N3832

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CIA NO 104 0F 2009

FREDERICK MATHIES
First Appellant

KIMBE BAY SHIPPING AGENCIES LIMITED
Second Appellant

V

JOEL KORINA
Respondent

Kimbe: Cannings J
2009: 11, 31 December

APPEAL

LAW OF EMPLOYMENT – contract of service – damages – assessment of damages – whether restricted to notice period provided for under the Employment Act. 

APPEALS – appeal from District Court – consequences of upholding grounds of appeal – appeal should only be allowed if there has been a substantial miscarriage of justice – power of National Court to exercise powers of District Court – District Courts Act, Section 230.

The respondent was employed by a company as a driver. His employment was terminated and he brought an unlawful dismissal action against his employer (the appellants) in the District Court and won: the District Court ordered the appellants to pay damages, which were subject to assessment. The appellants appealed to the National Court against that order but the appeal was dismissed for want of prosecution and the matter returned to the District Court for assessment of damages. The District Court awarded the respondent K1,255.80 damages (being unpaid termination payments) + K100.44 interest + K656.25 costs = a total judgment sum of K2,012.19. The appellants appealed against that order, their primary argument being that the District Court had used wrong salary figures and failed to recognise that in fact the respondent had been paid all that was due to him under the Employment Act and therefore his damages should have been assessed as zero. Another ground of appeal concerned costs, the amount of which was argued to be excessive.

Held:

(1)	The primary ground of appeal was upheld as it was clear that the respondent had been paid what he was entitled to during the notice period, which was two weeks.

(2)	The ground of appeal concerning costs was dismissed as the appellants failed to show that the amount was manifestly excessive.

(3)	However, under the District Courts Act, Section 230(2) an appeal shall only be allowed where it appears to the National Court that there has been a substantial miscarriage of justice. In the present case, no substantial prejudice had been done to the appellants and there was no substantial miscarriage of justice.

(4)	The District Court had assessed damages on the presumption that the respondent was only entitled to wages and unpaid recreation leave calculated by reference to the notice period. This was a flawed presumption, given the terms of the order under which the appellants were liable to pay damages and the purpose of an award of general damages in an unlawful dismissal case.

(5)	The award of K1,255.80 for general damages was not excessive. It was a modest and reasonable sum. Therefore it is in the interests of justice to leave the order of the District Court intact. The appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290
Livingston v Raywards Coal Co [1880] 5 App Cases 25
MVIL v Maki Kol (2007) SC902
Vere Kialo and Chemica Didiman v Bernard Tiau CIA No 46/2006, 16.02.07
Vitus Sukuramu v New Britain Palm Oil Ltd (2007) N3124
UPNG v Duwaino (2009) N3723

APPEAL

This was an appeal against an assessment of damages by the District Court in an unlawful dismissal case.

Counsel

J Kais, for the appellants
J Korina, the respondent, in person

31 December, 2009

1. CANNINGS J: This is an appeal against an assessment of damages by the District Court in an unlawful dismissal case.

2. The complainant in the District Court was the respondent, Joel Korina, who was employed as a prime mover operator/driver by the second appellant, Kimbe Bay Shipping Agencies Ltd (KBSA). After he had been employed for 14 months his employment was terminated on 22 May 2007 on the ground that he had breached company policy regarding consumption of alcohol six hours before commencing duties, thereby causing an accident in which a company truck was damaged.

3. He commenced proceedings in the District Court against the company and a senior manager, the first appellant, Frederick Mathies, seeking unpaid entitlements and damages in tort for unlawful termination. His complaint was that he was terminated without valid reasons. The presiding Magistrate, his Worship the late Mr M Kapin SPM, upheld the complaint and made the following order on 20 May 2008:

1	Complaint proved.

2	Defendants liable to pay damages.

3	Matter adjourned for assessment of damages.

4. The appellants appealed against that order to the National Court, before damages were assessed, in CIA No 144 of 2008. They failed to prosecute the appeal diligently and I dismissed it on 23 April 2009 for want of prosecution and ordered that the matter return to the District Court for assessment of damages.

5. The matter then went before his Worship Mr P Baiwan who ordered on 11 June 2009 in order No 1 in DC No 247/2007 that KBSA pay to the respondent:

•	K1,255.80 damages (being unpaid termination payments) +

•	K100.44 interest +

•	K656.25 costs

•	= a total judgment sum of K2,012.19. (Note: the correct total is K2,012.49 but as neither party takes issue with this the total amount should be regarded as K2,012.19.)

This appeal is against that order.

GROUNDS OF APPEAL

6. There are many points raised in the notice of appeal but they can be boiled down to two.

7. The primary ground of appeal is the learned magistrate used wrong salary figures and failed to recognise that in fact the respondent had been paid all that was due to him under the Employment Act. For the pay period ending 26 May 2007 his finish pay was calculated as:

•	K135.00 for six days actually worked +

•	K225.00 (normal fortnightly wage) as two weeks pay in lieu of notice +

•	K53.25 for unpaid recreation leave =

•	K413.25 total.

8. The appellants argue that that was all that he was entitled to as the amount of damages was limited to what he should have been paid in the notice period of two weeks provided for under the Employment Act. He was paid out the correct amount therefore damages should have been assessed as zero.

9. The other ground of appeal concerned costs, the amount of which was argued to be excessive.

GROUND 1: CALCULATION OF UNPAID ENTITLEMENTS

10. I uphold this ground of appeal as I agree that the respondent was paid what he was entitled to during the notice period, which was two weeks money in lieu of notice and his unpaid recreation leave.

11. I am satisfied that, with respect, Mr Bawain used wrong salary figures and failed to recognise that in fact the respondent had been paid all that was due to him under the Employment Act. Therefore his unpaid entitlements claim should have been assessed as zero.

Ground 1 is upheld.

GROUND 2: AWARDING OF COSTS WAS EXCESSIVE

12. The appellants say that there was no proper basis for awarding the respondent K656.25 costs as he represented himself in the District Court.

13. His Worship provided a break-up of costs as:

•	Legal costs K281.25 +

•	Summonses K250.00 +

•	Transport K125.00.

14. His Worship obviously considered that those amounts were reasonable and I am in no position to rule otherwise. The decision to award costs is a matter of discretion for the trial magistrate, as is the decision on the amount of costs. I am not satisfied that this was an exercise of discretion so unreasonable that no reasonable magistrate could have made that award.

Ground 2 is dismissed.

WHAT ORDERS SHOULD BE MADE?

15. I have upheld one of the two grounds of appeal – the primary ground – and now I have to decide whether to uphold the appeal and make the order sought by the appellants, which is to quash the District Court order and order that the respondent is not owed any money by the appellants.

16. Section 230(2) (power of National Court on appeal) of the District Courts Act states that an appeal shall only be allowed if it appears to the National Court that there has been a substantial miscarriage of justice. In this case I do not consider that there has been.

17. The District Court assessed damages on the presumption that the respondent was only entitled to wages and unpaid recreation leave calculated by reference to the notice period. This was a flawed presumption, given the terms of the order of Mr Kapin of 20 May 2008, which remained in force following the dismissal of the appeal against it. Mr Kapin's order was not restricting the assessment to the value of unpaid entitlements. His Worship was upholding the claim for "damages in tort" set out in the respondent's statement of claim/complaint filed in 2007. By claiming "damages in tort" the respondent was claiming damages for distress and inconvenience and other sorts of injuries conventionally brought under a claim for general damages for wrongful dismissal. That is what, with respect the learned magistrate should have been assessing and his Worship should have compared the facts of this case to other District Court cases and arrived at an award of general damages.

18. Two recent Kimbe District Court cases that were the subject of appeals to the National Court would have been provided useful points of comparison:

•	In Vere Kialo and Chemica Didiman v Bernard Tiau CIA No 46/2006, 16.02.07 the unlawfully terminated employee was awarded K1,000.00 general damages by the District Court and on appeal the award was increased to K2,000.00.

•	In Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290 the unlawfully terminated employee was awarded K5,000.00 general damages by the District Court and on appeal that award was left intact.

19. An award of K1,255.80 looks quite modest by comparison. It is not an unreasonable sum. So I do not think the appellants have been prejudiced by the error that the learned magistrate made. If anything, they have been put at an advantage by the error.

20. As I said in UPNG v Duwaino (2009) N3723 and Sukuramu v New Britain Palm Oil Ltd (2007) N3124 when an employee succeeds in proving that their employment has been unlawfully terminated, they establish a cause of action in breach of contract. The employee is therefore entitled to damages – if damages have been sought in their statement of claim – which is a remedy aimed at compensating them for the losses suffered as a result of the breach of contract. In any civil action, the purpose of an award of damages is to put the innocent party in the same position, as far as possible, they would have been in if the wrongdoer had not committed the wrongful act (Livingston v Raywards Coal Co [1880] 5 App Cases 25; MVIL v Maki Kol (2007) SC902). It follows that the dismissed employee is to be compensated not only for the wages that they have lost for the length of the notice period but also for the pain, suffering and inconvenience caused to them by the employer's unlawful act. Losing one's job is invariably a dramatic and often a traumatic event in a person's life, especially in PNG where jobs are scarce and many people other than the employee's immediate family are dependent on the income generated by the job. When a person is wrongfully – ie unlawfully – dismissed, the pain and anguish are magnified. Such a person deserves an adequate award of damages to compensate them for the injury to their livelihood and emotions and those of their dependants caused by the wrongful dismissal.

21. In the present case the respondent proved in the District Court that he was unlawfully dismissed. The appeal against that finding has been dismissed. So the issue of liability is closed. When the matter returned to the District Court for assessment of damages an error was made by the learned magistrate but in the final analysis the assessment that his Worship arrived at was reasonable. No injustice has been done.

22. I could return the matter, again, to the District Court under Section 230(1) of the District Courts Act but I do not think it is anyone's interests to do that. The best thing to do is to leave the order of the District Court intact. It is in the interests of justice to dismiss the appeal and bring this long-running saga to finality.

ORDER

(1)	The appeal is dismissed.

(2)	The appellants shall comply with order No 1 of the Order of the District Court of 11 June 2009 in DC No 247/2007 within 14 days.

(3)	The parties shall bear their own costs of this appeal.

(4)	Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Appeal dismissed.
_____________________

Pryke & Janson: Lawyers for the appellants
Lawyers for the respondent: 	Nil