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Kopio v Employment Authority of Enga Provincial Government [1999] PGNC 36; N1865 (17 May 1999)

Unreported National Court Decisions

N1865

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS. NO. 49 OF 1996
BETWEEN: DIA KOPIO
PLAINTIFF
AND: EMPLOYMENT AUTHORITY OF ENGA PROVINCIAL GOVERNMENT
FIRST DEFENDANT
AND: ENGA PROVINCIAL AND LOCAL LEVEL GOVERNMENTS
SECOND DEFENDANT

Mount Hagen

Hinchliffe J
12 May 1999
17 May 1999

CONTRACT OF EMPLOYMENT - Assessment of Damages - Mitigation of damages - Onus of proof on the defendants.

Counsel

Plaintiff in person.

No appearance defendants.

17 May 1999

HINCHLIFFE J: The plaintiff, in his Writ of Summons filed on the 8th January, 1996, claims as follows:

“1. The plaintiff is an adult citizen of Papua New Guinea and the employee of the first and second defendants in this proceedings.

2. The first defendant is the authority which acts for and on behalf of the second defendant for purpose of employing and terminating employees for and on behalf of the second defendant.

3. The second defendant is the Enga Provincial and Local Level Government established pursuant to the Organic Law on Provincial and Local Level Government.

4. By an agreement in writing dated 26th September 1994, the Defendant agreed to employ the Plaintiff who agreed to serve them as Transport Officer of the then Provincial Government for a term of three years from 26th September 1994 to 26th September 1997 at a salary of K11,726.00 which is a classified position (No. EEA PTO - 002) to be based at Wabag.

5. It was an express term and condition of the said employment;

(a) That the Plaintiff would be entitled to a four (4) weeks paid leave after completion of every one year.

(b) That the plaintiff would be entitled to be paid in liu (sic) of Notice of 3 months.

6. On the 21st day of July 1995, by letter of the 17th July 1995 Mr. Graham Taylor, Administrator and the Acting Secretary wrongfully and in breach of the said agreement terminated the said employment and wrongfully dismissed the plaintiff therefrom and refused to employ him any longer.

7. By reason of the matters aforesaid, the Plaintiff has lost other benefits including the use and enjoyment of Government vehicle etc.. and he has suffered loss and damage.

PARTICULARS:

(i) Loss of salary from the said 6th July 1995 to the 26th July 1997 (the end of the said term of employment). K26,158.00

(ii) Unpaid salary due to client from 26th September 1994 to 17th July 1995. K4,105.24

(iii) 5% Gratuity for 3 years period 26th September 1994 to 26th September 1997. K1,758.00

(iv) Leave entitlements for 3 years (45 days) K1,804.00

(v) Lieu of Notice one months. K902.00

TOTAL: K34,728.14

8. The plaintiff will give credit therein for;

(a) Deduction of tax in respect of the said salary the plaintiff would otherwise have received in the employment of the defendants subject to his obtaining other employment during the said period.

9. The plaintiff’s claim against the defendant is founded on the relevant provisions of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 30) and the Search and Arrest as well as the Plaintiff’s Constitutional rights and or alternatively on the liability of the Defendants at Common Law.

AND THE PLAINTIFF CLAIMS:

(i) K34,728.14

(ii) Interests principal pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act; and

(iii) Costs

(iv) Further or other relief.”

In his final submissions the abovementioned figure of K34,728.14 has been reduced to K31,315.15.

The plaintiff obtained a Default Judgment, on the 2nd August, 1996, with damages to be assessed. This is the assessment of damages. The defendants did not appear on the hearing of the assessment of damages and did not previously, file a Notice of Intention to Defend or a Defence. I think it would be safe to say that the defendants have taken little interest in these whole proceedings.

The plaintiff, on the Order of the Court, has filed written submissions and in paragraph 7 of those submissions it reads as follows:-

“7. The break up of plaintiff’s claim are from A to E under 5 sub headings (refer):-

(a) Under paid salary K2511.15

(b) Unpaid salary K2225.00

(c) Loss of salary K2225.00

(d) Loss of 2 full years salary K23452.00

(e) Lieu of notice one month K902.00

TOTAL: K31315.15

Plus 8% interest K2505.38

Plus 10% Legal cost K3131.00

Total claim submission: K36951.87”

In his evidence in Court at Wabag on the 12th March, 1999 the plaintiff said that after he was dismissed from his employment he went back to his Village and he stayed there until he went to Port Moresby, in what seems to be in June or July of 1998. He then became a business man and street vendor which he is still involved in up until now. Therefore he stayed in his village for about three years before going to Port Moresby to enter into business. From the time of his termination from employment up until the time his contract of employment would have expired on the 26th September, 1997 there is no clear evidence to suggest that the plaintiff made any effort to find paid employment, that is it seems, although it is not certain, that he made no effort to mitigate the damages lost through his dismissal.

It might be suggested, therefore, that the plaintiff is not entitled to all of the amount he is asking for, but only for that amount lost before obtaining further paid employment. But here the situation is different because the defendants have not elected to defend the matter or appear at the hearing of the assessment of damages, and it is trite law that the onus is upon the defendant to point to a particular course of action which, had the plaintiff followed it, would have reduced the amount of harm suffered by the plaintiff. The onus is on the defendant to prove that such a course was reasonable in the circumstances (Roper v. Johnson (1873) L.R. 8CP 167; Criss v. Alexander (No. 2.) (1928) S.R. (N.S.W.) 587 at 595-596 per Street C.J.; Metal Fabrications (Vic) Pty Ltd. v. Kelcey [1986] VicRp 52; [1986] V.R. 507.

The normal measure of damages, and the only loss which it is incumbent on the dismissed employee to prove, is the salary or wages which he might have earned for the period of proper notice of dismissal (Bakec v. Denkara Ashanti Mining Corp. Ltd. (1903) 20 T.L.R. 37), or over the remainder of the period of his employment (Beckham v. Drake [1849] EngR 843; (1849( 2 H.L.C. 579 at 606 - 607; [1849] EngR 843; 9 E.R. 1213 at 1223 Erle C.J). The dismissed employee “is bound to mitigate his damages by obtaining other suitable employment, if available” (Automatic Fire Sprinklers Pty Ltd. v. Watson [1946] HCA 25; (1946) 72 C.L.R. 435 at p452 per Lalham C.J.), but the onus lies on the defendant employer to show that the employee has failed to satisfy that obligation (Harding v. Harding (1928) 29S.R. (NSW) 96 at 106 per Comphell J; Bagnall v. National Tobacco Corp. of Australia Ltd. [1934] NSWStRp 30; (1934) 34 S.R. (N.S.W) 421 at 430 per Jordan C..J; Yetton v. Eastwoods Froy Ltd [1967] 1 W.L.R. 104 at 115 per Blain J).

It is blatantly clear in this case that the defendants have not discharged the onus of proof regarding mitigation and therefore the plaintiff is entitled to most of his claim. From his claim of K31,315.15 I deduct the sum of K902.00 because that is included under the “Loss of Salary” heading. Therefore the sum should be K30413.15.

I order as follows:

Judgment for the plaintiff in the sum of K30413.15 plus interest at 8% from the issuing of the Writ until the date of Judgment.

I further order that the defendants are to pay the plaintiff’s costs. If not agreed then they are to be taxed.

Orders accordingly.