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Singadan v Telfer [2018] PGNC 8; N7072 (31 January 2018)

N7072

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1005 OF 2015

BETWEEN
MARGARET SINGADAN
Plaintiff

AND
BRUCE S TELFER, GENERAL MANAGER, SGS PNG LIMITED
First Defendant

AND
SGS PNG LIMITED
Second Defendant

Waigani: Cannings J

2016: 26, 27 July & 2 September

2018: 31 January

LAW OF EMPLOYMENT – unlawful termination of employment – whether employer breached contract of employment by dismissing employee on grounds of employee’s HIV-positive status, improper conduct – whether employer failed to properly consider employee’s response to allegations of improper conduct.

HUMAN RIGHTS – right to freedom based on law – right to full protection of the law – right to liberty – right to freedom of employment – right to privacy – right to equality and protection against discrimination – Constitution, Sections 32, 37, 42, 48, 49, 55 – whether termination of employment involved breach of human rights.

The plaintiff was employed as a logging inspector for four years by the second defendant, whose general manager (the first defendant) served on the plaintiff a notice of suspension, charging her with professional misconduct, namely allegations of assault of a fellow employee and threats of further violence. The plaintiff was given one week to reply, which she did but the defendants decided to terminate her employment for cause and she was paid various amounts on termination of her employment. The plaintiff sued the defendants, seeking declarations that termination of her employment was unlawful and entailed a breach of human rights, and damages. She pleaded two causes of action: (1) unlawful termination (breach of the contract of employment), in particular by dismissing her (a) because she was HIV-positive and (b) without good cause (due to her satisfactory reply to the allegations of misconduct), and (2) breach of human rights, in particular the rights to (a) freedom based on law (Constitution, Section 32), (b) full protection of the law (Constitution, Section 37), (c) liberty (Constitution, Section 42), (d) freedom of employment (Constitution, Section 48), (e) privacy (Constitution, Section 49) and (f) equality and protection against discrimination (Constitution, Section 55). This was the trial on liability.

Held:

(1) The termination of employment was not unlawful as (a) there was no credible evidence that the plaintiff’s employment was terminated because of her HIV-positive status; and (b) there were reasonable grounds on which she could be terminated for cause, and the defendants had given the plaintiff a right to be heard on allegations of assault and threats of violence against a fellow officer and made a considered and rational decision, acting on evidence of several witnesses.

(2) There was no credible evidence on which to draw the conclusion that the plaintiff’s human rights had been breached in the manner contended for.

(3) The plaintiff failed to establish a cause of action in unlawful termination of employment or breach of human rights. The proceedings were entirely dismissed and the parties ordered to bear their own costs (in view of the clumsy way, given the plaintiff’s medical status, in which the defendants conveyed to the plaintiff the decision to terminate her employment).

Cases cited:

The following cases are cited in the judgment:

Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Paru v Kotigama & Bmobile-Vodafone (2015) N6089
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946
Roger Baboa v PNG Telecommunication Workers Union (2006) N3043

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:

T Dalid, for the Plaintiff
A MacDonald & W Mininga, for the Defendants

31^st January, 2018

1. CANNINGS J: The plaintiff, Margaret Singadan, commenced employment as a logging inspector with SGS PNG Ltd (the second defendant) in October 2006. In November 2010 her employment was terminated, for cause, on the ground that she had assaulted a fellow female employee and issued threats of further violence against other persons. The person who decided to terminate her employment was the first defendant, Bruce Telfer, the general manager of the second defendant.

2. In 2015 the plaintiff commenced proceedings against the defendants. She seeks declarations that termination of her employment was unlawful and entailed a breach of human rights. She also seeks damages. She pleads two causes of action:

(1) unlawful termination (breach of the contract of employment), in particular by the defendants dismissing her (a) because she was found to be HIV-positive and (b) without good cause (due to her satisfactory reply to the allegations of misconduct);

(2) breach of human rights, in particular the rights to (a) freedom based on law (Constitution, Section 32), (b) full protection of the law (Constitution, Section 37), (c) liberty (Constitution, Section 42), (d) freedom of employment (Constitution, Section 48), (e) privacy (Constitution, Section 49) and (f) equality and protection against discrimination (Constitution, Section 55). This was the trial on liability.

3. Three issues arise:

1. Has the plaintiff established a cause of action in unlawful termination of her employment?
   
2. Has the plaintiff established a cause of action in breach of human rights?
   
3. What declarations or orders should the Court make?
   
1. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION IN UNLAWFUL TERMINATION?
   

(a) HIV-positive status

4. It is undisputed that the plaintiff was HIV-positive during the period of her employment with SGS from 2006 to 2010. She had the Human Immunodeficiency Virus. She did not have AIDS (Acquired Immune Deficiency Syndrome). AIDS is a separate and discrete medical condition that occurs only if the HIV virus is uncontrolled. The plaintiff has been on antiretroviral treatment administered by a specialised clinic in Port Moresby. This allows her to live a normal life. Her supervising doctor, Dr N S Gideon, gave evidence as to her medical status. Like other persons undergoing such treatment, her life expectancy is unaffected by her HIV-positive status, provided that she maintains the strict clinical protocols required.

5. The plaintiff gave evidence that her HIV-positive status did not affect her ability to work. However it became a problem in 2010 when some of her fellow employees found out about it. She testified that one of her female colleagues started gossiping about her status and was spreading false allegations about her being involved in prostitution. So she confronted that colleague and was provoked into punching her. That person then laid a complaint with Mr Telfer, which led to the plaintiff being suspended and then having her employment terminated.

6. The plaintiff has testified that when she was suspended she felt she was being stigmatised. She complained to the National AIDS Council, which inquired into her complaint. On 26 October 2010 the Director, Wep Kanawi, sent a letter to Mr Telfer, drawing his attention to the requirements of the HIV/AIDS Management and Prevention Act 2003 (the HAMP Act) and encouraging him to ensure that SGS have organisational practices in place to prevent stigma and discrimination in the workplace.

7. Mr Dalid, for the plaintiff, submits that it is no coincidence that shortly after getting that letter Mr Telfer made the decision to terminate the plaintiff’s employment. He submitted that the inference must be drawn from the evidence that termination of the plaintiff’s employment was based on the letter from the National AIDS Council, which Mr Telfer had referred to the company’s head office in Australia, which evidently advised that she should be terminated. It is argued that the plaintiff’s employment was terminated because of her HIV-positive status.

8. I have considered the plaintiff’s evidence. I have also considered Mr Telfer’s testimony. The woman who the plaintiff assaulted (who, the plaintiff maintains, was gossiping about her) also gave evidence, and I have considered that evidence.

9. I am satisfied that the decision to terminate the plaintiff’s employment had nothing to do with her HIV-positive status. I accept Mr Telfer’s evidence that he received the letter from the Director of the AIDS Council in late October or early November 2010, by which time he had already made the decision to terminate the plaintiff’s employment. He stated that this was the first time that he knew of the plaintiff’s medical status. He stated that he checked her personal file which showed that this fact was revealed when she was first employed, which showed that from the company’s point of view it was a non-issue in her recruitment and it was a non-issue in the period of her employment and also in the decision to terminate her employment.

10. I find that the plaintiff has failed to prove that the decision to terminate her employment was motivated by the disclosure or knowledge of her HIV-positive status.

(b) Termination without good cause

11. The following facts are undisputed:

• the plaintiff was involved in an incident on the evening of 12 October 2010 in which she confronted a fellow officer who she accused of gossiping about her HIV-positive status, and shortly afterwards had a heated verbal altercation with a male PNG Forestry Authority officer;
  
• Mr Telfer on the morning of 14 October 2010 called the plaintiff into his office to discuss the matters as he had received written complaints about the plaintiff’s conduct on 12 October 2010 from the other persons concerned;
  
• on 15 October 2010 Mr Telfer wrote a letter to the plaintiff in the form of a suspension notice, charging her with a breach of the company’s professional code of integrity and professional conduct, which stated:
  

Specifically that you have [on 12 October 2010] assaulted a fellow employee both physically and verbally plus you have issued threats of future violence to both these employees and an officer of the PNG Forest Authority.

• the plaintiff responded in writing on 21 October 2010: she did not deny that she assaulted the fellow female officer but explained that it was done under provocation due to the other officer gossiping about her; nor did she deny having a verbal altercation with the male PNGFA officer, but she indicated that this was due to a misunderstanding on his part as to what she said to him in passing and that he swore at her and abused her;
  
• Mr Telfer considered the plaintiff’s response but took the view that it was unsatisfactory and signed a letter to the plaintiff dated 1 November 2010 notifying her of the termination of her employment;
  
• the letter of 1 November 2010 had not been given to the plaintiff when on 3 November 2010 she noticed an irregular credit of K4,253.56 in her bank account (which, it transpired, was her finish pay), so she went to see Mr Telfer who gave her the termination letter dated 1 November 2010, which stated, amongst other things:
  

I find that you have indeed assaulted a fellow employee physically (who, at an interview in my office, you admitted striking on 12^th October). Plus it is clear that you have issued threats of violence to a number of fellow employees as well as an employee of our client [PNGFA].

Such violence and ongoing intimidation is clearly a major breach of section 6 (employee relations) of our professional code of integrity and professional conduct and cannot be tolerated.

Accordingly you are hereby terminated from our employ with immediate effect and you are not to enter any company premises (office or accommodation) as from the date of this letter. Your final pay will be as of 5 November 2010.

12. Mr Dalid submitted that the reasons given by Mr Telfer for the plaintiff’s termination were inadequate, unfair and not genuine. As to the first reason, Mr Dalid submitted that Mr Telfer should have inquired further into the plaintiff’s claim that the female officer she assaulted had been gossiping about her (the plaintiff) and that that female officer and another she (the plaintiff) had reported on had been involved in unethical sexual activities with non-citizen logging workers at two separate provincial logging sites. As to the second reason, it is argued that the threats were minor and of a trivial nature and not such as to warrant termination of employment. It is argued that the plaintiff should have been given a warning. Without a warning having first been given, the termination was harsh and biased. The plaintiff gave evidence of previous assault incidents involving SGS logging inspectors, in which the so-called ‘zero tolerance’ policy imposed on her, was not applied. It was also evidence, Mr Dalid submitted, that the plaintiff was being blamed for causing SGS embarrassment due to a front-page story in The National newspaper earlier in 2010, headlined “Sepik sex ring busted”, which implicated SGS employees in unethical and criminal behaviour.

13. The plaintiff was further dealt with unlawfully, Mr Dalid submitted, given the manner in which her ‘finish pay’ was calculated and paid into her bank account without her being informed orally or in writing of the termination of her employment.

14. Mr Dalid argued on the basis of Section 15 of the Employment Act and my decision in Roger Baboa v PNG Telecommunication Workers Union (2006) N3043 that the terms of the contract of employment should be regarded as what the plaintiff believed the terms to be. This was because the defendants were unable to produce a copy of the actual contract signed by the plaintiff when she commenced employment in 2006.

15. I dismiss that argument. I am satisfied that in view of the period between the date of termination of employment (November 2010) and commencement of these proceedings (July 2015), it is reasonable that the defendants were able to produce only a standard form of contract. That standard document, together with Mr Telfer’s evidence that the plaintiff was employed on the terms and conditions in that standard document, amount to an adequate record of the terms of her contract.

16. I am not persuaded by any of Mr Dalid’s submissions that the plaintiff was unlawfully terminated. More specifically it has not been established that any breach of contract occurred. Mr Dalid did not point to any specific term of the contract of employment that was breached; and I am unable to find any. As to the alleged unfairness and bias involved in the decision to terminate the plaintiff, it is not the function of the court to sit as an appeal tribunal and hear a merits appeal regarding decisions to terminate employment.

17. If the decision were “harsh” or “oppressive” in the sense that those terms are used in Section 41 of the Constitution, a case might be made out for the court’s intervention. What has happened here, however, is far removed from such a scenario. I consider that there were reasonable grounds on which the plaintiff could be terminated for cause. Mr Telfer gave the plaintiff a right to be heard on the allegations of assault and threats of violence against a fellow officer. He was not actually required under the terms of the written contract of employment or under the underlying law to give her a right to be heard (New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946). However, he did so. He then considered her response. I am of the view that Mr Telfer made a considered and rational decision, acting on evidence of several witnesses, that the plaintiff’s conduct was a serious issue which required immediate action. I find, subject to one qualifying remark, that the plaintiff’s employment was lawfully terminated ‘for cause’.

18. The qualification I make is that the manner in which the plaintiff was informed that she had lost her job was unsatisfactory. She became aware of the large credit in her bank account, which understandably caused her some alarm, then it was only when she went to see Mr Telfer in person that she was given formal notice of her termination. This is not a matter that goes to the legality of termination of her employment but it is something relevant to the exercise of the court’s discretion as to costs, which I will address later.

Conclusion as to unlawful termination

19. The plaintiff has not proven that she was unlawfully terminated. No cause of action has been established.

2. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?
   

20. In the statement of claim it is pleaded that the defendants breached six of the plaintiff’s human rights:

• right to freedom (Constitution, s 32);
• right to the full protection of the law (Constitution, s 36);
• right to liberty of the person (Constitution, s 42);
• right to freedom of employment (Constitution, s 48);
• right to privacy (Constitution, s 49);
• right to equality and protection against discrimination (Constitution, s 55).

Section 36 means: every person has the right to freedom based on law and can do anything that does not interfere with others and is not prohibited by law.

Section 37 means: every person has the right to the full protection of the law, especially persons charged with offences.

Section 42 means: no person shall be deprived of his or her personal liberty except in circumstances permitted by the Constitution. No person can be unlawfully arrested or detained.

Section 48 means: every person has the right to freedom of choice of employment in any calling for which he or she has the qualifications lawfully required.

Section 49 means: every person has the right to reasonable privacy in respect of their private and family life, their communications with other persons and their personal papers and effects.

Section 55 means: every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

21. Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment (Paru v Kotigama & Bmobile-Vodafone (2015) N6089).

22. However, it has not been proven that the way in which the defendants dealt with the plaintiff involved a breach of any of her human rights. If it had been proven that she had been the subject of stigma and discrimination there would have been a good case for arguing that the termination of her employment was unlawful. It would have been contrary to the HAMP Act and it would have amounted to a breach of human rights, at least the right of equality and protection against discrimination and probably (though it was not pleaded) the right of protection in Section 41 of the Constitution against harsh or oppressive and other proscribed acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373). However, I have rejected the argument that the plaintiff’s employment was terminated because of her medical status. There is no basis for a finding of breach of human rights.

Conclusion as to breach of human rights

23. The plaintiff has not proven that any of her human rights were breached.

3 WHAT ORDERS SHOULD BE MADE?

24. As the plaintiff failed to prove both causes of action she 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. She was dealt with in a rather clumsy and unprofessional way once the decision was made to terminate her employment, which was most unfortunate given her medical status and the real thoughts in her own mind that she was being stigmatised and was the subject of discrimination. The defendants should have dealt with such a sensitive case with more care and attention. These are the sorts of things that the Court can properly take into account when making a decision on who should pay the costs of the proceedings. 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 unlawful termination of employment or 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,
________________________________________________________
Gagma Legal Services: Lawyers for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendants