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Mako v Kimas [2012] PGNC 328; N5130 (4 April 2012)

N5130

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 414 OF 2003

BETWEEN

PETER MAKO
Applicant

AND

PEPI KIMAS, as
SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2012: 22nd June & 2013: 04th April

ASSESSMENT OF DAMAGES – Loss of salaries and entitlements – Claim for superannuation benefits – Losses arising from successful application for judicial review – Dismissal from employment – Decision to dismiss found to be unlawful – Appropriateness of damages – Proof of.

Cases cited:

Peter Mako -v- Pepi Kimas, Secretary for Department of Lands & Physical Planning and The State: OS No 414 of 2003 (Unnumbered & Unreported Judgment of 07th October 2011)
Kippie Kanau Maisan -v- Bank of South Pacific Limited (2009) N3713

Facts

This is an assessment of damages arising from a successful application for judicial review where it was found that the decision of the respondents to dismiss the applicant was unlawful and the respondents were ordered to pay damages to the applicant for loss of salaries and entitlements to be assessed from date of dismissal of 13th January 1994 (excluding payment for first reinstatement on 07th October 1994) to the first date of trial and calculated by the parties and final amount submitted to Court for endorsement. No agreement was reached and matter returned to Court for assessment of damages and decision.

Held:

1. Damages is assessed for loss of salaries, leave entitlements and superannuation from the date of dismissal to the date of decision.

2. The claim for loss of superannuation prior to the date of dismissal is refused because the applicant had contributed to Public Officers Superannuation Fund prior to his termination. He should make a claim to POSF for the period from 1978 to 1993 if POSF refuses to pay: Kippie Kanau Maisan -v- Bank of South Pacific Limited (2009) N3713 referred to.

3. Judgment is entered in the total sum of K241,548.74 as damages for loss of salaries, leave entitlements and superannuation.

4. Judgment is entered in the sum of K15,617.30 as 8% interest from the date of hearing to the date of judgment.

5. The respondents shall pay the costs of the proceedings to be taxed if not agreed.

Counsel:

Mr K Sino, for Applicant
No appearance for Respondents

JUDGMENT

04th April, 2013

1. MAKAIL, J: This is an assessment of damages arising from a successful application for judicial review where it was found that the decision of the respondents to dismiss the applicant was unlawful and the respondents were ordered to pay damages to the applicant for loss salaries and entitlements to be assessed from date of dismissal of 13th January 1994 (excluding payment for first reinstatement on 07th October 1994) to the first date of trial and calculated by the parties and final amount submitted to Court for endorsement: see Peter Mako -v- Pepi Kimas, Secretary for Department of Lands & Physical Planning and The State: OS No 414 of 2003 (Unnumbered & Unreported Judgment of 07th October 2011).

2. Following the Court's decision, no agreement was reached and matter returned to Court for assessment of damages and decision. The law is that the applicant is entitled to damages subject to proof by appropriate evidence. He has filed two affidavits in support of his claim. They are his affidavit in support sworn on 12th June and filed on 20th June 2012 and affidavit of counsel sworn on 12th June and filed on 20th June 2012. Although the respondents were informed of the date for hearing, they did not file any affidavits in response nor did they appear at the hearing. The claim for damages comprised of:

2.1. Loss of salaries,

2.2. Loss of entitlements and

2.3 Loss of superannuation.

3. The assessment of damages is for a specific period. The Court ordered that damages be assessed from date of dismissal of 13th January 1994 (excluding payment for first reinstatement on 07th October 1994) to the first date of trial. The first date of trial is 04th July 2004.

Loss of salaries

4. The claim for loss of salaries is calculated from 13th January 1994 to 04th July 2004 is broken up into different periods to allow for Consumer price index (CPI) adjustments inflation and salary increase on the position of Senior Provincial Lands Officer.

(a) Period 1994 - 1997

The uncontested evidence based on the applicant's pay slip of 14th June 1991 is that, he was paid K828.92 per fortnight on 14th June 1991. This is the only evidence of how much he received as pay. However, it should be noted that the applicant's assessment is based on his gross salary. Income tax has to be taken into account: section 11 of the Income Tax Act, 1959. According to the pay slip of 14th June 1991, the applicant's income tax was K82.06. This is 10% of the gross salary. 10% of the gross salary gives a net salary of K746.86. I calculate the loss from 13th January 1994 to 31st December 1994 as follows:

From 13th January 1994 to 31st December 1994 is 24 fortnights

K746.86 x 24 = K17,924.64 less two fortnights.

1995 for the whole year K746.92 x 26 = K19,418.36

1996 for the whole year K746.92 x 26 = K19,418.36

1997 for the whole year K746.92 x 26 = K19,418.36

Total = K76,179.72

(b) Period 1998 - 2001

In 1998 there was an increase in the salary on the position. This was for CPI adjustments and it increased to K898.81. 10% of the gross salary gives a next salary of K808.44. The loss is:

1998 for the whole year K808.44 x 26 = K21,019.44

1999 for the whole year K808.44 x 26 = K21,019.44

2000 for the whole year K808.44 x 26 = K21,019.44

2001 for the whole year K808.44 x 26 = K21,019.44

Total K84,077.76

(c) Period 2002 - 2004

From 2004 onwards there was a further increase in salary on the position. The gross salary is K931.78. 10% of the gross salary gives a net salary of K838.61 and the loss is:

2002 for the whole year K838.61 x 26 = K21,803.86

2003 for the whole year K838.61 x 26 = K21,803.86

2004 for the whole year K838.61 x 13 = K10,901.93

Total = K54,509.65

Total loss of salary from 1994 to 04th July 2004 is K214,767.13.

5. On the evidence presented, I am satisfied the applicant has proven the claim for loss of salaries and I award K214,767.13.

Loss of entitlements

6. For loss of entitlements, the applicant claimed:

6.1. Loss of annual leave monies,

6.2. Loss of furlough leave monies, and

6.3. Loss of transport costs.

Leave Entitlements

7. The applicant calculated annual leave entitlements for 10 years from 1994 to 2004 as follows: 10 years x 30 weeks or 15 fortnights x K931.78 = K13,976.70. I reject the rate of K931.78 because different salary rates apply for each year. Therefore, I will apply different salary rates for each year taking into account 10% income tax.

From 1994 - 1997 gives a total of 8 fortnights.

8 x K746.86 = K5,974.88.

From 1998 - 2001 gives a total of 8 fortnights.

8 x K808.44 = K6,467.52.

From 2002 - 2004 gives a total of 5 fortnights because the cut off date is 04th July 2004.

5 x K838.61 = K4,193.05.

Total = K16,635.45.

8. I award K16,635.45.

Furlough leave entitlements

9. The claim for furlough leave monies is calculated from 1978 to 2004. This is a period of 26 years. For each year of service, 9 days is accrued. For 26 years, a total of 234 days is accrued. This is equivalent to 33 weeks or 17 fortnights. 17 fortnights x K931.78 = K15,840.26.

10. For this claim, I am of the view that the applicant is not entitled to losses from 1978 to 2003 because there is no evidence that he has not been paid monies in lieu of furlough leave when he had reached 15 years of service in the Public Service. In my view, the claim accrued from the date he was terminated to the date of the Court's decision because that is the period he would have worked if he was not terminated. Any loss accruing to him prior to his termination would be considered a debt and subject of a separate legal proceeding against the State.

11. Between 1994 and 1997, the applicant was earning a gross salary of K828.92 and deducting 10% for income tax gives a next salary of K746.86. This is the salary he received from 1994 to 1997. In 1998 to 2001, the next salary is K808.44 and from 2002 to 2004 is K838.61. I will use them to calculate the loss. I accept for each completed year of service, 9 days of furlough leave accrues. From 1994 to 1997 is a total of 4 years x 9 days gives 36 days. 36 days divided by 7 days gives 5 weeks and divided by 2 weeks gives 2.5 fortnights. 2.5 x K746.86 gives K1,867.15.

12. From 1998 to 2001 is a total of 4 years x 9 days gives 36 days. 36 days divided by 7 days gives 5 weeks and divided by 2 weeks gives 2.5 fortnights. 2.5 x K808.44 gives K2,021.10. From 2002 to 2003 is a total 2.5 years x 9 days gives 22 days. 22 days gives 3 weeks and divided by 2 weeks gives 1.5 fortnights. 1.5 x K838.61 gives K1,257.91.

13. Adding K1,867.15, K2,021.10 and K1,257.91 gives a total sum of K5,146.16. I award this sum.

Leave Transport Costs

14. The next claim is for leave transport costs. The applicant submitted that it is employer's responsibility under labour law to pay for transport during leave for the employee and dependants from work place to their home province. This covered both annual leaves and furlough leave. The total costs is estimated to be in excess of K1,000.00 per leave but using K1,000.00 per year by 10 years is K10,000.00.

15. The applicant has not referred the Court to the relevant law which imposes an obligation on the employer to pay leave transportation costs and the rates of costs from place of employment to the employee's home province. Further, apart from his assertion that he is entitled to this claim, there is no evidence of corroborating his assertion that it would cost K1,000.00 to travel from Mt Hagen to his home province in Southern Highlands. In the absence of these matters, I award a nominal sum of K5,000.00.

16. The total sum awarded for leave entitlements is K26,781.61.

Loss of Superannuation Benefits (POSF)

17. Finally, the applicant claimed loss of superannuation benefits. He said that he contributed K31.44 per fortnight. The evidence of that is found in the copy of pay-slip marked as annexure "C" to his affidavit (supra). K31.44 x 26 fortnights x 10 years = K8,174.40. He further said that he was a member of the Public Officers Superannuation Fund ("POSF") since 1978 when he joined the public service. He had K17,000.00 at the time of his termination. Although I have allowed the applicant to make a claim for superannuation, I am of the view that he is not automatically entitled to it and is refused. I am further of the view that since he had contributed to POSF prior to his termination, he should make a claim to POSF for the period from 1978 to 1993 if POSF refuses to pay: see Kippie Kanau Maisan -v- Bank of South Pacific Limited (2009) N3713.

18. As to the claim for the period 1994 to 2004, I will allow it because that is the period he would have worked and contributed to POSF if he had not been terminated. Using K31.44 as the amount of contribution per fortnight and multiplying it by 26 fortnights per annum for 10 years gives K8,174.40. I award this sum.

Interest

19. As the applicant's primary relief was not damages but reinstatement to his former position, I award interest at 8% from the date of hearing of the assessment of damages to the date of judgment. From 22nd June 2012 to 04th April 2013 is a total of 295 days. The total judgment sum is K241,548.74. 8% of K241,548.74 is K19,323.90 and divided by 365 days gives a daily rate of K52.94. Multiply K52.94 by 295 days gives K15,617.30. I award this sum.

Order

20. The orders are:

1. Judgment is entered in the total sum of K241,548.74 as damages for loss of salaries, leave entitlements and superannuation.

2. Judgment is entered in the sum of K15,617.30 as 8% interest from the date of hearing to the date of judgment.

3. The respondents shall pay the costs of the proceedings to be taxed if not agreed.

_____________________________________________________________
Sino & Co Lawyers: Lawyers for the Applicant
Acting Solicitor General: Lawyers for the Respondents