N2314

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NOS. 349 AND 350 OF 2002

BETWEEN:

PATRICK DISSING &
BERNARD MAIKILI
Plaintiff

AND:

THE COCOA BOARD OF PAPUA NEW GUINEA
Defendant

KOKOPO: Lenalia, J.
2002: 11, 19, 24 April, 11 May, 29 October

CIVIL LAW – Contract of Employment – Master and Servant – Acting appointments made in currency of subsisting three years contract – Acting positions made prior to expiry of former contracts – Termination of acting positions after former contracts expired by effluxion of time

CIVIL LAW – Employment Contract – Written contracts – Implications of written contract – Construction of terms of written contracts to determine acting positions – Expiration of written contracts by effluxion of time – Termination without required notice – Termination without required notice – Damages.

CIVIL LAW – Damages – Damages will only lie where termination has been Unusually harsh and callous – Mental distress – Damages cannot be recovered for mental distress alone, if it were no more than grief or painful thoughts: Behrens -v- Betram Mills Circus Limited [1957] 2 Q.B. 1.

WORDS & PHRASES – "Wrongfully dismissed" – "Without reasonable or any notice" – General Orders Terms and conditions of employment – Employees of Papua New Guinea Cocoa Board - Public Service General Orders read together with Cocoa Board General Orders.

Cases Cited
Malai -v- Papua New Guinea Teachers Association [1991] PNGLR 116.
Robinson –v- National Airlines Commission [1983] PNGLR 476.

Other cases cited:
Behrens - v- Betram Mills Circus Limited [1957] 2 Q.B. 1.
Ridge -v- Baldwin [1964] A.C. 40
Bourhill -v- Young [1943] A.C. 92

Counsel:
W. Donald 	for the Plaintiff
D. Lidgett, 	for the Defendant.

25 October 2002

JUDGMENT

LENALIA, J.	The two Plaintiffs were formerly employed by the Defendant until 24th of May 2001 when they were terminated. They have now each and severally sued the Defendant on separate proceedings namely (Os. Nos. 349 and 350 of 2001). Despite the fact that, the two claims are not consolidated, I use my discretion to write one judgment for the two actions, since the plaintiffs claims are essentially and basically similar with the same basic facts. Each case contains substantially and fundamentally the same facts and the nature of the two proceedings are the same.

For purpose of identification and differentiation between the two plaintiffs on this judgment, I shall directly refer to the names of each claimant where necessary to avoid confusion unless where it is appropriate for the Court to refer to them as "the plaintiff in the former claim" or "the plaintiff in the later claim" or action or just as the "plaintiff)".

FACTS OF THE CASE OF MR. PATRICK DISSING (OS. NO. 349 OF 2001).

Mr. Patrick Dissing commenced working with the Defendant as an Accountant since July in 1995. He worked his way up through the ranks until 8th of April 1998 when he entered into a written contract of employment with the Defendant. Under that employment contract, Mr. Dissing was employed as a Financial Controller and the position was of those executive posts within the Defendant’s organisation. Prior to him being employed by the Defendant, Mr. Dissing had a wide range of exposure to and with private companies including Bougainville Development Corporation, Arawa Enterprises Limited and worked in the same capacity as an Accountant with Ernest & Young Chartered Accountants.

Mr. Dissing holds a Bachelor of Technology in Accounting from the University of Technology in Lae and is currently a member of the Papua New Guinea Institute of Accountants Inc. 

Mr. Dissing’s contract of employment was to run for thirty six (36) months from the date he entered into the contract namely 8th of April, 1998 and had he continued working in the same capacity, the employment contract would have ended on or about 10th of March 2001. However the Defendant comprising of all the Board Members met on 30th of September, 1999 and approved a new structure wherein a number of executive positions within the Defendant’s administrative organization were abolished. The position held by the plaintiff Mr. Dissing was one of those positions affected and abolished.

In an Inter Office Memo dated 7th of October 1999, the then Chief Executive Officer Mr. Ereman Ragi CBE. gave notice to all staff in the Defendant’s organization about the changes to take place. In that same memo all staff were advised that those officers affected would be advised and letters of appointments would be served accordingly. Before the above date, Mr. Dissing on 6th of that same month received a memo from Mr. Ragi advising the same that the Board had recently met and approved a new organisational structure for the Defendant Board to coincide with the Defendant’s 1999/2000 – Cocoa Year Budget. Mr. Dissing was further advised that there was no longer a position of Financial Controller and that Mr. Dissing was to be an Acting Manager for Corporate Services Division.

Mr. Ragi also advised Mr. Dissing that, his new acting appointment encompassed certain responsibilities and supervision over the financial and administrative units of the Defendant’s organization until the new acting position was formally and publicly advertised. In the mean while Mr. Dissing was advised too that he was to be the Acting Divisional Head and he was at liberty to apply for substantive appointment whenever the position was advertised if he so wished to do so.

On 24th of May 2001, the then Chairman of the Defendant board Mr. Sam Tulo OBE. wrote to Mr. Dissing and informed him that the Board had unanimously decided to terminate him. The only reason given for Mr. Dissing’s termination by the Chairman of the Defendant Board was that due to the expiration of the plaintiff’s contract of employment by effluxion of time, the Defendant did not longer require Mr. Dissing’s services and the Defendant did not wish to renew and offer to the plaintiff a new contract of employment nor would the Board retain him in the same and any other capacity within the Defendant’s administration anywhere in Papua New Guinea.

On the basis of the Defendant’s action, Mr. Dissing originally took out an Original Summons seeking declarations amongst others that the plaintiff had not been validly terminated and for the Court to declare that such termination was null and void and of no legal effect. The declarations sought were abandoned and in his Amended Statement of Claim, Mr. Patrick Dissing sues the Defendant for damages for wrongful dismissal, loss of income including salaries and entitlements payable under the contract, damages for mental distress, interest and cost of the proceedings.

FACTS OF THE CASE OF MR. BERNARD MAIKILI (OS. NO. 350 OF 2001).

The facts of the case of Mr. Bernard Maikili the plaintiff in OS. No. 350 of 2001 is much similar to those of his colleague Mr. Dissing. Bernard commenced his employment with the Defendant in 1980 as the Board’s Inspector. He worked his way up through the ranks in the Defendant’s administration carrying out his inspectorate functions since being employed first in Madang, Madang Province. He was transferred to North Solomons Province then from there, to East New Britain Province. Mr. Maikili had held a number of senior positions within the Defendant’s administration including the Deputy Chief Executive Officer.

On Mr. Maikili’s education background, he holds a Diploma in Tropical Agriculture from the Vudal University and what it used to be known then as Vudal Agricultural College. He obtained that in 1978. He also holds a Certificate of Tropical Agriculture from Popondetta Agricultural College and another Certificate in Agriculture from Yanco Agriculture College, Leeton, New South Wales, Australia.

On 8th of April, 1988, Mr. Maikili entered into a contract of employment with the Defendant which should have run until about 10th of March 2001. The new employment contract included various terms and conditions contained in the Employment Contract. Before the two plaintiffs contract of employment expired, Mr. Maikili was advised in an Inter Office Memo dated 6th of September 1999 by the then Chief Executive Officer, Mr. Ereman Ragi that due to the Defendant’s new organisational structure, the Board had decided to abolish certain positions within the Defendant’s administration and that the plaintiff’s former employment contract was one of those affected and had been abolished.

The Plaintiff was also advised that the new structure superseded the former structure and that Mr. Maikili was instead appointed to a new acting appointment as an Acting Manager for Operations. The new structure was to replace the old Inspectorate Division. In that same memo, the Plaintiff was also informed that, he was to hold the Acting position only until the position was publicly advertised before a substantive appointment was made and that Mr. Maikili was at liberty to apply for such position if he so wished.

On 24th of May 2001, Mr. Sam Tulo the then Chairman of the PNG Cocoa Board informed Mr. Maikili that the full Board had unanimously decided to terminate him and his services to the Defendant were no longer required. Only one reason was specified by, Mr. Tulo as the reason for the plaintiff’s termination namely that the previous contract had expired by effluxion of time and the Defendant did not wish to retain the plaintiff anywhere within the Defendant’s administration within the whole country.

Mr. Maikili was given fourteen (14) days to vacate the Defendant’s residence and that all contents of such residence should not be removed. He was barred from entering the Defendant’s premises and unless he sought permission from the Chief Executive Officer, he could not enter nor go around the premises. His final entitlements were to include only one month’s entitlements in lieu of notice.

On his original Writ of Summons, the plaintiff sought certain declarations including, a declaration that he was not validly terminated and that his termination should be declared null and void. These declarations have since been abandoned and in his Amended Statement of Claim Mr. Maikili now claims damages for wrongful dismissal, loss of income including salaries and other entitlements he was enjoying before his termination, damages for mental distress, interest and costs of these proceedings.

EVIDENCE

The evidence of the two plaintiffs in Court mostly centred around, their historical background history of their employment and the fact that for each of them they have had distinguished careers with the Defendant. In case of both of them, the two plaintiffs alleged in their sworn testimonies that they were wrongly terminated and that they now each sue the Defendant for wrongful termination of their contracts of employment and other damages arising from such termination.

In case of Mr. Patrick Dissing, in his affidavit sworn to and filed on 18th of January 2002, which was admitted into evidence and marked with the letter "B" for purposes of identification, Mr. Dissing says that, he was never given prior notice by the Defendant to have him terminated. He further said he was entitled to at least three months or alternatively one month, notice before termination.

Mr. Dissing’s evidence further reveals that his termination may have resulted from a letter written and signed by himself and Messrs Maikili and Tautea to the then Deputy Prime Minister Mr. Michael Ogio OBE. wherein they alleged to have divulged certain information on the running and financial administration of the Defendant. The same says, he should have been treated as Mr. Tautea was treated when he was suspended for fourteen (14) days without pay and later the suspension was uplifted.

Following his termination, Mr. Dissing’s evidence reveals that he incurred extra costs including a rented property at Kenabot for the period between 9th of July to 11th of November 2001 at the cost of K1,700.00 per month. Other costs included another rented property owned by the Copra Marketing Board at Ulaveo at the cost of K880.00 per month. (see Ex. "C"), hire of vehicles (see Ex. "D1" – "O3", Ex. "E1 & E2" and "F1" to "F5"). Apart from the above, there were other expenses incurred such as for gas and electricity. Unlike his colleague, Mr. Dissing’s evidence does not show how long after his termination did he receive his termination entitlements.

Also in his evidence, Mr. Dissing said, when he was terminated, he suffered mental distress and being a hardworking and honest employee, he felt he was unfairly and very harshly treated as he was terminated without notice. The two plaintiffs have included in their evidence newspaper clippings tendered and accepted as part of their evidence to support their claim for mental distress. In case of both of them, Messrs Dissing and Maikili said in Court their termination received wide media publicity as at that time, there was a lot said about the Defendant’s financial and administrative problems. The news of their sackings was reported in both the Post Courier and the National, (in case of Mr. Dissing see Exs. "D" and "E" and Exs. "C" "D" and "E" in case of Mr. Maikili).

Mr. Dissing also says that not only was he personally affected but his family was also hurt and affected and he had to go through the trouble of explaining it over and over again to his family as to why he might have been terminated.

As in the case of Mr. Dissing, Mr. Bernard Maikili’s evidence is much similar to the other plaintiff in these two proceedings. Mr. Maikili testified in Court that he now merely sues for damages for wrongful dismissal, loss of income including salaries and other entitlements due to him under his contract. Mr. Maikili recalls that, his termination and that of this colleague Mr. Dissing may have resulted from a letter written and signed by his two colleagues Messrs Dissing and Tautea and himself to the Deputy Prime Minster as I said earlier on.

In both cases, the two plaintiffs have included in their list of documents copies of that letter (see Exs. "H" and "F" respectively) on which the two plaintiffs and Mr. Tautea complained bitterly about the running and financial administration of the Defendant Board. It was some five and half pages letter raising concern over the future and possibility of the Defendant being declared insolvent due to insufficiency of assets and funds to keep the Defendant running. Amongst other concerns, they complained about travelling allowances, an alleged payment of some K15,000.00, an affair with a female staff, staff advances, lack of transparency, nepotism, acting appointments, use of the defendant’s vehicles and a foreign-owned overseas company being granted on export licence.

Mr. Maikili further said, he sued for mental distress as well as he was mentally affected by his termination because of the very wide publicity given over the media on his sacking (see Exs. "C" "D" and "E").

Mr. Maikili has included in his evidence a list of documentary evidence in relation to his spending of costs of what he incurred after he was terminated. These include a rented property at Ulaveo owned by PNG Copra Marketing Board, receipts for payment of gas and electricity, vehicle hires, petrol and fuel, Airline tickets, freight and sundry other items, (see his Exs. Marked with letter "B" to "L").

The defence case consisted of Mr. Lauatu Tautea alone. Mr. Tautea is currently the Chief Executive Officer of the Defendant Board. His evidence is very brief. The same confirmed the two plaintiffs evidence of being terminated and despite provisions in the Cocoa Board General Orders to only act for three months, Messrs Dissing and Maikili could not he appointed as there may have been the problem and issue of the Board Members looking for someone whom the Defendant Board members could work with.

SUBMISSIONS

After the trials were completed in the case of Mr. Maikili on 11th and in Mr. Dissing on 24th of April of this year the Court directed the defence to file and serve their written submissions within seven (7) days then for the Plaintiff’s lawyer to reply within another seven (7) days and if the defence wanted to further reply would have to be another seven (7) days making a total of twenty-one (21) days. The lawyers did not comply. The defence lawyer only filed their written submissions by 5th of July 2002. I have waited since then for a reply by the Plaintiff’s lawyer. Nothing has been forthcoming. There is a certain level of un-professionalism shown on the carriage of these two matters and such inordinate delay may border on contempt of Court.

Despite comments made immediately above, I thank Mr. Lidgett for your submissions and the enlightening address on the position in law in relation to the acting appointments of the two plaintiffs. Let the Court reiterate again the habit of letting the Court down where certain directions have been given is unethical and unprofessional and may in fact constitute contempt.

LAW

The traditional view of any employment relationship is that it is a relationship between an individual employer and the individual employee. Such relationship is brought about by a private contract negotiated between the two parties. The instant claims by the two plaintiffs were cases of "contract of services", as compared to "contract for services". (see ‘CONTRACT OF EMPLOYMENT" 3rd Edition. 135, by Brian Brooks).

The law on master and servant relationship has been stated from time to time in this jurisdiction. The common law case of Ridge –v- Baldwin [1964] A.C. 40 has been often quoted for the principles laid there and which have been quoted time and time again in the Papua New Guinea authorities. Lord Reid categorized the law regarding master and servant relationship in the following words:

"The law regarding Master and Servant is not in doubt. There cannot be specific performance of a contract of service and the Master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of Master and Servant does not at all depending on whether the Master has heard the Servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with it’s servants or the grounds on which it can dismiss them. The present cases does not fall within this class because the Chief Constable is not the servant of the watch committee or indeed of anyone else".

In Malai –v- Papua New Guinea Teachers Association [1991] PNGLR 116, the plaintiff claimed damages for unfair dismissal and for payment of all entitlements due to him under the terms of his previous contract of employment. That was the case were the terms of the contract of employment were not in writing. His Honour Brown, J. held at the footnote of that judgment the following:

"Held: (1) In the absence of written terms and conditions of employment, the officer was bound by such terms and conditions as might be imposed by the Committee and such terms and conditions as might reasonably be implied from the particular circumstances of his employment.

Ridge v Baldwin [1964] AC 40, applied,

(2)	Under cl 34 (1) of the constitution of the Association, the Management committee had power to terminate the services of the officer.

(3)	In the circumstances and having regard in particular to the acing nature of the appointment, the employment being at the direction and control of the Secretary of the Association, the absence of any statutory or contractual right or condition of employment which would affect the common law right to terminate the services of the officer at will and the reasons given for termination, the officer did not have a right to be afforded and opportunity to be heard on the decision to terminate his services and no breach of contract was involved."

In the circumstances of the instant claims, the two plaintiffs entered into two written and well-documented contracts of employment between themselves and the Defendant back on 8th of April, 1998. The contracts of employment were to run for some three years. Had the two contracts been maintained, they should have ended by effluxion of time on or about 10th of March 2001. In the preamble of their written contracts of employment, clause (iv) provided:

"The Parties wish to enter into a contract of employment (the contract) which shall have at termination date on the expiry of 36 months from 11th of March, 1998."

Due to the re-organisational structure of the Defendant’s administration, the plaintiffs’ contracts of employment were affected. It appears from all evidence that the only positions affected were those held by Messrs Dissing and Maikili. In case of Mr. Dissing as alluded to in his evidence earlier on, he was appointed as an Acting Corporate Services Manager and in Mr. Maikili’s case, he was the Acting Manger for Operations. Evidence shows that the new Acting positions came with new salary bases for each but other allowances were to remain the same as per their former contracts of employment.

It is submitted by counsel for the Defendant that the decision by the Cocoa Board to reorganise the Defendant’s administration was done within the terms of the Cocoa Board General Orders. The Defendant is empowered so as the Chief Executive Officer by the above orders to make acting appointments where it feels or he feels necessary to fill a vacancy or vacancies. The general orders under the heading "Promotion of Officers", paragraph 4.5 reads:

"4.5	Where a vacancy exists in the Cocoa Board of Papua new Guinea, and it is necessary to fill the vacancy, then the Chief Executive Officer can make an acting appointment to fill the vacant position. The employee concerned retains his substantive position. Such appointments shall be made for a period not exceeding three (3) months during which time every effort must be made to advertise and fill the vacancy substantively".

It is not contested by the defence evidence that the two acting positions were not advertised and they were not even filled substantively. It is not contested either that the two acting positions were held for more than three months as required by the terms and conditions in paragraph 4.5 quoted above. There is no evidence before the Court to suggest if any efforts were adopted by the Defendant nor even by the Chief Executive Officer to publicly advertised either internally nor externally to fill the vacancies substantively.

It could be argued in favour of the two plaintiffs that; since the abolishment of their substantive appointments on 30th of September 1999, their original substantive positions were repudiated and the two plaintiffs individually had entered into new contractual terms with the Defendant. Note here, that for the purposes of this argument, the Defendant was not silent after the substantive positions were abolished. At least Messrs Dissing and Maikili were advised by inter office memos that their substantive posts were abolished due to the new structure in place and not only this but, the two plaintiffs were appointed to new acting positions.

The plaintiffs worked more than three months without being considered for substantive appointments as required by the Cocoa Board General Orders (4.5) governing the terms and conditions of their employments. In case of Mr. Dissing, the inability of the Defendant to make substantive appointment within three months prompted him to write to the Chairman of the Board on 29th of August, 2000, on which he expressed concern over his employment contract soon to be expired. In that same letter Mr. Dissing expressed and indicated his willingness and sincere desire to serve the Defendant for a further term of three years.

The terms of that letter is quoted in toto below:

"Mr. Sam Tulo, OBE,
Chairman,
Cocoa Board of PNG
P O Box 250,
BUKA.

My dear Chairman

SUBJECT: EMPLOYMENT CONTRACT

I am writing to you in regards to my employment contract which expires on the 13th of March, 2001.

In particular, I am sincerely seeking your views on whether the board would consider renewing my contract of employment. If so, what would be the chance of renewal.

Perhaps, it would help, if I mentioned to you of my sincere desire to serve the board for another three (3) years.

Chairman, I understand and appreciate that this would be a matter for the full board to look into and decide on when the time is right. Having said this, however, I am also mindful of the special position you hold as the Chairman and chief of the board and the influence you would have in any decision in relation to renewal of employment contracts.

Chairman, I am prompted to write to you about the matter this early so that I can commence planning what to do after my contract expires. I am sure that you will appreciate this.

Thank you in anticipation of your response.

PATRICK DISSING (Signed)
ACTING MANAGER CORPORATE SERVICES".

In reply to Mr. Dissing’s letter, the Chairman on a letter date 31st of August that same year said the following:

"Mr. Patrick Dissing
Acting Manager – Corporate Services Manager
Coca Board of Papua New Guinea
P O Box 532
RABAUL

SUBJECT: EMPLOYMENT CONTRACT

Thank you for your letter of 29th August 2000, seeking my views on the above subject as it relates to your employment with the Cocoa Board of Papua New Guinea.

You are of course aware that the position you were contracted under has been abolished and you have been placed on acting appointment on the present position as a result of the new Management Administrative Structure. Such will not be effective until your contract expires and the new position advertised and substantive appointment made. This means that you will have to apply for the new position when it is advertised.

I see no reasons why the Board should not give favourable consideration to your application for re-employment as your performance with the Board for the last six (6) years has been very good despite some misunderstanding developing between you and the Chief Executive Officer regarding funding. This, I believe have been dissolved and have now been put to rest.

I believe the working relationship between you and the CEO has return to normal.

The Board will made an official indication on your contract as it’s meeting in Kokopo on 20/09/2000. In meantime you should continue the good work you have been doing for the last six (6) years with the Cocoa board of Papua New Guinea.

SAM TULO, OBE (Signed)
Chairman".

It seems Mr. Maikili did not have any similar concern as his colleague did, but the quoted wordings of the two letters confirm the view and understanding by the parties that the two plaintiffs were acting until sometimes they would apply to fill the acting posts substantively.

The defence evidence does not reveal any reasonable grounds why no efforts were made on the part of the Defendant nor, even on the part of the then Chief Executive Officer to advertise within three months. It is submitted in favour of the Defendant that if the Court finds there was failure on the part of the Defendant to advertise within three months, as required by paragraph 4.5 of the Terms and Conditions, the terms of the clause are such that it is not open to the Court to change the nature of the acting position to that of permanent or substantive. I do not agree with Mr. Lidgett in that sense for if I found that the Defendant was in breach of any fundamental terms of the contracts of employment of the two plaintiffs I would not hesitate to enforce such terms as agreed upon. There is a general presumption in the law of contract that the parties have expressed either orally or in writing all the material terms of their contract and if breached by a party damages will lie. Implied terms can also be inferred from the dealings of the parties to give business efficacy to a contract. In the instant claims the plaintiffs acted in the acting positions for more than three months. There was no action taken by the two plaintiffs to sue the Defendant to force the Board to advertise so the two could apply for substantive appointments.

It must also born in mind that where the parties have made unambigious expressed provisions as in the two instant contracts of employment the court cannot imply a term to the contrary: Trollope & Colls, Ltd –v- N.W. Regional Hospital Bd. [1973] 2 All ER 260

The Court here is dealing with two employment contracts. I must therefore interpret the terms of the contracts of employment strictly in accordance with the terms and conditions set down in the Cocoa Board General Orders. The fact that the Cocoa Board failed to advertise within three (3) months would not entitled this Court to force upon the parties what they did not intend at the beginning of their dealings. This Court cannot force the parties into a relationship which has become "noxious to either of them: Robinson -v- National Airlines Commission [1983] PNGLR 476."

An element of infinite contract of employment is, there is an implied term that an employee is entitled to be given "reasonable notice".

The terms "reasonable" "notice" or "reasonable notice" are not defined in the Interpretation Act Ch. No. 2. The phrase "reasonable" is defined in the Oxford Advanced Learner’s dictionary in different contexts. It means "fair, practical and sensible" or "acceptable and appropriate in a particular situation" or "not too expensive" and finally "fairly good, but not very expensive".

The word "notice" in the same source is also used in many different ways. The sixth definition given there is "WARNING, information or a warning given in advance of something that is going to happen" or "a formal letter or statement saying that you will or must leave your job or house at the end of a particular period of time". This word (notice) is also used in contrast with the word "short notice" meaning basically without warning or time for preparation.

But an employer does not have to give notice in a case where the employee’s behaviour and conduct has caused the employer to dismiss without notice. Looking at the dealing of parties since 1998, I do not think, the proposition of infinite contracts was ever contemplated. I do not even think the acting positions upon which the two plaintiffs acted were ever meant to be infinite as they were merely acting positions.

The two plaintiffs held senior positions in the Defendant’s administration. For purposes of tracing the understanding of the parties, it is necessary to look at some provisions in their former contracts of employment. Paragraph 1 of their former substantive contracts of employment reads as follows:

"1. The Contract shall comprise of this Agreement and the Terms and Conditions of Employment under the Cocoa Board Act (the Terms and Conditions) attached hereto, and this Agreement and Terms and Conditions shall be read together and interpreted as one document, and where this Agreement varies the Terms and Conditions, then this Agreement shall prevail".

Thus the two plaintiffs former employment contracts referred specifically to the Terms and Conditions to be read together with the two contracts of employment and although the attached Terms and Conditions merely refer to the Deputy Executive Officer, those terms and conditions were applicable to the case of the two plaintiffs.

Under the heading "GENERAL TERMS AND CONDITIONS AND DEFINITIONS, paragraph 1.4 says.

"Upon completion of the Contract, a new contract may be offered to the Deputy Executive Officer in accordance with these Terms and Conditions as may be agreed to by the Board and the Deputy Executive Officer provided that where a new contract is not offered, employment with the Cocoa Board may continue subject to the conditions of Section 29 herein".

By the terms of their contracts, Messrs Dissing and Maikili were contract officers with the Defendant as compared to their infinite contract, prior to 8th of April 1998. Since then, the plaintiffs entered into a three-year term contract individually. At the expiration of their contracts, they could have been offered new contracts had the Defendant offered them. However it did not occur that way.

For the Court to accept the proposition that the two plaintiffs individual contracts were of indefinite periods in my opinion would be a pretext and out of context which factor was not contemplated when the two plaintiffs were first engaged and contracted in 1998. As such any issues for the Court to determine must be considered in the context of the terms and conditions and the dealings between the parties from commencement of their three-year term contracts.

In the circumstances of the instant claims, I find the contracts of employment entered into between the defendant and the two plaintiffs on 8th of April 1998 were fixed terms contracts as fixed by that contract of employment and from those dealings between the parties concerned it cannot be said that the acting positions offered to the two plaintiffs from 30th of September 1999, were infinite term contracts. It is my view it would be improper for the Court to change the nature of the acting positions to those of substantive as it would unnecessarily frustrate the contracts of employment and after all that is not what was contemplated when the Defendant offered the two acting positions to the two claimants.

I must eventually find that, the two contracts of employment were lawfully terminated by effluxion of time when the former contracts expired by 10th of March 2001 and within the currency of their acting appointments. Under clause 17.2 (a) of the General Terms and Conditions and Definitions, the two plaintiffs were entitled to not less than three months notice. That is what is due to the two plaintiffs under their contracts. Evidence shows that they have been paid one month, entitlements at least they are entitled to another two months as required by the terms of clause 17.2 (b) of the Contract.

Apart from damages for three months notice the two plaintiffs were given 14 days to vacate the Defendant’s residences. In Mr. Bernard Maikili’s case, his entitlements were not processed in time to immediately effect repatriation of himself and his family and of course shipment of their personal effects. Any expenses incurred between the date on which the two plaintiffs vacated the Board’s residences to the time, they received their entitlements, the two plaintiffs are entitled to be compensated for that.

Mr. Dissing in his evidence says that, he is entitled to all expenses incurred from the date of his termination to the date of this judgment. The Court will not accept this as both plaintiffs have or had a duty on each of their part to mitigate the costs of expenses incurred by each of them. Livingstone -v- Rawyards Coal Co. (1880) 5 App. Cas 25.

The two plaintiffs also claim for mental distress. At common law, there used to be some crude view that the law should only recognise claims for physical injuries resulting from the actual impact but that view has now been discarded with and it is now a well recognized principle of law that an action will lie for injuries where shock has been sustained through the medium of the "eye or ear" without any direct contact. In Bourhill -v- Young [1943] A.C. 92 in the judgment of Lord MacMillan, His Lordship discusses three aspects of injuries namely physical injury, injury by shock and injury through the medium of the eye or ear.

In fact in any nervous shock of any type, we speak of physical injury though not of any obvious type. But as Lord McMillan put it "any shock of my kind is a disturbance of the nervous system affecting the glance and chemical controls of the body producing well recognised symptoms". It was also said in Behrens -v- Bertram Mills Circus Ltd [1957] 2 Q.B. 1 that damages cannot be recovered for mental distress alone if it is "no more than grief or pain and unhappy thoughts". See page 28.

I must accept on the part of the two plaintiffs the fact that they have each suffered some mental stress. Particularly around about the period of the year when the plaintiffs’ children were attending school and the burden born by the two plaintiffs, and their wives and children was quite enormous. For their mental stress, the Court must make an award.

SUMMARY

1.	To summarise my findings, I do not find that there was any wrongful dismissal as I find from all the evidence both for the Plaintiffs and the Defendant that, the termination of the two plaintiffs expired by effluxion of time and the plaintiffs have no proper claim in damages.

2.	I do find however that the plaintiffs were and are entitled to three months notice as required by Clause 17.2 (b) of their contracts of employment. Their evidence shows that they have been paid one-month entitlement in lieu of notice. Clause 16.5 of the General Orders of the Cocoa Board provides that pursuant to the redundancy provisions a permanent employee must be given three months notice. That proposition is at least also reflected in Clause 17.2 (b) in the general terms and conditions attached to the two plaintiffs’ contracts. The end result is that the two plaintiffs must be paid their remaining two months full entitlements.

3.	Apart from the two months entitlements, the two plaintiff are entitled to be compensated for whatever expenses incurred from the date they vacated the Defendant’s residences to the time the two plaintiffs received their repatriation costs. Mr. Mailili’s evidence shows, he was given insufficient repatriation expenses. Under those circumstances, he is entitled to recover whatever he incurred to meet the cost of repatriation and any costs incurred on freight and shipment costs together with Airline tickets costs. They are both entitled to be compensated for whatever expenses incurred from the dates of termination until the dates they received their entitlements.

In the case of Mr. Maikili he said in evidence, he did not receive his entitlements within the fourteen days given him until some five months later. His entitlements were only given him after some five months waiting time. If that is so, he is entitled to be compensated for expenses incurred.

4.	One of the reasons for giving an employee three months notice or any other time specified in the contract is so that an employee is able to prepare well if need be he or she may seek employment somewhere else and in the case of the two plaintiffs they were entitled to look for alternative employment as well as repatriating their spouses and children to their Districts as well as to look for new schools for their children. This I find the Defendant breached the three months requirement and the Court must make an order for mental distress. The Court awards a sum of K2,000.00 each for mental distress.

5.	Though the evidence is not so clear as to how much expenses were incurred from the date of their termination to the date they were given or they received their one month entitlements the Court orders and direct the Defendant together with the two plaintiffs to calculate all expenses incurred and the plaintiffs shall file and serve with the Defendant notices of expenses within seven days.

The Defendant Board shall within 21 days pay to the plaintiff all their remaining dues for the two months notice together with expenses incurred from termination to the date of receipt of their entitlements, and the order for mental distress.

6.	The Defendant shall meet the costs of these two proceedings.
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Lawyer for the Plaintiffs	:	Namaliu Lawyers
Lawyer for the Defendant	:	Warner Shand, Lawyers