursuant to the terms and conditions of the said contract and in particular Clause 10.3 thereof.
I will deal first with the question of whether the PTC Staff By Laws have been pleaded by the Plaintiff. The Defendant says the Plaintiff has not specifically pleaded the staff by laws and cannot now rely on them. The Plaintiff on the other hand says that he has in fact pleaded the Staff By laws in Clause 3 of his Statement of Claim and in any case the Defendant had not requested any particulars in respect of the Plaintiffs allegations in Clause 5 of the Statement of Claim. The Plaintiff says that had this been done it would have been made clear that the Plaintiff was in fact relying on the breach of the Staff By-Laws.
I consider that the PTC Staff By-Laws have been sufficiently pleaded by the Plaintiff in Clause 3 of the Statement of Claim. The wording of that Clause of the Statement of Claim is in my view quite clear. I also have no doubt that had the Defendant requested particulars in respect of the allegations in Clause 5 of the Statement of Claim the situation would have been made clearer by the Plaintiff. I rule that the Plaintiff can rely on the PTC Staff By-laws.
It is apparent that the Plaintiff was dismissed because of the three (3) allegations against him set out in the attachment to the Notice to Admit Authenticity of Documents marked "1" the allegations were that the Plaintiff did:
1.       On Sunday the 23rd August used a PTC vehicle to transport his family from Tapini to Port Moresby despite a previous warning against such misuse,
2.       On Saturday 19th spent time working on a private job while claiming 8 hours overtime for that day; and
3.       On or about 14th August misused an LPO to pay for machining of a flywheel which did not belong to PTC.
At the trial of this matter the second of the three (3) allegation against the Plaintiff was admitted by the Defendant to be false.
The first allegation against the Plaintiff referred to above is in my view in itself on the evidence before me, not sufficient to warrant dismissal.
The third allegation against the Plaintiff, the more serious one would in my view be sufficient to warrant dismissal if it was properly investigated proved, and the PTC Staff By Laws followed. The staff by-laws set out the manner and the procedure to be followed by the Defendant in dealing with disciplinary offences alleged against employees.
It would seem to me that before Clause 10.3 of the Agreement can be used by the Defendant to terminate employees it has to deal with employees in the manner set out in the Staff By-Laws to ensure that employees are properly dealt with.
In this case, on the evidence before me I consider that the alleged offence was not properly investigated and not properly proved against the Plaintiff. In addition the PTC Staff By-Laws have also not been complied with. By-law 22 (II)(d) which require that an employee is to be advised "that his union delegate or other party approved by the officer responsible may attend the interview and make representations and submissions on his behalf" was not complied with and also By-Law 25 was not complied with in that he was never advised that he could ask for a review of the decision to terminate him.
I find therefore that the Plaintiff was wrongfully dismissed and has thereby suffered damages.
The parties agreed at the conclusion of the trial that they will agree on the damages once I have decided on liability. Damages shall therefore be as agreed between the parties.
JUDGMENT ON QUANTUM OF DAMAGES
I gave judgment for the Plaintiff in this matter on the 2nd of August, 1988 and set out my reasons for the decision one week later.
The parties agreed at the conclusion of the trial that they will agree on the damages once I had decided on liability. The parties have, however, not been able to agree on the quantum of damages the Plaintiff is entitled to and it was necessary for the parties to come to court again.
I heard evidence from the Plaintiff on the 2nd November, 1988 and counsel have made submissions. The Defendant has agreed on some of the loss and damages claimed by the Plaintiff but has taken issue on some of the amounts claimed.
I will set out first the claims that are not in dispute.
1.       K5,376.08 for loss of wages for period 30th November 1987 to 25th March, 1988.
2.       K2,361.56 for loss of gratuity and superannuation for the same period.
3.       K2,764.82 for difference in salary between the PTC job and the CPL job during the period 20th March, 1988 to 26th August, 1988.
4.       K926.00 for first term school fees for 2 children.
5.       K224.00 for accommodation with the Country Women's Association from 20th to 25th March, 1988.
6.       K2,374.99 less 10 days for rental of a flat with Douglas Central.
Let me deal with this last item. It is apparent from Exhibit "D" that Douglas Central charges rent on a monthly basis at K758.33 a month and I think I can safely take judicial notice of the fact that in this kind of arrangements one normally pays the full monthly rental even though one may not live there the whole month. On my calculations the amount should infact be only K2,274.99 not K2,374.99. The Plaintiff would have been entitled to K2,274.99 but I have not allowed this in view of my decision in relation to rental allowance below. I have also disallowed the sum of K224.00 for accommodation with the Country Women's association for the same reason.
The other claims that are in dispute are as follows:
1.       K4,050.00 rental allowance for period 14/12/87 to 26/3/88.
2.       K58.50 telephone rental allowance for period 1/12/87 to 26/8/88.
3.       The sum of K1,279.00 for accommodation in Australia to obtain further work permits.
In relation to the rental allowance being claimed for the period 14th December, 1987 to 26th March, 1988 I have no doubt that the Plaintiff is entitled to this. The evidence is that the Plaintiff under the PTC By-Laws was entitled to the sum of K270 per week if he chose to receive the rental allowance in cash. For the period of 15 weeks the Plaintiff is entitled to the sum of K4,050.
I also allow the claim for K58.50 for telephone allowance for the period claimed.
The sum of K1,279.00 for accommodation in Australia I have decided to disallow because I have allowed the full amount of rental allowance being claimed covering the same period.
I have not allowed any out of pocket expenses.
The Plaintiff also claims General Damages for distress frustration and being upset at being terminated. I have been referred to HODSON -v- INDEPENDENT STATE OF PNG (1985) PNGLR 303 and the Supreme Court decision in the appeal from that decision and HARDING -v- TEPEROI TIMBERS PTY LTD N672.
It is clear from these cases that damages can be awarded for this should there be any evidence before the Court to warrant this. More than a nominal award be made where there is evidence to support such an award.
In this case I consider that the Plaintiff is entitled to damages. The Plaintiff was terminated because of three allegations against him taken together, one which, turned out to be false. I have found that the PTC Staff By Laws (Ex.1) were not complied with. This has been one of the main complaints of the Plaintiff who claims he was never really given an opportunity to explain. There is also uncontradicted evidence that the Plaintiff underwent medication after termination. I consider that an appropriate award in this case is K2,000.
Finally with regard to interest I consider that interest at 8% should run from the 30th November, 1987 to the date of judgment 4th November, 1988 a period of 340 days and thereafter.
Judgment is entered for the Plaintiff as follows:-
A: 30th November, 1987 to 25th March 1988	 	
1. Wages	K5,376.08	
2. Gratuity and Superannuation	K2,361.56	
B: 26th March 1988 to 26th August 1988	 	
1. Salary (difference between the PTC job and the CPL job)	K2,764.82	
2. Entitlements	K5,034.50	
Sub Total:	K15,536.96	
C: Interest at 8% from 30 November 1987 to 4th November, 1988 (340 days)	K2,157.57	
D: Damages for distress, frustration etc.	K2,000.00	
Grand Total:	K19,694.53	
Lawyer for Plaintiff: Warner Shand Wilson Donigi Reiner & Co.
Lawyer for Defendant: Steeles Lawyers.