N8358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 682 OF 2018

BETWEEN:
PETER PAMA
Plaintiff

AND:
CHRIS GENS trading as KANAGIO SECURITY SERVICES
Defendant

Madang: Narokobi J
2020: 22nd & 25th May, 11th June

LAW OF EMPLOYMENT – constructive dismissal – whether the employer has engaged in a course of conduct with the deliberate and dominant purpose of coercing the employee to resign.

PRACTICE AND PROCEDURE – pleadings and proof – Plaintiff under duty to plead and prove his damages – Failure to – no award for damages.

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether an employer’s act of terminating an employee’s employment was in the circumstances harsh or oppressive or otherwise not reasonably justifiable.

The Plaintiff, a former employee of the Defendant claims that he was unlawfully terminated and further claimed breach of his rights under s 41 of the Constitution.
Held:
(1)	In the circumstances, the Plaintiff was constructively terminated.

(2)	The pleadings did not sufficiently plead claim for final entitlements to be entitled to an award of any damages.

(3)	The applicant adduced credible evidence on the issue of breach of s 41 of the Constitution. The Defendant failed to provide evidence to counter the Plaintiffs claim that he was sworn at, led to believe that he would be re-employed and failed to respond to the letters from the Department of Labour on his final entitlements.

(4)	The actions of the Defendant were not reasonably justifiable and therefore unlawful, amounting to a breach of the applicant’s human rights under Section 41 of the Constitution.

(5)	The Plaintiff established a cause of action for breach of human rights and was entitled to damages.

Cases Cited:
The following cases are cited in the judgment:

Bar v Kora (2008) N3290
Bernard v Marshall (2015) N5850
Malai v PNGTA [1992] PNGLR 568 
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946)
Okona Meten v Mamu (2019) N7668
PNGBC v Jeff Tole (2002) SC 694
RecksRuhuwamo v PNG Ports Corporation Ltd (2019) N8021
Simon v Koisen (2018) N7075
Soki v Kanglean (2019) N7860
Timothy Mong v George Doa (1997) N1540
Tony Charles Kerowa v Arnold Harriman (2017) N6940

Counsel:
Mr. B. Wak, for the Plaintiff
Mr. J. Lai, for the Defendant

						RULING
11thJune, 2020
1.    NAROKOBI, J: This is the court’s decision after a trial on liability for payment of damages for unlawful termination and breach of the Plaintiff’s rights under s 41 of the Constitution.

A	BACKGROUND

2.      This proceeding was filed on 2 August 2019 by the Plaintiff claiming that he was employed by the Defendant security company as a security guard commencing on 6 May 2017 to 25 April 2018, when he was unlawfully terminated.

3.      The Defendants deny the claim and have filed a Defence.

4.      The trial proceeded by way affidavits. Affidavits were tendered by consent on 22 May 2020 and submissions were made on 25 May 2020.

5.      Like an archaeologist given pieces of evidence of events that happened some time ago and would have to reconstruct the story of how humans lived in a particular locality, I am placed in a similar situation. Based on the stories that both sides have told, I must work out what actually transpired. The real story will never be told. I have information that both sides have made a deliberate decision to tender, and I must, based on the laws of evidence and my understanding of an urban Papua New Guinean society, construct the story and confer an appropriate legal consequence based on that story as I see it. 

B	PLAINTIFF’S CONTENTION

6.      The Plaintiffs cause of action is founded on unlawful termination and breach of constitutional rights.

1)	Plaintiff’s Statement of Claim 

7.      In the Statement of Claim, the Plaintiff claims at paragraph 2, that he was employed by the Defendant as a security guard commencing on 6 May 2017 and he ceased employment on 25 April 2018.

8.      At paragraph 3, the Plaintiff alleges that on 25 April 2020 he was unlawfully terminated by the Defendant without any lawful justification or legal basis. He then approached the Defendant to pay him his final entitlements, but he refused to pay him any money (paragraph 4 of the Statement of Claim).

9.      After unsuccessfully checking with the Defendant, the Plaintiff then approached the Labour Department. With the information he provided to them by the Plaintiff, the Labour Department made a calculation for outstanding entitlements for K12,480.12 and sent itin a letter dated 02July 2018. Although the Defendant were then asked to respond to the claim, he refused to either comply with the notice or to respond with contrary calculations(paragraph 8, Statement of Claim).

10.     Despite numerous follow ups, the Defendant has not responded positively to the letter from the Labour Department.

11.      At paragraph 10, the Plaintiff says that in the circumstances, he was treated in a manner that was unfair, harsh and oppressive contrary to s 41 of the Constitution.

12.     In the light of his unlawful termination and the manner he was treated, the plaintiff claims the following relief:

•	A judgement sum of K12,480.12;
•	General damages for pain and suffering to be assessed;
•	An award of damages for breach of constitutional rights under sections 57 and 58 of the Constitution;
•	Special damages;
•	Interests, costs and any other orders the court deems fit and proper.

2)	Plaintiff’s Evidence

13.      In support of his claim, the Plaintiff relied on his own affidavit sworn on 24 February 2020 and filed on 1 March 2020. Mr Pama says the following in his affidavit, from paragraphs two (2) to 13.

14.      Mr Pama is a 63 years old male from Tari, Hela Province and resides at Humandi Settlement, Madang, Madang Province. He started work with the Defendant, Chris Gens trading as Kanagio Security Services on 6 May 2017.

15.      On 25 May 2018, the Defendant removed all his belongings and put them outside of the company premises. He swore at him and told him not to destroy any of his property and fight him back. If he did, he would pay him K1million for the damages. He told him to put all his belongings in his car and he dropped him off at Tales Street, Newton, Madang, Madang Province.

16.      Mr Pama says that at Tales Street, he was told to wait for weeks and after that the Defendant would come and get him after two weeks. After two weeks, since he did not come to get him, he went to check the Defendant, but was told that there was no work.

17.     After being informed that there was no work, he asked for his outstanding entitlements, but the Defendant told him that there was no outstanding entitlements. He was not given any termination notice or provided reasons for not continuing to work.

18.     The Plaintiff then lodged a complaint with the Labour Department, following which the Department issued a letter to the Defendant, dated 2 July 2018, which he ignored. A sum of K12,480.00 was calculated as due and owing to the Plaintiff. That letter states that the Plaintiff’s date of termination was 25 April 2018. A follow up letter dated 6 March 2018 from his lawyer, also went unanswered. That letter states that his termination date was 25 May 2018.

19.     The Plaintiff says that these actions amounted to unlawful termination and he was not paid his lawful entitlements.

3)	Plaintiff’s submission on the law

20.     The Plaintiff’s main legal argument was that the required period of notice under the Employment Act, ss 34 and 36 were not complied with.

21.     In the Plaintiff’s submission, he was employed from 6 May 2017 to 25 April 2018, and therefore he was employed for a year and should have been given two weeks’ notice under s 34(4)(c) of the Employment Act 1978.

22.      In the Plaintiff’s contention, none of the grounds listed in s 36 arose to warrant summary dismissal or were put to the Plaintiff as constituting his summary termination. The Plaintiff relies on the authority of Bernard v Marshall (2015) N5850 and Bar v Kora (2008) N3290 to support this position.

23.      Furthermore, the Plaintiff also submits that his right to s 41 of the Constitution was breached. The Plaintiff says that the circumstances surrounding his removal from employment amount to breach of s 41 of the Constitution in that they were unfair and unlawful. For this ground the Plaintiff relies on the following cases – Simon v Koisen (2018) N7075 and Okona Meten v Mamu (2019) N7668.

C	DEFENDANT’S CONTENTION

24.      The Defendant has filed its Defence, essentially disputing the factual basis giving rise to the claim alleged by the Plaintiff.

1)	Defendant’s Defence 

25.      The Defendant’s defence as contained in the Defence filed on 17 September 2019 is as follows.

26.      Firstly, he says that the Plaintiff is not his employee.

27.      Secondly, he says that the Plaintiff did not approach him to have his final entitlements paid.

28.      Thirdly he says that he never received notice of the letter from the Department of Labour regarding the claim for unpaid final entitlements.

29.      Finally, the Defendant says that the Plaintiff has initiated the proceedings to unlawfully enrich himself at the expense of the Defendant as such the manner in which the Defendant has responded has not contravened Section 41 of the Constitution.

2)	Defendant’s Evidence 

30.      The Defendant relies on two affidavits, one from himself, that is Chris Gens sworn on 24 February 2020 and that of Snex Misan sworn on 11 March 2020.

31.      I make a general observation in passing that the Defendants Defence is based on the fact that the Plaintiff was never an employee of the Defendant.

32.      The subsequent evidentiary materials filed by the Defendant confirmed that the Plaintiff was his former employee.

2.1) Chris Gens’ Affidavit  

33.      Chris Gen deposes to the following at paragraphs one (1) to eleven (11) of his affidavit.

34.      The Plaintiff commenced employment with the company on 6 May 2017 and ceased employment on 7 November 2017. He was employed by the company for a total of seven (7) months.

35.      He was looking after a client’s property at Kuperu Road, New Town Madang. The house belonged to Andrew Marshall who was their client.

36.      Andrew Marshall complained that the Plaintiff was bringing in prostitutes and having sex with them on the property. Chris Gens sent his supervisor Snex Misan to the property to confirm the complaint. He also says that he caught him having sex with a woman whilst on duty and warned him that if he continues in these activities, the company will lose its contract.

37.      On 7 November 2017, Chris Gens went to the property and told the Plaintiff to remove his personal belongings from their client’s property at Kuperu Road as he was not supposed to be living in that property but only providing security to the client at night.

38.      The Plaintiff was taken to his wantok’s house at Taleo Street, New Town and left him there with his personal belongings, to live there and attend work at the client’s property.

39.      From 7 November 2017 to the date of filing the case, the Plaintiff has not returned to work.

40.      The Plaintiff was not terminated verbally or by letter, he left on his own accord. Since then he has not returned to work. All his wages have been paid to him.

41.      It is not true that the Plaintiff was employed from 6 May 2017 to 25 April 2018. The Plaintiff is trying to get even with him for removing him from the property.

42.     The Company does not owe him any outstanding wages. 

43.      The calculation that was done by the Department of Labour was based on misinformation provided by the Plaintiff. 

2.2) Snex Misan’s Affidavit 

44.      Snex Misan disposes to the following from paragraphs one (1) to seven (7) of his affidavit.

45.      Snex Misan is the supervisor of the Defendant security service.

46.      The Plaintiff commenced employment with the company on 6 May 2017 and ceased employment on 7 November 2017. He was employed by the company for a total of seven (7) months.

47.      The Plaintiff was assigned to look after a client’s property at Kuperu Road, New Town, Madang. The house belongs to Mr Andrew Marshall.

48.      Snex Misan states that Chris Gens received a complaint from Andrew Marshall that the Plaintiff was bringing prostitutes to the house and having sex with them, so he sent Snex Misan to go and investigate the complaint. His investigations confirmed the complaint and he informed Chris Gens.

49.      On 7 November  2017, Chris Gens personally attended the client’s property at Keperu Road and told the Plaintiff to remove his personal belongings from the property and he took him to Taleo Street and left him there with his belongings.

50.      Since 7 November 2017 to present, the Plaintiff has not returned to work. He was not terminated from work.

51.      All his wages have been paid to him up to the date he has not decided to turn up to work.

3)	Defendant’s Submission on the law

52.      The Defendant relies on Sections 9, 10, 15, 16, 17, 33, 34, 35 and 36 of the Employment Act.

53.     The Defendant submits that in this jurisdiction, in a situation where a simple employer-employee relationship with no statutory or contractual right, the common law of hire and fire applies (Jimmy Malai-v-PNG Teachers Association [1992] PNGLR 568).

54.      There is evidence to suggest that when the Plaintiff was removed from work on 7 November 2017 with his belongings, he did not return to work thereafter until the present proceedings were filed. He left employment and did not return.

55.      As the Plaintiff left on his own accord, the notice period under s 36(1) of the Employment Act did not apply.

56.     Additionally, as it was an oral contract pursuant to s 10 of the Employment Act, the parties can terminate the agreement at any time (s 35(4)(a)(b) of the Employment Act).

57.      Section 36 of the Employment Act did not apply as the Plaintiff left on his own accord and was not terminated.

58.       In circumstances where he was not supposed to be living there in the first place, and conducting immoral activities, this could not amount to breach of s 41 of the Constitution.

D	FINDINGS OF FACTS

59.     There are competing versions of the facts in this particular case, and I remind myself that the Plaintiff bears the onus of proving his case, and the standard that will persuade the court to accept the particular version of the facts is on the balance of probabilities.

60.      What does that mean? What must I bear in mind when considering the evidence before me? This is particularly important in this case, as we have two competing versions of the facts, and I have to determine who I should believe. It is made all the more difficult when there was no cross-examination of the deponents of the affidavits. What I am required to do, is to decide whether it is more probable than not, that facts alleged occurred or not based on what is before me.

61.      Ultimately, it is the Plaintiff’s case, and where I am in sufficient doubt as to the veracity of a particular version of events, the course I will have to take is that the particular fact as alleged, is not proven.  

62.      Lenalia AJ in Timothy Mong v George Doa (1997) N1540 made the following observations, which I find helpful here:

“In a criminal case, a party needs to establish his case "beyond reasonable doubt". Similarly, in a civil proceeding, the standard of proof required of any party to a civil litigation for the discharge of the legal burden of proof is "proof on the balance of probabilities". This means no more than that the tribunal of fact must be able to say, on the whole of evidence that the case for the asserting party has been shown to be more probable than not. If the probabilities are equal that is if a tribunal is wholly undecided the party bearing the burden of proof will fail. Standard of proof either in criminal or civil refers to the extent or degree to which the burden of proof must be discharged. It is the measurement of the degree of certainty or probability which the evidence must generate in the mind of a tribunal of fact. Speaking of the civil standard of proof Denning J (as he then was) said in Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373-374:

‘That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not.’”

63.      This is a case where the trial proceeded by way of affidavit and there was no cross-examination. I will therefore have to consider the totality of the evidence before me and make my findings. I do so now on the balance of probabilities.

Findings of Facts	Reason 	Evidentiary and Legal Source 	
1.	The first finding of fact I make is that the Plaintiff commenced work with the Defendant on 6 May 2017.	This is consistent with the evidence of the Plaintiff and the Defendant.	•	Paragraph 3 of the affidavit of Peter Pama;
•	Paragraph 2 of the affidavit of Chris Gens; and
•	Paragraph 2 of the affidavit of Snex Misan.	
2.	The second finding of fact I make is that the Plaintiff was involved in some immoral activities in his place of employment, and he was asked to leave on 7 November 2017. 	This is contained in the affidavit of Chris Gens and corroborated by the evidence of Snex Misan. I note that in the Plaintiff’s affidavit, he does not say why he was asked to leave the company premises on 25 May 2018. The departure is not disputed, but the date of departure is disputed. There must be a reason for his sudden departure, and the Plaintiff does not explain this or offer some reasons in his affidavit. It was not the company premises but the premises of a client of theDefendant that the Plaintiff was looking after as a security guard. This is clear from the evidence of Chris Gens and Snex Misan.	•	Paragraph 4 of the affidavit of Peter Pama;
•	Paragraph 2, 3, 4, 5 and 6 of the affidavit of Chris Gens; and
•	Paragraph 2, 3, 4 and 5 of the affidavit of Snex Misan.	
3.	The third finding of fact I make is that when the Plaintiff was asked to leave the company premises, he was sworn at and told not to destroy any of the Defendant’s property, or fight him back or he will have to pay one million kina for the damages. The Plaintiff and his belongings were then transported by the Defendant to Taleo Street Newtown, Madang, Madang Province.	The fact that the Plaintiff’s belongings was transported to Taleo Street, Newtown is not disputed. The issue is whether he was sworn at. I find that he was sworn at, and the reason for that was that the Defendant was angry at him for bringing prostitutes into the Defendant’s client’s property. The Defendant has not negated the Plaintiffs assertion of being sworn at. It is reasonable for me to infer that the Defendant swore at him, as he was angry at the possibility of losing a client by the immoral behaviour of the Plaintiff.	•	Paragraph 4 of the affidavit of Peter Pama;
•	Paragraph 4 and 5 of the affidavit of Chris Gens; and
•	Paragraph 3, 4 and 5 of the affidavit of Snex Misan.	
4.	The fourth finding of fact, I make is that the Plaintiff was told on 7 November 2018 to wait for two weeks and after that the Defendant would come and get him but the Defendant never went back to get him.	The motive for the Plaintiff to be told that he was to stay at home and check the Defendant after two weeks was that he had conducted immoral activities on the premises of the Defendant’s clients. In my view this is a reasonable inference to make, considering the totality of the evidence before me.	•	Paragraph 5 of the affidavit of Peter Pama;
•	Paragraph 4 of Chris Gens; and
•	Paragraph 4 of the affidavit of Snex Misan.	
5.	The fifth finding of fact I make is that on the pleadings and the evidence, the Plaintiff has not discharged the onus to show that he was not paid his final entitlements.	I say this on the basis of the pleadings. The pleadings do not plead the actual amount of final entitlements with the necessary level of particularity. If it did then the Defendant would have responded to it. The judgement sum it claims of K12,480.56 is from the letter of the Department of Labour. It contains the position of the Plaintiff. It cannot be conclusive. The various components have to be specifically pleaded. For example, did the plaintiff work all days as claimed in the letter? When did he stop working, is it 7 November 2017, 25 April 2018 06 May 2018? The end date of employment will affect the final amount due.  Perhaps there were days the Plaintiff was sick and not at work or even absent from work. This would also affect the final amount payable. It is for this reason, that the amount has to be pleaded with sufficient particularity so that the Defendant can prepare its Defence. I am unsure whether these are actual amounts due and owing as opposed to moneys claimed on the version of events from only the Plaintiff. The need to plead damages for unpaid entitlements was held in the case of PNGBC v Jeff Tole (2002) SC694.	•	Plaintiffs Statement of Claim;
•	Paragraph 6 of the affidavit of Peter Pama;
•	Paragraph 8 of the affidavit of Chris Gens.
•	PNGBC v Jeff Tole (2002) SC694.
	
6.	The sixth finding of fact I make is that the Defendant never responded to the letter dated 2 July 2018 from the Department of Labour. There was an earlier letter sent dated 24 May 2017 which was not responded too as well.	This is clear from the evidence of the Plaintiff. I accept the Plaintiffs evidence on this. There is no reason why he should not go and deliver these letters to the Defendant. Even if he never responded to the letter, in any case it was brought to his attention from the letter from his lawyer’s dated 6 March 2019. There was no response from the Plaintiff’s lawyer’s letter too.	•	Paragraph 9 and 13 of the affidavit of Peter Pama.
	
7.	The seventh finding of fact I make is that the Plaintiff has been attempting to see if he was going to be employed again, on the invitation of the Defendant to check him again after two weeks.	I make this finding on the basis of my understanding of Papua New Guinea circumstances - that in Papua New Guinea, a 63 year old illiterate man (in the sense that he cannot read and write English), living in another province, would value the importance of  a job, and, it is likely that his version of the facts that he has been checking the possibility of being re-employed bears some probability of truth. It would be incredible if he would just walk off his job.	•	Paragraph 5 of the affidavit of Peter Pama.
	
8.	The eighth finding of fact I make is that on the facts, the Defendant had in law, terminated the Plaintiff and had no intention to re-employ the Plaintiff again, but had given him the impression to check him from time to time, perhaps to avoid any hard feelings between them.	This finding is an inference from the totality of the evidence before me. I also gather this from the fact that the Defendant removed the Plaintiff’s possession from the premises he was guarding. This was in actual fact, an express intimation to the Plaintiff that his services were no longer necessary.	•	Paragraph 4 and 5 of the affidavit of Peter Pama;
•	Paragraph 5 of the affidavit of Chris Gens; and
•	Paragraph 5 of the affidavit of Snex Misan.	

64.      In summary, my findings are therefore as follows.

65.      Firstly, the Plaintiff commenced work with the Defendant on 6 May 2017.

66.      Secondly, the Plaintiff was involved in some immoral activities in his place of employment where he was residing, and he was asked to leave on 7 November 2017.

67.      Thirdly, when the Plaintiff was asked to leave the company premises, he was sworn at and told not to destroy any of the Defendant’s client’s property, or fight him back or he will have to pay one million kina for any damage caused. The Plaintiff and his belongings were then transported by the Defendant to Tales Street Newtown, Madang, Madang Province on 7 November 2017.

68.    Fourthly, the Plaintiff was told on 7 November 2018 to wait for two weeks and after that the Defendant would come and get him, but the Defendant never went back to get him.

69.      Fifth, on the pleadings and the evidence, the Plaintiff has not discharged the onus to show that he was not paid his final entitlements.

70.      Sixth, the Defendant did not reply to the letter dated 2 July 2018 from the Department of Labour. An earlier letter sent dated 24 May 2017 was not responded too as well. The Plaintiff’s lawyers letter dated 6 March 2019 also went unanswered.

71.      Seventh, the Plaintiff has been attempting to see if he was going to be employed again, on the invitation of the Defendant to check him again after two weeks.

72.       Eighth, on the totality of the circumstances, the Defendant had in law, terminated the Plaintiff for cause, and had no intention to re-employ the Plaintiff again, but had given him the impression to check him again, perhaps to avoid any hard feelings between them.

73.     These are the findings I make, and based on these findings, it will determine the relevant issue I have to consider.

E	ISSUES

74.      After considering the evidence and the submission of the parties, I consider this to be the issue for the court to decide:

•	Whether the Plaintiff’s employment wasunlawfully terminated by the Defendant?; and
•	Whether thePlaintiffhas sufficiently pleaded his claim for damages?; and
•	Whether the Plaintiff’s constitutional right under s 41 of the Constitution was breached?

75.      These are the issues I will deliberate on.

E	THE LAW

76.      After the findings of factsI have made, and issues I have identified, I determine the following to be the relevant law applicable in the circumstances of this case.

77.     The first provision of law I rely on is that of s 36(1) of the Employment Act.

“36. Ground for Termination of Contract.
(1) An employer may terminate a contract of service without notice or payment instead of notice–
(a) where the employee–
(i) wilfully disobeys a lawful and reasonable order; or
(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or…”

78.       In my view, the case authority of PNGBC v Jeff Tole (2002) SC 694, which stands for the proposition that in order for a party to be entitled to damages for unlawful termination, it has to plead its claim with sufficient particularity, is applicable to the facts of this case.

79.      I also consider s 41 of the Constitution to be applicable here, and the provision states:
“41. Proscribed acts.
 
(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.”

80.     I consider these to be the law I must apply as it is interpreted by a number of case authorities, which I will refer to below.

G	APPLYING THE LAW TO THE FACTS

1)	First Issue

81.      On the first issue, my conjecture is that the Defendant actually summarily terminated the Plaintiff by virtue of Section 36 of the Employment Act.

82.      But I cannot make this finding for the reason the court held in the case of Bernard v Marshall [2015] PGNC 3; N5850, that is the reasons for termination were not spelt out in the termination, there was no Defence pleaded in terms of Section 36 of the Employment Act, and thirdly at trial, the Defendants did not make submissions on Section 36, but instead ran the argument that the Plaintiff left on his own accord. 

83.     The reason I say this, is that the Defendant has himself provided corroborated evidence that the Plaintiff had conducted immoral activities on his client’s premises.

84.      Based on the conduct of the Plaintiff, the Defendant came on 7 November 2017 to the client’s premises which the Plaintiff was guarding as a security and also residing and removed his belongings.

85.      The Plaintiff was then told to wait for two (2) weeks and come and check the Plaintiff later.

86.     In my view, the conduct of the Plaintiff led the Defendant to ask him to stay away from work. This was necessary so that the Defendant would keep his client. It is improbable to expect a 63-year-old man with limited opportunities for employment in the formal sector, to just walk away from his employment. 

87.      What was the motive for the Defendant to sever the Plaintiff’s employment is explained in the affidavit of the Defendant and of his supervisor, Snex Misan – the Plaintiff was engaging in immoral activities on the Defendant’s client’s property. This behaviour would imperil the Defendant’s business contract.

88.     What the Plaintiff did (whether overtly or impliedly) on 7 November 2017 fell within the meaning of s 36(1)(a)(ii) of the Employment Act. The Plaintiff had engaged in immoral activities in his place of work. He was supposed to be guarding the premises, and not doing what he did. The Plaintiff had “misconducted himself by an act of… commission that is inconsistent with the due and faithful discharge of his duties…” under s 36(1)(a)(ii) of the Employment Act.

89.     But as I said above, the Defendant chose not to run this argument but instead decided to say that the Plaintiff left on his own accord. So, I have two conflicting versions of the story. This has led me to find, considering all the evidence, that there was constructive dismissal.

90.      Constructive dismissal was explained in the case of Tony Charles Kerowa v Arnold Harriman (2017) N6940 by Cannings J as follows:

“It has been adopted as part of the underlying law of PNG. One of the leading cases in the Pacific is Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372, in which the New Zealand Court of Appeal described three scenarios in which a forced resignation will be deemed to have occurred:

(a)	where the employee is given the choice of resignation or dismissal; or
(b)	where the employer has engaged in a course of conduct with the deliberate and dominant purpose of coercing the employee to resign; or 
(c)	where a breach of duty by the employer forces the employee to resign.”

91.      I find that situation (b) exists in the circumstances of this case. The course of conduct that has occurred as I have found for the Plaintiff was that he was asked to stay at home and told to go back and check for work. He did but was told that there was no work for him. There was no intention on the Defendant to reengage the Plaintiff. This in all the circumstances led the Plaintiff to stay away from work.

92.      Constructive dismissal is a form of wrongful termination, and so I find that this was what occurred in the circumstances of the case.

2)	Second Issue

93.     On the second issue, as indicated above, I have come to the conclusion that on the facts pleaded, the Plaintiff is not entitled to any damages.

94.      I adopt what Thompson J said in Soki v Kanglean (2019) N7860, at paragraph 26:

“The law on unlawful termination is well settled. An employee who is unlawfully terminated, will receive as damages the amount which she would have been entitled to receive if she had been lawfully terminated. (See Pama Anio v Aho Baliki (2004) N2719, The Central Bank of PNG v Gabriel Tugiau (2009) SC 1013 and William Maninga v Ramu Sugar Ltd (2010) N4118). In order to receive damages, any actual loss and damage must be clearly pleaded with particularity, and then established by proper evidence at the hearing. If there is no proper foundation in the pleadings or no proper evidence to support the pleadings, no damages can be awarded. (See PNGBC v Jeff Tole (2002) SC 694 and Central Bank of PNG v Gabriel Tugiau (supra).”

95.      Her Honour has taken a similar position in Recks Ruhuwamo v PNG Ports Corporation Ltd (2019) N8021.

96.      Whether the Plaintiff was lawfully or unlawfully terminated, the final entitlements is the same. What is required is that the damages must be pleaded with some level of particularity. 

97.      This is for the reason, that the claim is disputed by the Defendant, and is not pleaded in the Statement of Claim with sufficient particularity. As I said in my findings of facts, the termination date will affect the final payout. Was the Plaintiff terminated on 7 November 2017, 25 April 2018 or 6 May 2018? I have found for the Defendant on this date, simply for the reason that his evidence is corroborated. This will mean that the amount claimed for summary judgement must be pleaded and proven by evidence. In this case it is not. This is not an appropriate case for summary judgement.

98.      I understand the Plaintiff’s predicament because the Defendant has not responded to three letters, two from the Department of Labour and one from his lawyer and I take that into account in my deliberation on the alleged breach of s41 of the Constitution.

99.     All that the Plaintiff claim is the amount calculated by the Department of Labour based on the information he provided. I note from the letter, that the Defendant is required to respond to the letter with his version of the Plaintiff’s employment history. He has not done so. This would mean that the information relied on to arrive at the final entitlements in the letter of 2 July 2018 is neither accepted nor denied. It is a claim. As such it cannot be upheld for purposes of entering a judgment sum of K12,480.12.

100.      The Department of Labour has also calculated notice period of two weeks wages in lieu of notice, on the basis that the Plaintiff has been employed for a year. The Plaintiff’s own evidence is that he was employed from 6 May 2017 to 25 April 2018. This is 10 days shy of a year and is not correct to claim two weeks-notice for the full year. I have also found for the Defendant on the termination date of 7 November 2017. This will affect the calculations. 

101.      One will notice from the letter of 2 July 2018 from the Department of Labour that the Defendant was requested to furnish in writing the statements and records purporting to substantiate that all entitlements has been paid to the Plaintiff during his period of service. No such information was provided. As such the amount claimed cannot be viewed as legally binding on the Defendant. This would require specific pleadings and tendering of evidence to support it.

102.     I therefore find that the Plaintiff’s claim for final entitlements and related damages has not been made out. I dismiss this claim against the Defendant.

3)	Third Issue

103.      On the third issue, after considering the facts of this case, I am persuaded by the Plaintiff’s submission to apply the case of Simon v Koisen (2018) N7075.

104.     Whilst I accept that the employer has the right to hire and fire (Malai v PNGTA [1992] PNGLR 568, New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946), the manner in which it is done, must not be harsh, oppressive, or not warranted by the requirements of a particular case. 

105.      In Simon v Koisen, Cannings J held relevantly at paragraphs 16 and 17:
16. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio& The State (2012) N4598). 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 democratic society having a proper regard for the rights and dignity 
of mankind.

17. 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.”

106.     In Simon v Koisen the court found the following factors in an employer/employee situation as amounting to breach of s41 of the Constitution:

“The respondents failed to provide evidence to counter the applicant’s claim that he was given short and unreasonable notice to transfer, without any reasons being given, and that he was charged with disciplinary offences and then, when found guilty and had his employment terminated, was the victim of personal abuse.”

107.      Cannings J, then went on to say at paragraph 24, which I adopt:

“The human rights provisions of the Constitution are all about humanity.	 Dealing with people with humanity and decency. Section 41 is a very important provision. Terminating someone’s employment is a significant event. Even if it is done under a valid law it must be done with humanity, not harshly and oppressively as happened in this case.”

108.      In this particular case, I find that the manner in which the Plaintiff was treated was not warranted by the circumstances of the case pursuant to Section 41(1)(b) of the Constitution.

109.      I find the following facts as being sufficiently proven to the required standard, have amounted to breach of the Plaintiff’s rights under s 41(1)(b) of the Constitution for not being warranted by the particular circumstances of the case: 

•	The Plaintiff was constructively terminated, and Defendant had given him the impression that he would be re-employed, a fact the Defendant knew or ought to have known,not to be true;
•	The Plaintiff is a 63-year-old illiterate man, living in another province, would value the importance of employment, and the Defendant should have informed the Plaintiff immediately that he was not going to be employed again;
•	Based on that undertaking, the Plaintiff kept on checking the Defendant;
•	The Defendant swore at the Plaintiff; and
•	The Defendant was non-responsive to the two letters from the Labour Department dated 24 May 2017 and 2 July 2018, to provide statements and records to substantiate payment of entitlements. The Labour Department is a legitimate state agency, charged with the responsibility of ensuring worker’s rights are protected and warranted a response from the Defendant.

110.      I have therefore come to the conclusion that the manner in which the Plaintiff was treated was not warranted by the particular circumstances of the case.

111.      In my respectful view, a case for breach of s 41(1)(b) of the Constitution has been made out.

H	CONCLUSION 

112.     In consideration of my findings of facts and the application of law to the issues, I now make the following orders:

1)	Although the Plaintiff’s claim for unlawful termination was made by way of a constructive termination, the subsequent claim for unpaid final entitlements and any related damages is not made out and is dismissed;
2)	The Plaintiff’s claim for breach of s 41 of the Constitution is upheld;
3)	Matter is adjourned to the next call over in July 2020 for directions for the case to be allocated a trial date for assessment of damages for breach of s 41 of the Constitution;
4)	On account of the Plaintiff partly succeeding in his claim, each party will bear its own costs;
5)	Time is abridged.
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Bradley Wak Lawyers: Lawyers for the Plaintiff		
Thomas More Ilaisa Lawyers:  Lawyers for the Defendants