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Kabug v Monsbourgh [2017] PGNC 204; N6870 (13 September 2017)

N6870

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 617 OF 2013

EDNA KABUG
Plaintiff

V

LACHLAN MONSBOURGH
First Defendant

HANNAH WHEATON
Second Defendant

MONPI COCOA EXPORTS
Third Defendant

Madang: Cannings J

2015: 23 September,

2016: 16 July,

2017: 13 September

LAW OF EMPLOYMENT – wrongful dismissal – whether employer breached written contract of employment by terminating contract for cause and without notice.

The plaintiff’s written contract of employment with the third defendant was terminated for cause and without notice. The third defendant paid 30 days’ pay in lieu of notice. The plaintiff sued the third defendant together with two of its managers, the first and second defendants, claiming damages for breach of contract. A trial was conducted on the issue of liability.

Held:

(1) The first and second defendants were not parties to the contract of employment and could not be liable in breach of contract. The proceedings against them were summarily dismissed.

(2) There was no breach of contract committed by the third defendant as there was sufficient evidence to warrant the contract being terminated for cause. In any event, if it were concluded that there was insufficient evidence to warrant termination for cause, the third defendant paid at least 30 days’ pay in lieu of notice and the contract permitted termination for any reason without notice provided that at least 30 days’ pay in lieu of notice was paid to the employee.

(3) The plaintiff failed to establish a cause of action for breach of contract and the proceedings were dismissed. The parties were ordered to pay their own costs.

Cases cited

The following case is cited in the judgment:

Apolonia Steven v Ram KC (2016) N6577

TRIAL

This was a trial on liability for breach of a contract of employment.

Counsel

B Tabai, for the plaintiff
Y Wadau, for the defendants

13^th September, 2017

1. CANNINGS J: The primary issue in this case is whether the third defendant, Monpi Cocoa Exports (“Monpi”), is liable in breach of contract to a former employee, the plaintiff, Edna Kabug.
2. The plaintiff was a longstanding employee of Monpi. She entered into a fresh written contract of employment on 15^th December 2011, under which she was engaged as Logistics and Personnel Manager of Monpi’s Madang branch. Monpi terminated the contract without prior notice on 1^st May 2012, citing three grounds: gross negligence, gross insubordination and intent to harm the company’s integrity and goodwill. Monpi paid the plaintiff 30 days’ pay in lieu of notice, together with final entitlements, a total sum of K5,148.00.
   

CONSIDERATION

3. The plaintiff has failed to establish a cause of action in breach of contract. I refuse all relief sought by the plaintiff for the following reasons:
   

(a) The first and second defendants were not parties to the contract of employment and cannot be liable in breach of contract. The proceedings against them must be dismissed.

(b) There was a termination clause in the contract which provided that Monpi could terminate the contract without notice and without paying money in lieu of notice, if the contract was terminated ‘for cause’ on grounds including ‘unsatisfactory performance, ‘wilful or gross neglect or incompetence in the performance of responsibilities’ and ‘refusal to carry out a lawful or reasonable instruction’. There is, I consider, sufficient evidence before the Court to warrant the contract being terminated on those grounds. It was therefore open to Monpi to terminate the contract without notice and without paying any money in lieu of notice.

(c) In any event, if it were concluded that there was insufficient evidence to warrant termination for cause, Monpi paid at least 30 days’ pay in lieu of notice, which is what they would have been obliged to pay, if the contract had not been terminated for cause. The contract permitted termination for any reason without notice provided that at least 30 days’ pay in lieu of notice was paid to the employee.

CONCLUSION

4. The plaintiff has failed to prove her case and the proceedings will be dismissed. As to costs, I take the same approach I have taken in a number of cases in which employees have taken their former employers to court for wrongful dismissal, and lost (eg Apolonia Steven v Ram KC (2016) N6577). 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 employer, and lost. She has raised some valid issues. She should not be visited with an order to pay the defendants’ costs. The Court must strive to make access to justice easy and cheap and to keep its doors open to those persons who have genuine grievances and do not act for any improper motive. I will order the parties to bear their own costs.
   

ORDER

(1) The plaintiff has failed to establish a cause of action and the proceedings are dismissed.

(2) The parties shall bear their own costs.

Judgment accordingly.
_______________________________________________________________
Tabai Lawyers: Lawyers for the Plaintiff
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Defendants