N3373

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 728 OF 2006

BETWEEN:

BENEDICT PETRUS
First Plaintiff

AND:

HENRY GAWI
Second Plaintiff

TELIKOM PNG LIMITED
Defendant

Kimbe: Cannings J
2007: 22 November
2008: 30 May

CONSTITUTIONAL LAW – human rights – casual employees – plaintiffs employed as casual employees for four years – employer’s failure to pay allowances and benefits normally paid to ‘permanent’ employees – whether employer’s actions harsh or oppressive – Constitution, Section 41 – whether employees entitled to damages – claim for damages for breach of human rights under Constitution, Section 57 – whether orders for compensation can be made under Constitution, Sections 23 and 155(4). 

LAW OF EMPLOYMENT – casual employees – plaintiffs employed as casual employees for four years – employer’s failure to pay allowances and benefits normally paid to ‘permanent’ employees – Employment Act, Sections 10, 15. 

Facts

The defendant employed the plaintiffs as casual workers for more than four years but failed to pay them the sorts of allowances and benefits that it normally paid to its ‘permanent’ employees. The plaintiffs brought their grievances to the defendant’s attention on a number of occasions but the defendant failed to respond. The plaintiffs brought a civil action against the defendant, their cause of action being that the defendant treated them harshly or oppressively contrary to Section 41 of the Constitution. The plaintiffs sought damages under Section 57 of the Constitution for the breach of their human rights. 

Held:

(1)	The plaintiffs are deemed by Section 10(1) of the Employment Act to be ‘oral contract employees’ for the purposes of the Employment Act as they were employed as casual workers by the same employer for more than six days in one month.

(2)	Section 15(1) of the Employment Act required the defendant to make a written record of the terms and conditions of their contracts of service at the time of their engagement.

(3)	Where a dispute arises as to the terms and conditions of an oral contract of service and the employer fails to produce a record under Section 15(1), Section 15(2) provides that a statement by the employee as to the terms and conditions becomes conclusive evidence of those terms and conditions unless the employer satisfies the Secretary for Labour and Employment or an Arbitration Tribunal to the contrary. 

(4)	The defendant failed to make a written record of the terms and conditions of the contract at the time of engagement and therefore Section 15(2) applied. 

(5)	The plaintiffs had consistently made statements, which were not unreasonable, that it was an implied term of their employment that they would be paid the same sort of allowances and benefits as the defendant paid to its ‘permanent’ employees who were doing the same sort of work as them. 

(6)	Those statements became conclusive evidence of the terms and conditions of their contracts of employment.

(7)	The defendant’s failure to pay those allowances and benefits was sufficient to establish that the defendant acted harshly and oppressively contrary to Section 41 of the Constitution.

(8)	The defendant was ordered to pay compensation to the plaintiffs of K11,147.96 each.

Cases cited:

Peter Kirin and KK Farmers v John Paroda (2004) N2599
Roger Baboa v PNG Communication Workers Union (2006) N3043
SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329
Wilson Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

ORIGINATING SUMMONS 

This was a trial on an alleged breach of constitutional rights. 

Counsel

O Oiveka, for the plaintiffs
A Wape, for the defendant

TRIAL ON ALLEGED BREACHES OF CONSTITUTIONAL RIGHTS

30 May, 2008 

1. CANNINGS J: Benedict Petrus and Henry Gawi, the plaintiffs, live at Buvussi, between Kimbe and Hoskins in West New Britain. The defendant, Telikom PNG Ltd, for some time operated a repeater station and other telecommunication facilities at the top of Mt Otto, near Buvussi. The site was decommissioned in September 2006.

2. Telikom employed the plaintiffs as security guards at Mt Otto from August 2002 to December 2006. They were not appointed to any substantive position in the company and were treated and paid as casual workers. They have brought Telikom to court as they claim they were not paid the sort of allowances and benefits that it normally paid to its ‘permanent’ employees doing the same job as them. They say they trudged up and down the mountain on countless occasions over the years and looked after the defendant’s assets but had to provide their own rations. They received no hardship allowance, no camping allowance, no risk allowance, no overtime, no holidays; nothing other than their fortnightly wage of K218.40 each. They say Telikom used to pay huge amounts of money to bring police personnel to the site by helicopter. That was until 2002 when there was a volcanic eruption at the nearby Mt Pago. Telikom has saved a lot of money by employing them, they say. They say they brought their grievances to Telikom’s attention on a number of occasions but there was no response.

3. They have brought a civil action against Telikom, their cause of action being that Telikom treated them harshly or oppressively contrary to Section 41 of the Constitution. They rely on the Employment Act to argue that it was harsh and oppressive to continue to employ them for so long as causal workers. They seek damages under Section 57 of the Constitution for the breach of their human rights that has occurred. 

4. Telikom denies any harsh or oppressive treatment of the plaintiffs. To succeed under Section 41 of the Constitution the plaintiffs would need to show that they were the victims of some cruel, unsympathetic or ruthless action, something that could be regarded as domineering or repressive; and they have fallen well short of that. Ms Wape, for Telikom, emphasised that it was the plaintiffs who had come forward and offered their services in 2002. Their employment was voluntary. There was no element of forced labour. They were employed from fortnight to fortnight. If they were dissatisfied with their conditions they could have withdrawn their services. They were treated fairly, indeed generously, as they were paid for several months after Mt Otto was decommissioned, before being taken off the payroll. 

DID TELIKOM TREAT THE PLAINTIFFS HARSHLY OR OPPRESSIVELY?

5. I do not agree that the plaintiffs have to show that they have been treated cruelly or ruthlessly in a physical sense. Section 41 of the Constitution is not confined to physically harsh or oppressive acts. An act can be "harsh or oppressive" if it is unfair, ungentle, unpleasant or unwarranted given all the circumstances of the particular case. 

6. Section 41 states:

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)	The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

7. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts. Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1.	harsh; or
2.	oppressive; or
3.	not warranted by the requirements of the particular circumstances;
4.	disproportionate to the requirements of the particular circumstances;
5.	not warranted by the requirements of the particular case; or
6.	disproportionate to the requirements of the particular case; or
7.	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

8. It is the first two that the plaintiffs base their case on. Their main argument is that Telikom treated them harshly and oppressively by ignoring the Employment Act, Section 10, which deals with the rights of casual workers.

Employment Act, Section 10

9. Section 10 (casual worker deemed to be oral contract employee) states:

(1)	Subject to Subsection (2), where a casual worker is employed by the same employer for more than six days in any one month he shall be deemed to be an oral contract employee under Division 3.

(2)	Subsection (1) does not apply to a casual worker employed under the provisions of a registered award covering a specific type of occupation.

10. Mr Oiveka, for the plaintiffs, submitted that the plaintiffs are deemed by Section 10(1) to be ‘oral contract employees’ as they were employed as casual workers by the same employer for more than six days in one month. Ms Wape did not contest that proposition, and it is clearly correct. This means that Division III.3 (oral contracts) of the Employment Act applied to the plaintiffs. 

Employment Act, Division III.3: Sections 15, 16, 17

11. Division III.3 contains three sections. They state:

15.	Record of terms, etc., of employment.

(1)	Where an employer and an employee enter into an oral contract of service, the employer shall, at the time of the engagement, make a written record of the terms and conditions of the contract.

(2)	Where a dispute arises as to the terms and conditions of an oral contract of service, and the employer fails to produce a record under Subsection (1), a statement by the employee as to the terms and conditions of the contract shall be conclusive evidence of those terms and conditions unless the employer satisfies the Secretary or an Arbitration Tribunal established under the Industrial Relations Act to the contrary.

16.	Period of oral contract.

Notwithstanding any agreement to the contrary, an oral contract of service shall be deemed to be for the period by reference to which wages are paid.

17.	New oral contract on expiration of contract.

Each party to an oral contract of service that expires under Section 16 shall, immediately on the expiration of the contract, be deemed to have entered into a new oral contract of service for a further period of the same duration and subject to the same terms and conditions as the expired contract unless—

(a)	notice to terminate the employment under Section 34 has previously been given and—

(i)	the period of notice has expired; or
(ii)	payment of wages instead of notice has been made; or

(b)	the contract has been summarily terminated by either party for lawful cause.

Application of Section 15

12. The significance of the plaintiffs’ status as oral contract employees is that Section 15(1) required Telikom to make a written record of the terms and conditions of their contracts of service at the time of their engagement. 

13. Section 15(2) provides a way of resolving any dispute about what the terms and conditions of a particular oral contract are. If the employer cannot produce a record of the terms and conditions under Section 15(1), the employee’s statement as to what the terms and conditions were becomes conclusive evidence unless the employer is able to satisfy the Secretary or an arbitration tribunal to the contrary.

14. I consider that all of the elements of Section 15(2) apply in this case. First a dispute arose upon termination of the contract as to its terms and conditions and has continued to the trial. Secondly, the employer, Telikom, has failed to produce any record under Section 15(1) of the terms and conditions of the plaintiffs’ contracts at engagement. Thirdly, the plaintiffs have made statements as to the terms and conditions of their contract as they understood them. Those statements were made in at least five different letters to Telikom, which have all been admitted into evidence. Fourthly, there is no evidence that Telikom has satisfied the Secretary or an arbitration tribunal that the terms and conditions of the contract are other than those stated by the plaintiffs.

15. The purpose of Section 15 was explained by Kandakasi J in Peter Kirin and KK Farmers v John Paroda (2004) N2599: to achieve certainty in the terms and conditions of a person’s employment in informal contracts. The section imposes obligations on the employer and provides that if those obligations are not discharged, what the employee says his or her terms and conditions of employment were becomes conclusive evidence of them.

16. In Roger Baboa v PNG Communication Workers Union (2006) N3043 I qualified Section 15(2) by requiring that the employee’s statement as to the terms and conditions of the contract must not be so unreasonable that no reasonable person could believe that they were actually implied conditions of employment. Here, what the plaintiffs have stated passes the test of reasonableness. They believed that ‘permanent’ Telikom employees who were doing the same sort of jobs as themselves were being paid allowances and benefits that rewarded them for the peculiar sort of work that they were doing. 

17. I conclude that Section 15(2) applies and that the plaintiffs’ statements as to the terms and conditions of their employment are conclusive evidence of the terms and conditions of their contracts of employment. 

18. That means that they should have been paid hardship allowance, camping allowance, risk allowance, overtime and money in lieu of leave.

Result of failure to pay allowances and benefits 

19. Telikom’s failure to pay those allowances and benefits is sufficient to give rise both to a cause of action in breach of contract and to establish that Telikom acted harshly or oppressively contrary to Section 41 of the Constitution. The reason I say they were given harsh, and oppressive, treatment, is that the plaintiffs tried on numerous occasions to have their grievances resolved but were consistently ignored by Telikom management. The plaintiffs were making reasonable, not outrageous, claims. Telikom could have solved the problem a long time ago had it responded to the plaintiffs and set out clearly what the terms of their employment were. Telikom, however, failed to appreciate the significance of Sections 10 and 15 of the Employment Act, ignored the plaintiffs, kept treating them as casual workers and therefore failed to protect itself against a breach of contract or Section 41 action.

20. As the plaintiffs have brought their case under Section 41, and have not framed it as a breach of contract action, I will declare, in terms of the relief sought in the originating summons, that Telikom’s acts, in paying the plaintiffs as casual workers for more than four years without paying them the sorts of allowances and benefits paid to ‘permanent’ Telikom employees, was harsh and oppressive and therefore unlawful.

CONSEQUENCES OF ILLEGALITY

21. What is the effect of Telikom’s acts being declared unlawful? 

22. Mr Oiveka submitted that I should declare that the plaintiffs are entitled to damages under Sections 57(1) and (3) of the Constitution, the provisions under which the National Court and the Supreme Court protect and enforce the human rights and freedoms guaranteed by the Constitution. 

23. Sections 57(1) and (3) (enforcement of guaranteed rights and freedoms) state:

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(3)	A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

24. Mr Oiveka submits that the freedom from harsh and oppressive acts guaranteed by Section 41 is a human right and that a breach of such a right, as happened in this case, can be enforced by an award of damages against Telikom.

25. Ms Wape’s submission did not cater for the possibility that the court would find in favour of the plaintiffs on the threshold issue of whether Telikom acted harshly or oppressively. However, the argument that could reasonably have been made, on the strength of the judgments of Kidu CJ and Kapi DCJ in SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329, is that Section 41 does not create a basic right, as such, and is not enforceable under Section 57. It is only enforceable under Sections 23 or 155(4) of the Constitution.

26. Section 23 (sanctions) states:

(1)	Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a)	impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or

(b)	in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)	Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)	Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

27. Section 155(4) (the national judicial system) states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

28. There was a strong dissenting opinion in Raz v Matane by Amet J, who held that Section 41 did create a basic right that could be enforced under Section 57. As I said in Wilson Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112, I regard that opinion as quite compelling. However I am not at liberty to adopt it in the present case, being bound as I am to follow the majority opinion. That means that I cannot make a declaration that the plaintiffs are entitled to damages under Section 57.

29. I do not, however, feel the same constraint regarding Section 23 of the Constitution. Paraphrasing Section 23(1) for the purposes of the present case, it states:

Where any provision of a Constitutional Law [such as s 41] prohibits or restricts an act [namely harsh or oppressive acts] … then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision [they do not, in this case] the National Court may … in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person … [such as Telikom] who is in default, … for a breach of the prohibition [Telikom is in breach of s 41] … and may make such further order in the circumstances as it thinks proper.

30. Section 23(1) applies to this case and I consider that it is appropriate to order Telikom to compensate the plaintiffs for the losses and inconveniences they endured as a consequence of Telikom’s unlawful acts. 

31. In drawing that conclusion I have noted that orders under Sections 23 or 155(4) were not expressly sought in the originating summons. As a matter of practice and procedure the general rule is that the court does not grant relief other than what a plaintiff expressly seeks. However, the originating summons makes it clear what relief, in substance, the plaintiffs are seeking. They want compensation – damages – for being hard done by, by their former employer. They have made it clear of what they want and I do not think any prejudice has been done, or will be done, to the defendant, by the court making an order under a provision of the Constitution other than the one that was specifically relied on in the originating summons.

32. I therefore order under Sections 23(1)(b) and 155(4) of the Constitution, the making of compensation by Telikom.

HOW MUCH COMPENSATION?

33. The plaintiffs have not articulated how much compensation or the amount of damages that they are claiming and therefore one way of resolving this case would be to order it to proceed to an assessment, ie my findings would be restricted to the question of liability and there would be another trial. I do not think that is the best way forward with this case. It is a novel one. The plaintiffs have approached the court in a different way to most disgruntled employees who bring their former employers to court claiming unpaid entitlements. I have crafted an order that is perhaps unprecedented but which, I consider, is fair and just to both sides of the dispute. I think the best thing is to bring the case to a speedy conclusion, so I will proceed to make an order for a specific amount of compensation to be paid.

34. Having considered all the evidence, the amount of compensation I think is fair and reasonable to start with, is 25% of the total amount of the wages paid to the plaintiffs during their period of employment. That is, I am estimating that they should have been paid allowances and benefits equal to 25% of their fortnightly wage of K218.40. On top of that, they should be compensated for the inconvenience and stress caused by having their legitimate grievances continually ignored by Telikom. A sum of K5,000.00 each is appropriate for that.

35. Thus, I will order compensation for:

(A)	unpaid allowances and benefits = 0.25 x K218.40 x 112.6 fortnights (26 fortnights x the period of employment of 4.33 years) = K6,147.96; PLUS

(B)	inconvenience and stress = K5,000.00;

(C)	being total compensation of K11,147.96 each.

36. There is no claim for interest so I will not award any. The amount of compensation is just, fair and appropriate. 

JUDGMENT

37. The Court orders the making of compensation by the defendant to the plaintiffs in the sum of K11,147.96 each, which must be paid as a lump sum to each plaintiff within 30 days after the date of entry of judgment. 

Judgment accordingly.
____________________________

Public Solicitor: Lawyer for the Plaintiffs
Telikom Corporate Legal Services: Lawyer for the Defendant