N9894

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1344 OF 2016

JOSEPHINE ANGI
Plaintiff

-V-

AIR NIUGINI LIMITED
Defendant

Waigani:  Kariko, J
2018: 20th June & 5th July
2021: 16th April

EMPLOYMENT – contract of employment – alleged breach – probationary female employee – employee pregnant when applying for position – requirement to notify employer of pregnancy “as soon as possible” – employer advised near end of probationary period – whether termination in breach of contract - particulars of breach not pleaded - right to be heard – whether applicable

The plaintiff was offered employment as a probationary officer when she was a month pregnant. While the conditions of her employment required her to give notice of pregnancy “as soon as possible”, she did not do so until some seven months later and near to her giving delivery. She was then still a probationary officer. Her employer asked to resign and when she did not, she was terminated. She sues for unlawful termination claiming her employer breached her contract of employment by (a) not allowing her maternity leave; (b) failing to comply with the disciplinary procedures; and (c) not allowing her the right to be heard.

Held:

1.	The plaintiff committed a breach of the contract of employment by not advising of her pregnancy “as soon as possible’. 
2.	The allegation of non-compliance with the disciplinary procedures must be adequately pleaded.
3.	The claim based on the right to be heard is considered abandoned as no submissions were presented.
4.	In private law, the employer has the right to hire and fire unless the contract of employment states otherwise.  

Cases Cited:

Ayleen Bure v Robert Kapo (2005) N2902
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568 
Joseph Charlie v Dr Thomas Webster and the National Research Institute (2008) N3408
Pama Anio v Aho Baliki (2004) N2719
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Legislation:

Employment Act
Industrial Relations Act

Counsel

Mr A Ayako, for the Plaintiff
Mr N Kopunye, for the Defendant

LIABILITY

This was a trial on liability regarding a claim for breach of contract of employment

16th April, 2021

1.	KARIKO, J: The plaintiff claims that she was on 4th April 2012 unlawfully terminated from her employment with the defendant (Air Niugini) in breach of contract and seeks damages and reinstatement as her main relief. 

BACKGROUND

2.	The following relevant and undisputed facts are disclosed by the evidence.

3.	By letter dated 16th August 2011, Air Niugini offered the plaintiff employment as a Component Management Officer on probation for six months (the Offer Letter). 

4.	The letter explained that confirmation to the position was subject to satisfactory performance and favourable recommendation of her Supervisor.

5.	The letter also attached the following documents that the plaintiff was advised to read, and sign off to acknowledge her understanding of the contents:

•	Company Code of Conduct
•	The Drug and Alcohol Policy
•	The NAEA Agreement, which is the Air Niugini and National Airline Employees Association of Papua New Guinea Members Agreement 2005. 

6.	In my view, the Offer Letter, the Company Code of Conduct, the Drug and Alcohol Policy, and the NAEA Agreement, together comprised the plaintiff’s contract of employment (the Contract). 

7.	The plaintiff accepted the offer of employment on 18th August 2011, and commenced duties on 22nd August 2011.

8.	At that time, the plaintiff was already one month pregnant.

9.	On 21st February 2012, a day before the six months probationary period was due to lapse, the plaintiff sent an email to the HR Officer regarding maternity leave, but she did not get a response.

10.	The plaintiff continued working until 5th March 2012 when she was advised by her Department Manager to obtain a medical report and submit her application for maternity leave. She attended to both and lodged the documents with the HR Department the next day. 

11.	 On 9th March 2012, she was called in by her Manager and the HR Officer, and asked to tender her resignation due to her pregnancy while on probation. She was further advised that the company would terminate her if she did not resign. 

12.	The plaintiff refused to resign, and a number of communications followed from the plaintiff to Air Niugini management, questioning why she would be terminated due to her pregnancy, but again she received no response.

13.	She continued working until she gave birth on the night of Friday 23rd March 2012.

14.	The plaintiff returned to work the next Monday and worked until 4th April 2012 when she was served a notice of termination from employment. The reason for her termination stated that she failed to meet company standards in her performance during probation. 

15.	The plaintiff subsequently lodged a complaint regarding her termination with the Department of Labour & Industrial Relations (DLIR) in May 2012. 

16.	The Industrial Division of DLIR considered the complaint and concluded the plaintiff was wrongfully terminated. This was communicated to Air Niugini by letter dated 25th May 2012, with a recommendation that the plaintiff be reinstated. 

17.	When the defendant did not respond to that letter nor a follow-up letter in July, DLIR, acting pursuant to the Industrial Relations Act, gave notice dated 23rd October 2012 to Air Niugini to enter into negotiations to settle the dispute. 

18.	Again, the defendant did not respond, to which DLIR gave notice dated 6th November 2012 of a Compulsory Conference to be held to resolve the matter.  

19.	At the end of the Compulsory Conference, the DLIR determined that: 

•	the defendant breached the NAEA Agreement and s.36 of the Employment Act in terminating the plaintiff; and 
•	the plaintiff was not given the right to be heard; and 
•	the decision to terminate was “harsh, unfair, unreasonable, and oppressive”.  

20.	DILR recommended that the plaintiff be reinstated, and back-paid all her salary and entitlements. 

21.	Air Niugini refused to act on the recommendations despite follow-ups from DLIR and lawyers for the plaintiff.

22.	Finally, the plaintiff filed this action on 19th October 2016.

CLAIM AND RELIEF

23.	The plaintiff’s cause of action, breach of contract, is pleaded in [8], [10] and [14] of her Statement of Claim:

8. 	At the material time, the Plaintiff was pregnant to her daughter Jamina Ambuari and asked the Defendant for Maternity Leave but the Defendant failed to adhere to the Plaintiff’s request thereby breaching clause 18.5 of the agreement.

			PARTICULARS OF BREACH OF DUTY

a)	The Defendant failed to discharge it contractual obligation to grant the Plaintiff her right of maternity leave,
b)	The Defendant failed to act with due care and attention to a pregnant woman to allow her enough time to labour, and
c)	The Defendant acted without regard to humanity and unjustly enriched itself at the cost of the Plaintiff’s life threatening situation when the infant was dure shortly.
……………………………………………………….
10. 	However by a letter dated 04th April 2012, the Defendant dismissed the Plaintiff instantly without adhering to the termination procedures prescribed under clause 5 of the agreement. 
……………………………………………………….
14. 	The Defendant further breached Section 59 of the Constitution and denied the Plaintiff her right to be heard before affecting the said termination.”
(Underlining for emphasis)

24.	The defendant contended that [8] pleads the tort of negligence rather than breach of contract. While I note that this pleading is somewhat jumbled, I accept the gist of the plaintiff’s allegation is that the defendant committed a breach of contract by not complying with cl. 18.5 of the NAEA Agreement. 

25.	The plaintiff claims a further breach of contract asserting in [10] that procedures for termination that are prescribed in cl. 5 of the NAEA Agreement, were not followed by her employer.

26.	At [14], the plaintiff pleads that Air Niugini denied her the right to be heard before being terminated, thereby contravening s. 59 of the Constitution.

27.	It is noted that the proceedings conducted by the DLIR, and the Department’s recommendation in respect of the plaintiff’s case, do not form part of the cause of action in this proceeding.

28.	In her prayer for relief, the plaintiff seeks:

(1)	Damages (special and general)
(2)	Reinstatement
(3)	Costs

ISSUE

29.	The short question for determination is whether the plaintiff was unlawfully terminated? 

APPLICATION OF NAEA AGREEMENT

30.	According to the definition of “Employee” under cl. 2(c) and cl. 3, the NAEA Agreement applies only to members of the National Airline Employees Association of Papua New Guinea. Whether or not the plaintiff was a member of the Association was not raised as an issue. It is assumed that she was, and therefore the Agreement applied to her. 

STATUS OF EMPLOYMENT

31.	Mr Ayako, for the plaintiff, contended that it was an implied term of the Contract that if Air Niugini failed to review and appraise her performance upon the expiry of her probation period, it would be assumed that she was confirmed to her position.

32.	That proposition is misconceived. It is common knowledge that the purpose of placing a new employee on probation is to see how the employee fares in his or her duties over a prescribed period. This is done via a process of review and appraisal of the performance at the end of the period. If the employee executes the duties satisfactorily, he or she may be confirmed to the position but not otherwise. It is a matter totally within the discretion of the employer. In fact, it is implied that until the review and appraisal is done, the employee still remains on probation. The review and appraisal may not happen by the expiry date of the probationary period, depending on circumstances. 

33.	I endorse the statement by Davani J in Joseph Charlie v Dr Thomas Webster and the National Research Institute (2008) N3408 that a probationary employee does not have security of employment.

34.	I find that the plaintiff was still a probationary employee when she was terminated.

PLAINTIFF’S SUBMISSIONS

35.	In support of the plaintiff’s claims, Mr Ayako argued that:  

(1)	Air Niugini failed to comply with cl. 18.5 of the NAEA Agreement and breached s. 100 of the Employment Act, in dealing with the plaintiff’s pregnancy; and 
(2)	Air Niugini failed to act according to cl. 5.1 and cl. 5.2 of the NAEA Agreement, in processing the plaintiff’s termination; and
(3)	Air Niugini failed to afford the plaintiff the right to be heard under s. 59 of the Constitution, in respect of the grounds for her termination.

36.	Counsel submitted that the expression “as soon as possible” found in cl. 18.5.1(b) of the NAEA Agreement, means when it suits or is appropriate to the employee. Counsel also added that when the plaintiff applied for maternity leave, she had already been employed for more than three months, so Air Niugini was obliged to grant her maternity leave, or terminate her employment if she consented. 

37.	It was also argued that Air Niugini failed to follow the provisions of cl. 5 of the NAEA Agreement, but no specific provision was referred to. 

38.	Perhaps due to oversight, no submissions were advanced regarding the right to be heard.

MATERNITY LEAVE

39.	In respect of maternity leave, cl. 18.5 of the NAEA Agreement relevantly states, among others, that: 

•	a female employee in entitled to maternity leave unless she asks for termination by giving two weeks’ notice (cl. 18.5.1(a)(i)); 
•	s. 100 of the Employment Act applies if the employee has been employed for less than 3 months (cl. 18.5.1(a)(ii)); and
•	the employee must notify Air Niugini in writing of her pregnancy “as soon as possible” together with medical evidence of the pregnancy, including how many months she is pregnant (cl. 18.5.1 (b)).

40.	It is noted that cl. 18.5(1)(a)(ii) of the NAEA Agreement is consistent with s. 100 of the Employment Act which provides that an employer shall not terminate a female employee who is pregnant without her consent, unless she is less than 90 days pregnant.

41.	In the present case, the plaintiff applied for maternity leave on 5th March 2012, when she was some 8 months pregnant. She was already pregnant when she was offered employment by Air Niugini, meaning that for the first seven months of her employment, she did not disclose her pregnancy to her employer. I am in no doubt that she breached her obligation under Clause 18.5.1(b), to disclose the pregnancy “as soon as possible”. I am also of the strong view that the plaintiff purposely withheld the fact of her pregnancy to avoid jeopardizing the opportunity of being offered employment, and maintaining it. 

42.	The Offer Letter advised the plaintiff to read through and understand the terms of the NAEA Agreement before accepting the offer. There is a therefore a strong assumption that she read the Agreement, and she would have definitely looked up the provisions relating to pregnancy and maternity leave, because she was then one month pregnant.

43.	She says that by her email of 21st February 2012 to the HR Officer, she gave notice of her pregnancy and sought maternity leave. That is far from correct. The pertinent part of the email reads “I just would like to enquire about maternity leave condition for probation”. That simply cannot be construed as informing her employer of her pregnancy, or as an application for maternity leave.  Rather, it seems a craftily worded inquiry of a general nature to perhaps obtain confirmation of what she had read in the NAEA Agreement regarding pregnancy. In any case, this communication happened some six months after she started work with Air Niugini.

44.	It is also apparent that it was only when it was close to her due delivery time, that the plaintiff decided to submit her application for maternity leave. By then, Air Niugini was aware of her pregnancy and clearly had realized that the plaintiff had been pregnant from the start of her employment and had not disclosed it much earlier when she was required to.  

45.	Air Niugini’s obligations in relation to maternity leave under the NAEA Agreement would obviously be triggered upon being made aware of a female employee’s pregnancy. The obligation to notify Air Niugini of the pregnancy is naturally on the employee, and pursuant to cl. 18.5.1 (b) of the NAEA Agreement, the notification must be in writing and provided “as soon as possible”, together with a doctor’s report confirming the pregnancy.  

46.	The plaintiff was aware in August 2011 that she was then one month pregnant. It cannot be seriously suggested that informing her employer some seven month later is notification given “as soon as possible”. This expression necessarily refers to time calculated from when a female employee becomes aware that she is pregnant.    

47.	Counsel for the plaintiff suggested his client only had to advise Air Niugini of her pregnancy when she considered it was the right time to do so. This is a mischievous submission. As already noted, the reference point is from when an employee becomes aware of her pregnancy. The early advice to her employer would have then allowed the employer to deal with her according to the terms and conditions of her employment, and the relevant employment laws. 

48.	It follows that the plaintiff breached her duty under cl. 18.5.1(b) of the NAEA Agreement. Her claim that the defendant breached cl.18.5 in not approving nor granting her maternity leave, must therefore fail.

TERMINATION  

49.	Termination of employment is covered by cl. 5 in the NAEA Agreement. A number of aspects are addressed:

•	Suspension and termination in serious disciplinary cases - cl. 5.1
•	Either Air Niugini or an employee may terminate employment by serving four weeks written notice to the other – cl. 5.2
•	In cases other than serious disciplinary offences, Air Niugini or the employee may terminate without notice, and pay in lieu of notice, but payment may be waived by agreement – cl.5.3(a) and (b)
•	The employee or NAEA may appeal against termination to the Chief Executive Officer of Air Niugini – cl.5.3(d)
•	In cases where an employee is terminated without notice or payment in lieu, reasons for the decision must be given – cl.5.3(e)
•	A dispute over dismissal without notice may be referred to the Secretary of DLIR for a decision – cl.5.3(f)  

50.	Clearly, there are different scenarios and aspects relating to termination of employment that are addressed in cl. 5. While the plaintiff has alleged that the procedure under this provision was not followed by Air Niugini, she did not plead particulars of the alleged breach.  The pleading is in general terms, and merely states “the Defendant dismissed the Plaintiff instantly without adhering to the termination procedures prescribed under clause 5 of the agreement”.   

51.	In relation to the law on pleadings, Kandakasi J stated in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694 that “unless there is foundation in the pleadings of a party, no evidence…. of matters not pleaded can be allowed.”

52.	On the basis of lack of adequate pleading, the plaintiff’s claim based on breach of cl. 5 must be dismissed. 

53.	That apart, in private law, which applies to Air Niugini, an employer has the right to hire and fire his employees, with or without good reasons and without giving a right to be heard. (Jimmy Malai v PNG Teachers Association [1992] PNGLR 568) unless the terms of a contract of employment provides otherwise (Ayleen Bure v Robert Kapo (2005) N2902)

54.	Under cl. 5(3)(e), where Air Niugini dismisses an employee without notice, as in the present case, the employee shall be informed in writing. That was done. There is no evidence that the plaintiff had the right to be heard before termination. The Offer Letter and the NAEA Agreement make no reference to this requirement, nor was it argued that the other contract documents, the Company Code of Conduct and the Drug and Alcohol Policy provided for this. Both the Code and the Policy were not produced.

55.	The plaintiff argued that Air Niugini unlawfully changed the grounds for termination from sub-standard performance, to failing to disclose her pregnancy. I consider there was no change in the grounds. The sub-standard performance was in fact the failure to disclose the pregnancy when required to do so. Air Niugini viewed this as misconduct.  It is also noted that under the common law, an employer may terminate employment for reasons not specified or relied upon at the time of termination; Pama Anio v Aho Baliki (2004) N 2719.

56.	One can well understand why Air Niugini would consider the failure to disclose the pregnancy as misconduct that warranted immediate termination without notice. The failure to disclose was deceitful. If the plaintiff had informed Air Niugini of her pregnancy when applying for employment, in all likelihood, her application would not have been considered. If she had divulged the pregnancy upon being employed or within three months thereafter, she would have been liable for summary termination under s. 100 of the Employment Act and cl. 18.5.1(a)(ii)) of the NAEA Agreement. 

RIGHT TO BE HEARD

57.	As the plaintiff offered no submissions on s. 59 (2) of the Constitution and the right to be heard, I consider this claim to be abandoned. However, I make two quick points:

(1)	s.59 of the Constitution applies to a public body or public authority, which Air Niugini is not.
(2)	There is no evidence that the Contract provided for an employee to be afforded the right to be heard before termination.

CONCLUSION

58.	I dismiss the plaintiff’s claims with cost in favour of the defendant. 

ORDER

59.	I order that:

(1)	This proceeding is dismissed in its entirety.
(2)	The plaintiff shall pay the defendant’s costs, 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.
________________________________________________________________
Haiara Legal Practice: Lawyer for the Plaintiff
Kopunye Lawyers: Lawyer for the Defendant