N5821
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1274 0F 2012

BETWEEN

REX TOMARA
Plaintiff

AND
JOB DAMPEN, PHILIP KINAU, SECURITY INVESTIGATION OFFICERS, OK TEDI MINING LTD SECURITY DIVISION
First Defendants

PEMA PONGO, SUPERVISOR, AIRPORT SECURITY,
OK TEDI MINING LTD SECURITY DIVISION
Second Defendant

TREVOR GREEN, EXECUTIVE MANAGER, ASSET PROTECTION,
OK TEDI MINING LTD SECURITY DIVISION
Third Defendant

OK TEDI MINING LIMITED
Fourth Defendant

Waigani: Cannings J
2014: 29 July, 23 October, 28 November

HUMAN RIGHTS – proscribed acts – freedom from arbitrary search and entry – right to privacy – Constitution, Sections 41, 44, 49 – application of human rights in employment setting.

LAW OF EMPLOYMENT – wrongful dismissal – whether employer must give right to be heard to employee prior to termination for cause

The fourth defendant company employed the plaintiff as a security guard in its gold room and suspected him of smuggling gold. The company's security division officers (the first and second defendants) conducted a body search of him as he was about to board a flight at the airport. The plaintiff initially agreed but after the search began, withdrew consent and left the airport. He later returned and participated in an interrogation by the company's asset protection officers who then took him to his employer-provided accommodation and in his presence searched it. Those officers later that day obtained a search warrant in respect of the plaintiff's village house and in the presence of his wife and with the assistance of Police officers, searched the house. No incriminating evidence was found during the body search or the searches of the employer-provided accommodation or the village house and the plaintiff denied that he was involved in gold smuggling. The next day the company, acting on a recommendation from the head of the asset protection division (the third defendant) terminated the plaintiff's employment without notice and without giving him a right to be heard, on various grounds including that he was suspected of smuggling gold and could no longer be trusted. The plaintiff sued the company plus those persons involved in the body search, the interrogation session and the search of his employer-provided accommodation and his house and the decision to terminate his employment. The plaintiff argued that on four occasions the defendants breached his human rights, in particular the rights to protection from proscribed, particularly harsh or oppressive, acts (Constitution, Section 41), freedom from search of his person and property and entry of his premises (Constitution, Section 44) and the right to privacy (Constitution, Section 49). He also argued that he had been unlawfully terminated without notice and without good cause. He claimed damages in respect of two causes of action: (1) breach of human rights, on four occasions: (a) body search at the airport, (b) interrogation session, (c) search of employer-provided accommodation and (d) search of his house; (2) wrongful dismissal, ie breach of the contract of employment. This was the trial on liability.

Held:

(1)	Section 41 of the Constitution proscribes (ie prohibits) and gives protection against seven sorts of acts, including those that are harsh or oppressive or disproportionate to the requirements of the particular case.

(2)	Under Section 44 of the Constitution every person has the right not to be subjected to the search of his property or person except where the search is conducted (i) in accordance with a law regulating or restricting the exercise of that right that complies with Sections 44(a) or (b), or (ii) with the express or implied consent of the person whose person or property is searched.

(3)	Under Section 49 of the Constitution every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except where his privacy is breached (i) in accordance with a law regulating or restricting the exercise of that right and complying with Section 38 of the Constitution, or (ii) with the express or implied consent of the person whose privacy is breached.

(4)	An employee has no right to be heard before his employer decides to terminate his employment unless there is a term of the contract of employment providing for such a right. No such right exists in the Constitution or any other written law or under the underlying law (New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946 applied).

(5)	The defendants did not breach any of the plaintiff's human rights on any of the four occasions alleged by the plaintiff, as: (a) the body search was conducted in accordance with the conditions of the plaintiff's employment and therefore with the consent of the plaintiff, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution and did not involve a breach of the freedom from arbitrary search; (b) the plaintiff freely participated in the interrogation session; (c) the search of the employer-provided accommodation was conducted in accordance with the conditions of the plaintiff's employment and therefore with the consent of the plaintiff, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution and did not involve a breach of the freedom from arbitrary search; and (d) the search of the village house was conducted in accordance with a search warrant issued by the District Court under the Search Act, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution.

(6)	The defendant was not obliged to give the plaintiff a right to be heard prior to terminating the contract, there being no term of his contract of employment conferring that right.

(7)	The plaintiff failed to establish a cause of action in breach of human rights or wrongful dismissal. The proceedings were entirely dismissed and the parties ordered to bear their own costs (in view of the validity and importance of the issues raised by the plaintiff, the genuineness of his grievance and the relative economic positions of the parties).

Cases cited

The following cases are cited in the judgment:

Ayleen Bure v Robert Kapo (2005) N2902
Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290
Bernbert Toa v Ly Cuong-Long (2008) N3471
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Meta v Kumono (2012) N4958
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946
Pain v The State (2012) N4708
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Podas v Divine Word University (2011) N4395
Vitus Sukuramu v New Britain Palm Oil Ltd (2007) N3124

STATEMENT OF CLAIM 

This was a trial on liability to determine whether the defendants are liable in damages for breach of human rights and/or wrongful dismissal.

Counsel:

J Kolo, for the plaintiff
A Mana & E Rere, for the defendants

28th November, 2014

1. CANNINGS J: The plaintiff Rex Tomara is suing his former employer Ok Tedi Mining Ltd (the fourth defendant) and a number of its asset protection officers (the first, second and third defendants) for breach of human rights and wrongful dismissal. This is the judgment on liability.

2. The company employed the plaintiff as a security officer at Tabubil, Western Province, from 1997 to 2012. His employment was terminated on 1 February 2012 as he was suspected of pilfering gold. There were four incidents the day before, 31 January 2012, which were connected to termination of his employment:

(a)	the plaintiff was subject to a body search as he was about to board a flight at the airport;
(b)	he was subject to interrogation by the company's asset protection officers;
(c)	his company-provided accommodation was searched, in his presence;
(d)	his village house was searched, in his absence.

3. The plaintiff claims that the defendants breached his human rights during those incidents. He also claims that his termination was unlawful. He has commenced proceedings against the defendants, claiming damages. Three issues arise:

1. Has the plaintiff established a cause of action for breach of human rights?

2. Has the plaintiff established a cause of action in wrongful dismissal?

3. What declarations or orders should the Court make?

1. Has The Plaintiff Established A Cause Of Action For Breach Of Human Rights?

4. In the statement of claim the plaintiff alleges that the defendants breached six of his human rights:

•	right to freedom (Constitution, s 32);
•	freedom from inhuman treatment (Constitution, s 36);
•	proscribed acts (Constitution, s 41);
•	liberty of the person (Constitution, s 42);
•	freedom from arbitrary search and entry (Constitution, s 44);
•	right to privacy (Constitution, s 49).

5. At the trial Mr Kolo, for the plaintiff, focussed on the alleged breaches of Sections 41, 44 and 49 and submitted that in each of the four incidents on 31 January 2012 the defendants breached the human rights conferred by those provisions of the Constitution.

(a)	The Airport Incident

6. The plaintiff has given evidence that he went to Tabubil Airport at 7.00 am to board a chartered flight to Port Moresby for a break. He and his cargo passed through the electronic security check including metal scanners without incident. However as he was waiting in the departure lounge he was confronted by Job Dampen and Philip Kinau, officers of the company's Asset Protection Division (the first defendants) and ordered to go to the security room so that they could conduct a body search and search his bags. He says that they forcefully pulled him into the room and ordered him to remove his clothes. He was totally naked and strip-searched in full view of other staff and passengers and curious onlookers. The contents of his bags were emptied on to the floor and each item was checked

7. I reject that version of events as it is too difficult to believe, it is uncorroborated by credible evidence and it is contradicted by the evidence of Job Dampen, Philip Kinau and Pema Ponga, which I find more detailed, believable and credible.

8. I find that what actually happened is that the plaintiff was asked – not ordered – to submit to a body search and that he initially consented to the search. He went voluntarily with the company officers into a private room – he was not forced into the room. The officers explained that they were investigating alleged pilfering by security staff of gold concentrate. The search was conducted in private behind a closed door. The plaintiff was not exposed to public view. The plaintiff himself emptied his bags and allowed the contents to be checked. He took off his shirt, exposing a bandage around his waist, which gave rise to suspicion. He was not naked. He was asked to take off his shorts but he declined and said that he needed to go to the toilet. The officers followed him to the toilet and at that point the plaintiff made it clear that he was withdrawing consent to any further search. There was a verbal altercation and he left the room and the airport in a hurry, leaving his bags behind. He was never strip-searched. He returned an hour or so later and was taken away by the company's officers for an interrogation session. No gold concentrate or any other contraband was found on him or in his cargo during the airport incident.

9. I find that two company documents, the Security Operations Manual (Tabubil Airport) and Security Operations Manual (Standard Operating Procedures), provided for the type of search that the company officers attempted to conduct at the airport. I now determine the allegations of human rights breaches based on those findings of fact.

(i)	Alleged breach of the right to be protected against harsh or oppressive conduct etc under Section 41 of the Constitution.

10. The plaintiff alleges that the company officers treated him harshly and oppressively and without human dignity, in a way that breached his rights under Section 41 (proscribed acts) which 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.

11. 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:

•	harsh; or
•	oppressive; or
•	not warranted by the requirements of the particular circumstances; or
•	disproportionate to the requirements of the particular circumstances; or
•	not warranted by the requirements of the particular case; or
•	disproportionate to the requirements of the particular case; or
•	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind (see Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Meta v Kumono (2012) N4958, Pain v The State (2012) N4708).

12. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it.

13. The plaintiff has failed to discharge that burden in relation to all seven categories of proscribed acts. I find that the company officers acted reasonably and in accordance with the company's security operations procedures, which formed part of the plaintiff's conditions of employment. He had worked as a security officer for the company for 15 years, so he would have known that he was liable to be subject to this sort of search from time to time. I find that the officers treated the plaintiff with dignity and respect and became suspicious on reasonable grounds upon discovering the bandage. It was not unreasonable for them to accompany him to the toilet. They did not engage in harsh or oppressive conduct or act in a way unwarranted or disproportionate to the circumstances of the case that they were dealing with or otherwise proscribed by Section 41(1) of the Constitution. 

(ii)	Alleged breach of the right to be protected against arbitrary personal search under Section 44 of the Constitution.

14. The plaintiff alleges that the company officers had no legal authority to search his body and his personal effects and that he was forced to undergo the search. Therefore they breached his right to be protected against arbitrary search of his person under Section 44 (freedom from arbitrary search and entry) which states:

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—

(a) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(b) the affairs of a company in accordance with a law relating to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).

15. Section 44 of the Constitution confers on every person in Papua New Guinea the right not to be subjected to the search of their property or person except in two situations. The first is expressly provided for by Section 44: where the search is conducted in accordance with a law regulating or restricting the exercise of that right that complies with Sections 44(a) or (b). An example of a law falling into this category is the Search Act Chapter No 341. The second exception is not expressly provided for by Section 44, but it must necessarily be implied, and that is where a search is conducted in accordance with the consent of the person whose person or property is searched.

16. It is possible for a person to give away his rights under Section 44 or excuse conduct that might otherwise amount to a breach of those rights. That is what happened in this case. The plaintiff was not forced against his will to be searched. He consented, and he did so expressly. He also consented impliedly, and just as effectively, by entering into a contract of employment with his employer, which included terms that provided for precisely the situation the plaintiff found himself in. He was suspected of pilfering gold, so the company's asset protection officers invoked the standard operating procedures and the plaintiff was subject to a body search. The defendants did not breach the plaintiff's rights under Section 44 of the Constitution.

(iii)	Alleged breach of the right to privacy under Section 49 of the Constitution.

17. The plaintiff alleges that the company officers invaded his privacy by forcing him to undergo the search. Therefore they breached his right to privacy under Section 49 (right to privacy) which states:

Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

18. Section 49 of the Constitution confers on every person in Papua New Guinea the right to reasonable privacy in respect of four types of matters:

•	private life;
•	family life;
•	communications with other persons;
•	personal papers and effects.

19. As in the case of the right to protection against arbitrary search and entry and other "qualified rights" in Subdivision III.3.C of the Constitution (as distinct from "fundamental rights" in Subdivision III.3.B) the right to privacy is subject to exceptions. The first is expressly provided for by Section 49: where the exercise of the right is regulated or restricted by a law that complies with Section 38 of the Constitution. The second exception is not expressly provided for by Section 49 but it must (as with Section 44) be necessarily implied: where a person consents to the breach of his privacy; which can be expressed or implied.

20. I find that in this case it is unnecessary to consider whether either of the exceptions to the right to privacy applied as nothing that the defendants did at the airport interfered with the plaintiff's right to privacy in respect of any of the four types of matters covered by Section 49. The defendants did not breach the plaintiff's rights under Section 49 of the Constitution.

(b)	The interrogation session

21. I accept the defendants' evidence and find that after he returned to the airport at 9.00 am the plaintiff was interrogated by the asset protection officers. It was made clear to him that he was still suspected of pilfering gold, although by this time he had had ample opportunity to discard incriminating evidence that he might have been carrying, so no further attempt was made to search his body. The interrogation session finished at 9.40 am and the plaintiff was told that the asset protection officers would go to his employer-provided accommodation and search it. The plaintiff cooperated in the interrogation.

22. I find that the asset protection officers who conducted the interrogation did not:

•	act harshly or oppressively or act in any way unwarranted or disproportionate to the circumstances of the case that they were dealing with or otherwise proscribed by Section 41(1) of the Constitution;

•	breach the plaintiff's right under Section 44 of the Constitution to protection from search of his person or property;

•	breach the plaintiff's right to privacy under Section 49 of the Constitution.

(c)	Search of employer-provided accommodation

23. I accept the defendants' evidence and find that after the interrogation session ended the asset protection officers went to the plaintiff's room, N Donga, Room 9 and searched it in his presence. It was explained to him that the search was being conducted in accordance with standard operating procedures. He did not resist. He cooperated. The search took place in his presence. The search began at 10.00 am and took ten minutes. Nothing incriminating was found.

24. I find that the asset protection officers who conducted the search did not:

•	act harshly or oppressively or act in any way unwarranted or disproportionate to the circumstances of the case that they were dealing with or otherwise proscribed by Section 41(1) of the Constitution;

•	breach the plaintiff's right under Section 44 of the Constitution to protection from search of his person or property or entry of his premises as he impliedly consented to the search by entry into a contract of employment that included amongst its terms provision for this type of search in these circumstances;

•	breach the plaintiff's right to privacy under Section 49 of the Constitution.

(d)	Search of village house

25. I accept the defendants' evidence and find that the asset protection officers liaised with members of the Police Force and applied to a Magistrate of Tabubil District Court for a search warrant in respect of the plaintiff's village house. The Court issued a warrant and at 5.00 pm the members of the Police Force executed the warrant by gaining entry to the plaintiff's house at New Wangbin village and searched it. The warrant was executed in the absence of the plaintiff and without his knowledge, but in the presence of his wife, to whom the warrant was explained. The search was observed by the asset protection officers and by a community leader. Nothing incriminating was found. The defendants' evidence is that a small container normally used to store gold concentrate was found, however I find that to be of no significance.

26. I find that the asset protection officers who liaised with the Police to obtain and execute the search warrant did not:

•	act harshly or oppressively or act in any way unwarranted or disproportionate to the circumstances of the case that they were dealing with or otherwise proscribed by Section 41(1) of the Constitution;

•	breach the plaintiff's right under Section 44 of the Constitution to protection from search of his property or entry of his premises as the warrant was obtained and executed in accordance with the Search Act;

•	breach the plaintiff's right to privacy under Section 49 of the Constitution.

Conclusion as to breach of human rights

27. The plaintiff has not proven that any of his human rights were breached.

2. Has The Plaintiff Established A Cause Of Action In Wrongful Dismissal?

28. The plaintiff's employment was terminated on 1 February 2012 without notice and without him being given a right to be heard on the allegations against him. The termination letter gave a number of reasons for his termination, including that he was suspected of smuggling gold concentrate, failed to obey lawful instructions to submit to a body search, had committed a minor assault on an asset protection officer and he no longer held the trust of the company's management.

29. The plaintiff claims that the reasons given for his termination are without substance and that the first, second and third defendants were motivated by suspicion, malice, jealousy and hatred. He also claims that he was entitled to a right to be heard on the allegation that he was smuggling gold, that his right to be heard was an implied term of his contract of employment and therefore the defendants were guilty of a breach of contract sufficient to sustain a cause of action in wrongful dismissal. To support these arguments Mr Kolo relied on my decision, dated 16 February 2007, in Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124, in which I formulated a new rule of law, appropriate to the circumstances of the country, under the Underlying Law Act 2000. I ruled that the 'fire at will' principle of the common law that allows employers to terminate a contract of employment for any reason without giving a right to be heard and without providing reasons was no longer appropriate to the circumstances of Papua New Guinea. I ruled that the implied terms of a contract of employment include that the principles of natural justice and the constitutional right of protection against harsh or oppressive or other proscribed acts apply. That meant that an employee had a right to be heard before termination of employment. I applied that rule in several cases that subsequently came before me (eg. Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290, Bernbert Toa v Ly Cuong-Long (2008) N3471).

30. On 30 October 2008 in New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946 the Supreme Court (constituted under Section 3 of the Supreme Court Act by two Judges, Sakora J and Lay J) upheld an appeal by the employer against that new rule. My decision in the National Court was overturned. The Supreme Court ruled that the National Court had in the circumstances of that case no power to develop the underlying law as the Supreme Court had already declared the underlying law – reaffirming the fire-at-will principle – in Jimmy Malai v PNG Teachers Association [1992] PNGLR 568. As my decision was overruled, the underlying law has, as I explained in Podas v Divine Word University (2011) N4395, reverted to the common law position: the fire-at-will principle has been reinstated. An employer can hire and fire at will, with or without good reasons and without giving a right to be heard. These are the general principles, which can be displaced by the terms of a contract of employment (eg Ayleen Bure v Robert Kapo (2005) N2902). Put simply an employee has no right to be heard before being sacked unless his contract of employment says so. An employee has no right not to be terminated except for good and proper reason unless his contract confers that right.

31. In the present case nothing in the plaintiff's contract gave him a right to be heard. He was not given a right to be heard. That is inconsequential. He argues strenuously that the reasons given for sacking him have no substance. He denies attempting to smuggle gold. He points out that despite all the efforts made to pin something on him, no incriminating evidence was found and he has never been charged by the Police. 

32. I do not intend to comment in detail on the reasons given by the company for the plaintiff's termination or his responses to them as ultimately the views of the Court on these issues are of little consequence. I only need say that in my view the reasons given appeared to be reasonable in the circumstances, given the reasonable suspicion created by the behaviour of the plaintiff on 31 January 2012.

Conclusion as to wrongful dismissal

33. The plaintiff has not proven that he was wrongly dismissed or unlawfully terminated. No cause of action has been established.

3. What Orders Should Be Made?

33. As the plaintiff failed to prove both causes of action he pleaded, the proceedings will be entirely dismissed. In the normal course of events if I applied the rule of thumb as to costs I would order the plaintiff to pay the defendants' costs. However when making any order for costs the court must exercise its discretion according to the circumstances of the case and in the interests of justice. The plaintiff is an individual citizen who has taken on a major corporation, and lost. He has raised some valid and significant constitutional issues. His grievance was genuine. He should not be penalised by being ordered to pay the defendants' costs. I will order the parties to bear their own costs.

ORDER

(1)	It is declared that the plaintiff has failed to establish a cause of action in breach of human rights or in wrongful dismissal.

(2)	All relief claimed in the statement of claim is refused and the proceedings are wholly dismissed.

(3)	The parties shall bear their own costs.

Judgment accordingly,

_________________________________________________________________
Kolo & Associates: Lawyers for the plaintiff 
Allen's Lawyers: Lawyers for the defendants