N9830

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO. 3 OF 2015

WALTER NUAK
Plaintiff

-V-

HENRY MOKONO in his capacity as the Chief Executive Officer of EDA RANU
First Defendant

NATIONAL CAPITAL DIDTRICT WATER & SEWERAGE LIMITED trading as EDA RANU
Second Defendant

Waigani: Kariko, J
2020: 13th October

EMPLOYMENT – termination– whether unlawful - s.41, Constitution – onus of proof – employer’s right to hire and fire

The plaintiff sought damages based on a claim that the termination of his employment did not follow due process and was unlawful in terms of s 41 of the Constitution.  

Held:

(1)	An employer can hire and fire at will, with or without good reasons and without giving a right to be heard, unless a contract of employment provides otherwise, and the plaintiff was not employed under contract.
(2)	The disciplinary process was followed, and there was insufficient evidence to find s 41 of the Constitution applied.
(3)	The plaintiff’s claims were refused, and the proceeding dismissed.

Cases Cited:

Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946

Legislation:

Constitution 
Industrial Relations Act, Ch. 174

Counsel:

Mr B Lai, for the Plaintiff
Ms M Konge, for the Defendants

TRIAL

This is a trial on liability and damages relating to a claim for unlawful termination of employment.

13th October, 2020

1.	KARIKO, J: The plaintiff seeks declaratory orders that the disciplinary process followed by his former employer National Capital District Water & Sewerage Limited trading as Eda Ranu (Eda Ranu) that led to his termination was unlawful in terms of s.41 of the Constitution, and he also pleads that he be compensated in damages.

2.	Apart from Eda Ranu, which is named as the second defendant, the then Chief Executive Officer of Eda Ranu, Henry Mokono (the CEO), is named as the first defendant. 

COMPETENCY

3.	An issue was raised as to the competency of this proceeding, which must be addressed first. The issue concerns the mode of proceedings, and whether the plaintiff properly filed an Originating Summons. 

4.	The defendants argued that as O.4 r.2(c) of the National Court Rules requires proceedings to be initiated by a Writ of Summons where one is claiming for damages, as in the present case. O.4 r.2(c) refers to damages for breach of duty, damages relating to the death of a person, and damages in respect of personal injuries from damage to property. That is not the type of damages sought here, so I dismiss that argument.

5.	In any case, I consider this an appropriate claim to have been commenced by an Originating Summons as there is no substantial dispute of fact; O.4 r.3(2)(c).

EVIDENCE

6.	By consent, the parties tendered affidavit evidence without examination of the deponents.

7.	The plaintiff relied on his own affidavit sworn and filed on 30 July 2015 (Exhibit P1). He also tendered by consent a document issued by Eda Ranu entitled Employee Code of Conduct (Exhibit P2).

8.	The defendants tendered three affidavits:

•	Affidavit of Genevieve Luke (Human Resources Team Leader, Eda Ranu) filed 9 September 2015 (Exhibit D1)
•	Affidavit of Alice Talvat (Human Resources Manager, Eda Ranu) filed 9 September 2015 (Exhibit D2)
•	Affidavit of Alice Talvat filed 22 October 2015 (Exhibit D3)

9.	Most of the relevant facts are not in controversy.

10.	The plaintiff commenced employment with Eda Ranu on 10 December 2007, in the Human Resource Division. He was not employed under contract.

11.	In February 2013, he was accepted to undertake the Master of Business Administration Program with the Divine Word University, Port Moresby Campus.

12.	On 18 February 2013, he advised the Human Resource Manager, Ms. Alice Talvat of his acceptance and requested for approval by Eda Ranu to sponsor his studies. 

13.	Ms Talvat replied 2 days later, advising that the sponsorship application was declined. The letter also raised some concerns regarding the plaintiff’s conduct and performance. 

14.	On 22 February 2013, the plaintiff responded to Ms Talvat’s letter but copied it to other recipients including the CEO. 

15.	A Notice of Suspension dated 28 February 2013 and signed by the CEO was then served on the plaintiff on 1 March 2013. The Notice alleged insubordination against the plaintiff for:

•	bypassing his supervisor in communicating directly with higher management; and
•	being disrespectful to and uncooperative with, his immediate superior. 

16.	The plaintiff replied by letter to the CEO the same day and apologized for any insubordination but undertook to conduct himself better and cooperate with superiors in the future. 

17.	By letter dated 13 March 2013, the Human Resource Manager wrote back and advised the plaintiff to answer specifically to the charges in the Notice of Suspension. 

18.	The plaintiff answered by letter on 14 March 2013.

19.	The CEO established a Domestic Inquiry Committee to look into the charges against the plaintiff. Upon invitation, the plaintiff attended before the Committee and was questioned. After deliberations, the Committee referred the matter to the CEO. 

20.	On 26 March 2013, the plaintiff was served a Letter of Termination signed by the CEO, advising him the charges had been sustained and that he was terminated from his employment immediately. 

21.	The plaintiff lodged a complaint against his termination to the Department of Labour and Industrial Relations as an industrial dispute, alleging unfair and unjust termination.

22.	The Department sought to invoke the provisions of the Industrial Relations Act, Ch. 174 by conducting a Compulsory Conference to resolve the complaint but Eda Ranu stood its ground that the termination had followed due process and the plaintiff had been paid out properly.

23.	On 6 June 2014, the plaintiff wrote to the CEO maintaining his claim that he had been harshly and unfairly terminated. Apart from denying the evidence in support of the disciplinary charges, he advised that he was never formally advised of his right to appeal his termination, allowed by Eda Ranu’s Employee Code of Conduct. 

24.	The Compulsory Conference never properly concluded, resulting in the plaintiff filing this proceeding on 7th May 2015.

RELIEF SOUGHT

25.	The plaintiff claims the following principal relief:

1.	A declaration by way of an order that the entire disciplinary process taken by the defendants against the plaintiff as a whole has breached Section 41 of the Constitution and is therefore null and void and of no effect due to the actions taken not being reasonably justifiable in a democratic society.
2.	A declaration by way of an order that the actions of the first and second defendant actions of the first and second defendants has breached Section 41 of the Constitution and the human rights of the plaintiff in that he was treated harshly and oppressively in so far as the disciplinary proceedings as commenced and concluded  and therefore the actions of the first and second defendants against him are illegal, null and void and of no effect due to the breach of Section 41 of the Constitution.
3.	An order that the defendants are liable to pay the plaintiff’s damages as a consequence of the unlawful actions taken against the plaintiff individually and as a whole and such damages to be assessed by the Court.

ISSUE

26.	The main issue for determination is whether the plaintiff’s termination was unlawful in terms of s.41 of the Constitution: was it harsh and oppressive, and was it not reasonably justifiable in a democratic society?

CONSIDERATION

27.	Section 41 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.
(My underlining)

28.	The defendants strongly maintained that proper disciplinary process was followed in dealing with the plaintiff. 

29.	The plaintiff, on the other hand, stated in his affidavit Exhibit P1 that his claim of being “harshly, unfairly, unjustly and unreasonably terminated” was raised in his letter of 6 June 2014 to the CEO. That letter was written during the process of Compulsory Conference with the Department of Labour and Industrial Relations. In that letter, the plaintiff discredited the evidence in support of the charge of insubordination, by suggesting it was untruthful, and he also alleged that he was not made aware of his right to appeal against his termination. There is no other evidence upon which the plaintiff relied upon to establish his claims based on s.41 of the Constitution.  

30.	An employer can hire and fire at will, with or without good reasons and without giving a right to be heard: Jimmy Malai v PNG Teachers Association [1992] PNGLR 568; New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946, unless a contract of employment provides otherwise. The plaintiff was not employed under contract, so the hire and fire policy applied. The plaintiff was not entitled to be heard but was nevertheless given the opportunity. His assertion that the evidence in support of the disciplinary charges was untruthful is of no consequence. Even if he was not made aware of the appeal process, that does not affect the employer’s right to hire and fire. The plaintiff was able to be terminated for any reason or no reason.   

31.	The onus of proving a proscribed act under s.41 of the Constitution rests with the claimant. The evidence produced by and relied upon by the plaintiff falls far short of properly satisfying me that his termination by Eda Ranu was harsh and oppressive, and not reasonably justifiable in a democratic society as contemplated by s.41.

32.	I dismiss the plaintiff’s claims. 

33.	Whether or not the plaintiff was properly paid out was not raised by the plaintiff so I will not discuss that aspect except to note that Eda Ranu gave evidence that the plaintiff was correctly paid his dues on termination. 

ORDER

34.	The orders of the Court are:

(1)	The plaintiff’s claims are refused, and this proceeding is hereby dismissed.
(2)	The plaintiff shall pay the defendants’ costs of and incidental to this proceeding, to be taxed if not agreed.
(3)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith
________________________________________________________________
B S Lai Lawyers: Lawyer for the Plaintiff
Centurion Lawyers: Lawyer for the Defendants