N9269
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 54 OF 2018

HENRY SENGI
Plaintiff

V

AIR NIUGINI LIMITED
First Defendant

JOE FOE, AVIATION EXECUTIVE SECURITY MANAGER
Second Defendant

REI LOGONA, HUMAN RESOURCES MANAGER
Third Defendant

Waigani: Cannings J
2021: 29th October, 9th, 12th November

HUMAN RIGHTS – Constitution, s 41 (proscribed acts) – whether defendants’ actions in terminating employment of plaintiff were harsh or oppressive or otherwise proscribed acts – Constitution, s 48 (freedom of employment) – allegation that plaintiff’s former employer instructed plaintiff’s new employer that his employment be terminated – whether any evidence in support of allegation.  

The plaintiff was employed by Air Niugini Ltd, the first defendant, as a senior security officer at Jackson’s Airport. He was on duty when he picked up an envelope that had been left behind by a customer at an unattended check-in counter. The plaintiff still had possession of the envelope, which contained K2,200.00 cash, when the customer returned 30 minutes later to look for his envelope. The plaintiff handed over the envelope and the cash. Two months later he was suspended without pay and asked to answer an allegation that he had attempted to steal the envelope and cash. He responded, denying the allegation. An internal investigation was conducted and it was concluded that he had breached Air Niugini’s code of conduct regarding obeying policies and procedures, honesty and integrity and stealing. His employment was terminated. He then applied for enforcement of human rights and was directed by the Court to file a statement of claim, which he did. The defendants filed a defence and a trial was conducted. The plaintiff sought K353,794.00 damages for breaches by the defendants of s 41 (proscribed acts) and s 48 (freedom of employment) of the Constitution. He alleged that he was the victim of harsh and oppressive treatment by the defendants, for the purposes of s 41, and that when he later obtained alternative employment, the defendants had instructed his new employer to terminate his employment which they did, and this amounted to a breach of his right to freedom of employment under s 41. 

Held:

(1)	Section 41 of the Constitution creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution. It is open to an employee to establish a cause of action for breach of human rights by proving that acts of their employer are harsh, oppressive or otherwise proscribed and unlawful under s 41. 

(2)	Section 41(2) provides that the burden of showing a breach of human rights under s 41 of the Constitution rests on the person alleging it and may be discharged on the balance of probabilities. 

(3)	The plaintiff failed to discharge the burden imposed by s 41(2). On the evidence, especially CCTV footage of the incident involving the envelope containing cash, it was reasonable for an employer to conclude that the plaintiff had engaged in conduct that was in breach of standard operating procedures for securing customers’ lost property and dishonest. The defendants gave the plaintiff an opportunity to respond to the allegations and considered his response and made the decision to terminate his employment, which could not be regarded as unreasonable. They did not act harshly or oppressively or in any other way breach s 41(1).

(4)	The plaintiff failed to adduce any credible evidence that Air Niugini had instructed his subsequent employer to terminate his employment. The claim for a breach of his right to freedom of employment was dismissed. 

(5)	All relief sought by the plaintiff was refused and the proceedings were dismissed. 
 
Cases Cited
The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias (2007) SC888
Apolonia Steven v M & S Tsang Ltd (2016) N6577
Application by Karingu [1988-89] PNGLR 276
Asivo v Cocoa Board (2016) N6230 
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Morobe Provincial Government v John Kameku (2012) SC1164
National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Premdas v The State [1979] PNGLR 329
Tipaiza v Yali (2008) N3472

Counsel

H Sengi, the plaintiff, in person
C Joseph, for the Defendants 

12th November, 2021

1.      CANNINGS J: The plaintiff, Henry Sengi, applies for enforcement of human rights regarding the termination of his employment as a senior security officer by his former employer Air Niugini Ltd, the first defendant. Two Air Niugini managers involved in the decision to terminate his employment are the second and third defendants. The plaintiff seeks damages of K353,794.00.  

2.      His employment was terminated following an incident in the international terminal at Jackson’s Airport, Port Moresby on Friday 17 February 2017. He was on duty when he picked up an envelope that had been left behind by a customer at an unattended check-in counter. The plaintiff still had possession of the envelope, which contained K2,200.00 cash, when the customer, in the company of other security guards, returned about 30 minutes later to look for his envelope. The plaintiff handed over the envelope and the cash. 

3.     He was suspended on 21 April 2017 without pay and asked to answer an allegation that he had attempted to steal the envelope and cash. He responded, denying the allegation. An internal investigation was conducted and it was concluded that he had breached Air Niugini’s code of conduct regarding obeying policies and procedures, honesty and integrity and stealing. He was given notice of termination of his employment on 6 June 2017, which took effect on 8 June 2017.

4.     He filed an application for enforcement of human rights on 26 March 2018. He later filed a statement of claim, in accordance with a direction of the Court. The defendants filed a defence and a trial was conducted. 

5.     Four affidavits of the plaintiff and two of his former work colleagues were admitted into evidence. For the defendants, an affidavit by Air Niugini’s Manager Employee Relations, Kilembe Neimani, who conducted the investigation of the allegation against the plaintiff, was admitted into evidence. Mr Neimani also gave oral testimony. Also in evidence for the defendants was a flash-drive containing CCTV footage of the incident of 17 February 2017, showing the plaintiff collecting the envelope from the counter and taking it, tucked inside a newspaper, back to another counter, where he opened the envelope and checked its contents. I have viewed that footage in chambers. 

6.      The plaintiff asserts breaches by the defendants of s 41 (proscribed acts) and s 48 (freedom of employment) of the Constitution. He alleges that he was the victim of harsh and oppressive treatment by the defendants, for the purposes of s41, and that when he later obtained alternative employment, the defendants instructed his new employer to terminate his employment, which they did, and this amounted to a breach of his right to freedom of employment under s 48. 

7.    The defendants deny that any human rights breaches occurred and make a preliminary submission that the proceedings ought to be summarily dismissed due to abuse of process and defective pleading. 

8.     I will deal first with the defendants’ preliminary submission and then address the two alleged human rights breaches before determining whether the plaintiff should be awarded damages.

DEFENDANTS’ PRELIMINARY SUBMISSION

9.     Mr Joseph, for the defendants, submitted that the proceedings are an abuse of process because the plaintiff had in August 2017 disputed termination of his employment by registering an industrial dispute with the Department of Labour, which was still being dealt with under the Industrial Relations Act when he commenced these court proceedings on 28 February 2018. The industrial dispute has not been resolved, so all this time the plaintiff has been running concurrent proceedings.

10.     As for defective pleading, Mr Joseph contended that the plaintiff had not pleaded the jurisdiction of the Court to enforce human rights, so his claim for damages ought to be refused, consistently with my decision in Tipaiza v Yali (2008) N3472. 

11.     I dismiss both arguments. It is clear from the evidence that there were prolonged delays in the industrial dispute. It was alleged by the Department of Labour that Air Niugini was responsible for this. I do not need to decide whether that is so. The fact is that the industrial dispute has never been resolved. It is not clear why. In these circumstances the plaintiff ought not to be blamed for pursuing his grievance in Court. I find no abuse of process on his part.

12.     As for the allegedly defective pleading, the statement of claim pleads in the final paragraph that “the plaintiff therefore claims from the defendants … compensation of K351,594.00 and damages for breaches of human rights under ss 57 and 58 of the Constitution [and] special damages of K2,200.00”. This could have been more clearly expressed, but it is a sufficient invocation of the jurisdiction of the National Court under ss 57 and 58 of the Constitution to enforce human rights and award damages. It was unlike the statement of claim in Tipaiza, which included no reference to ss 57 or 58 and did not plead any specific breach of human rights, but simply pleaded that damages be awarded for breaches of unspecified “constitutional rights”. 

13.     Another reason I am unpersuaded by the defendants’ preliminary submission is that it has been raised late, without notice, at the start of the trial. Both points should have been raised in a notice of motion, filed and heard long ago. It is unfair for a corporate defendant of the size and status of Air Niugini Ltd, represented by private counsel, to raise such arguments on the day of trial; particularly when the plaintiff is a layperson, representing himself. It smacks of an ambush. 

WAS THERE A BREACH OF SECTION 41 OF THE CONSTITUTION?

14.      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.

15.     Section 41(1) proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, 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 a democratic society having a proper regard for the rights and dignity of mankind.

16.     The plaintiff argues that he was treated harshly and oppressively as he made a very good case in defence of the allegation that he deliberately got the envelope containing the cash, intending to steal it, as it was always his intention to return it as soon as practicable. There was a flight coming in from Cairns and he had to attend to that flight before forwarding the envelope and cash to the customer services office. When he was approached by the customer who was looking for his envelope, he handed it over to him with all the cash intact. The customer never complained. The cash was returned safely. His explanation of what happened was never given serious consideration by the defendants as they were too interested in protecting themselves against criticism by the plaintiff who had on a number of previous occasions exposed corrupt practices in the security division of Air Niugini. They failed to consider his long period of service to the company since 1999. He knew that everything in the international terminal was captured by CCTV, so why would he try to steal in full view of the camera? Although it was found that he was guilty of stealing, he was not referred to the police.

17.    Under s 41(2) of the Constitution the burden of showing that another person has acted harshly or oppressively is on the party alleging it, and may be discharged on the balance of probabilities. 

18.     I find that the plaintiff has failed to discharge that burden. Having viewed the CCTV footage of the incident involving the envelope containing cash, I find that it was reasonable for the defendants to allege that the plaintiff had engaged in conduct that was in breach of standard operating procedures for securing customers’ lost property and dishonest. I am satisfied that a reasonable person in the plaintiff’s position, advantaged by 18 years’ experience as a security officer, would realise that upon coming into possession of a large amount of cash left behind by a customer, he was obliged to immediately hand over the cash to a proper authority for safekeeping. The plaintiff did not do that. He kept the envelope and cash in his possession for 30 minutes and only handed it over when he was asked for it. A reasonable inference to draw from the plaintiff’s conduct is that it was his intention to keep the envelope and cash unless and until he was asked for it. 

19.    The defendants gave the plaintiff an opportunity to respond to the allegations and considered his response and made the decision to terminate his employment. Their conclusion that the plaintiff had breached Air Niugini’s code of conduct regarding obeying policies and procedures, honesty and integrity and was involved in stealing was reasonably available on the evidence and circumstances of the case. The fact that the plaintiff was not charged with a criminal offence is inconsequential. The decision to terminate his employment cannot be regarded as unreasonable or harsh or oppressive. I find that the defendants did not act harshly or oppressively or in any other way breach the plaintiff’s rights under s 41(1) of the Constitution.

WAS THERE A BREACH OF SECTION 48 OF THE CONSTITUTION?

20.     Section 48(1) states:

(1)	Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.

(2)	Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.

21.     As I said in Asivo v Cocoa Board (2016) N6230 s 48 confers a right to freedom of choice of employment and to protection against imposition of unlawful qualifications on employment. It does not confer a right to employment or to the practice of employment (Premdas v The State [1979] PNGLR 329, Application by Karingu [1988-89] PNGLR 276, National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264, Allan Pinggah v Margaret Elias (2007) SC888).

22.     The plaintiff alleges that after his employment with Air Niugini was terminated he secured alternative employment with a private security company but only lasted one day before the defendants instructed his new employer that they had to sack him, which they did. 

23.     The defendants deny this allegation and the plaintiff failed to adduce any credible evidence that Air Niugini had instructed his subsequent employer to terminate his employment. I cannot find that any such instruction was given to the new employer. I find that Air Niugini did not interfere with the right of the plaintiff to his choice of employment in any calling for which he was qualified. There was no breach of his right to freedom of employment under s 48 of the Constitution.

SHOULD THE PLAINTIFF BE AWARDED DAMAGES?

24.    No. He has failed to establish any breach of human rights, so he is not entitled to damages. 

25.     Normally costs would follow the event especially in a case such as this where the plaintiff has failed to establish any cause of action. However, as I pointed out in Apolonia Steven v M & S Tsang Ltd (2016) N6577, 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 and prominent employer, and lost. I think the defendants could have handled this matter better. It took two months after the envelope containing cash incident to formally put the allegation to the plaintiff and suspend him. Another seven weeks passed before the plaintiff’s employment was terminated. These are excessive delays. I was unimpressed by the defendants’ lawyers attempt to ambush the plaintiff with technical arguments without notice on the day of the trial. In these circumstances, it would be harsh and oppressive to order costs against the plaintiff. 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)	All relief sought in the plaintiff’s statement of claim filed 21 May 2021 is refused and the proceedings are entirely dismissed. 

(2)	The parties shall bear their own costs. 

(3)	The application for enforcement of human rights is thereby determined and the file is closed. 

Judgment accordingly.
________________________________________________________________
Ashurst PNG Lawyers: Lawyers for the Defendants