N9855

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 17 OF 2015

VINCENT PANGALI
Plaintiff

-V-

MICHAEL ELLISON in his capacity as Manager Power and as Acting General Manager Processing
First Defendant

SHAWN OSSER in his capacity as General Manager Processing
Second Defendant

DERRICK KELLY in his capacity as General Manager Business Support & Strategy
Third Defendant

HAROLD DUIGU in his capacity as Manager Human Resource
Fourth Defendant

MUSJE WERROR in his capacity as THE Chief Operating Officer
Fifth Defendant

NIGEL PARKER in his capacity as Managing Director/Chief Executive Officer
Sixth Defendant

SIR MOI AVEI in his capacity as Chairman of Ok Tedi Mining Ltd Board
Seventh Defendant

OK TEDI MINING LIMITED 
Eighth Defendant

Waigani:  Kariko, J
2018: 14th & 22nd May
2021: 25th June

EMPLOYMENT – contract of employment – termination – whether in breach of contract – proof of claim 

The plaintiff claimed he was unlawfully terminated from his employment in breach of his contract of employment. He also alleged that his termination was harsh and oppressive under s 41 Constitution.

Held:

1.	There was no breach of the contract of employment, so the termination was not unlawful.

2.	The plaintiff has the onus of proving the circumstances described in s 41 Constitution and he failed to discharge the onus.

Cases Cited:

Ayleen Bure v Robert Kapo (2005) N2902
Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Leo Nuia v The State (2000) N1986 
Peter Aigilo v Mekere Morauta (No..2) (2001) N2103 
Tau Gulu v PNG Defence Force Savings and Loan Society Ltd (1995) N1399
William Maninga v Ramu Sugar Ltd (2010) N4118

Legislation:

Constitution

Counsel:

Ms V Abone, for the Plaintiff
Mr A Chillion, for the Defendant

LIABILITY

This was a trial on liability

25th June, 2021

1.	KARIKO, J: The plaintiff was an employee of eight defendant (OTML) until his termination by the company on 8th January 2015, which he claims was unlawful.

2.	A trial on both liability and damages was heard.

EVIDENCE

3.	Evidence at the trial comprised affidavits tendered without objection.

4.	The plaintiff produced three affidavits he deposed to:

•	Affidavit filed 21st January 2015 (Exhibit P1)
•	Affidavit of filed 17th February 2015 (Exhibit P2)
•	Affidavit of filed 25th October 2016 (Exhibit P3)

5.	The evidence for the defendants comprises:

•	Affidavit of Musje Werror, Chief Operating Officer for OTML, filed 13th February 2015 (Exhibit D1). This witness was the and Acting Managing Director of OTML.
•	Affidavit of Herold Duigu, Human Resource Manager for OTML, filed 16th February 2015 (Exhibit D2)
•	Affidavit of Dr James Gissua, Principal Advisor for Employee Relations for OTML, filed 12th June 2015 (Exhibit D3)
 
6.	The affidavit evidence discloses the following relevant facts that are clearly not in controversy. 

7.	The plaintiff entered into a contract of employment with OTML for expatriate employees on 4th May 2014 for the position of Technical Service Superintendent at Bige, Kuinga, Western Province (the Contract).

8.	After completion of his probation, he was confirmed as a permanent employee.

9.	At the end of December 2014, the plaintiff took up temporary residence in Lodge 11, Tabubil to oversee the operations of the concentrator crusher while his General Manager was away on leave. 

10.	On the evening of 3rd January 2015, the plaintiff went to the Kiunga Country Club at the invitation of the Mine Manager Iso Ealedona and in the company of three others, and drank alcohol until well after the Club closed trading. 

11.	They left the Club in Iso’s vehicle, driven by the owner. While driving at around 11.20 pm, the car sustained a punctured tyre, so Iso drove into OTML’s Workshop 1 to have the tyre fixed. Workers from the workshop witnesses this entry and immediately reported the unauthorized entry to the Asset Protection Department (which is responsible for the security of the company’s properties). Officers from the Department responded by attending the scene to investigate, where they found the plaintiff and his accomplices in the process of changing tyres. The security officers realized that the plaintiff and his accomplices were drunk and that their presence at the workshop was without authorization. They were questioned and asked to submit to a breathalyzer test. Only Iso complied with the request. After changing the tyre, they went home.  

12.	Subsequently, the Asset Protection Department prepared its report of the incident. OTML management reviewed the report including the witness statements and decided to suspend the plaintiff from duties with pay on 5th January 2015. The suspension notice was issued by the plaintiff’s immediate supervisor, Aihi Areni.

13.	On 7th January 2015, OTML management decided to terminate the plaintiff for cause, namely, for entering OTML workplace while under the influence of alcohol. The termination notice was issued by the first defendant, Michael Ellison, and endorsed by the fourth defendant, Harold Duigu. 

14.	The plaintiff appealed his termination to the fifth defendant Musje Werror, the Acting Managing Director, who refused the appeal.

15.	The plaintiff was paid K11, 000.00 as his termination pay, for the number of days worked.

PLAINTIFF’S CLAIM

16.	The plaintiff contends that he was terminated without cause. 

17.	In his Statement of Claim, the plaintiff pleads:

[12] – 	Under the Contract, OTML could terminate him for cause on these grounds:
(a)	Failure to comply with the terms and conditions of the Contract; or
(b)	Breach of OTML’s Golden Workplace Rules; or
(c)	Conduct warranting dismissal under the laws of Papua New Guinea.

[13] – 	It was a term of the Contract that only the Manager Human Resources could approve a recommendation for termination.

[14] – 	The Golden Workplace Rules prohibited an employee from: 
(1)	attending work under the influence of alcohol and drugs; and
(2)	bringing alcohol or drugs into OTML workplaces.

[17] – 	He did not breach the above prohibitions under the Golden Workplace Rules nor did he breach any OTML policy, as he was only a passenger in a vehicle driven by Iso Ealadona.

[18] – 	He was unlawfully suspended, and terminated without cause because:
(1)	The offence for which he was charged is not provided in the Golden Workplace Rules;
(2)	The circumstances did not warrant termination;
(3)	There was no Board resolution endorsing the suspension and termination.

[19] – 	OTML breached the Contract on grounds that:
(1)	The offence for which he was terminated is not provided in the Golden Workplace Rules;
(2)	Recommendation for termination was given to the Manager Human Resources;
(3)	The Manager Power/Acting General Manger Processing did not have the power to terminate the Contract.

[21] – 	The circumstances of his termination were harsh and oppressive, not warranted, disproportionate, and not reasonably justifiable in a democratic society, and accordingly in breach of s. 41 of the Constitution. 

[22] – 	He is therefore entitled to salary and benefits for the balance of his contract, general damages, special damages, interest and costs. 

TERMINATION CLAUSES 

18.	The Contract includes the Expatriate Terms and Conditions (the ET&C), which contains the following provisions relating to termination of employment:

Notice of Termination of Employment

Your employment contract may be terminated by:
•	you giving the Company at least 1 months’ notice in writing
•	the Company giving you at last 3 months’ notice in writing or paying you three months’ pay
•	the Company terminating your employment for cause without payment or any notice period. 

Should you give the Company less than 1 months’ notice the Company may deduct from any accrued benefits payable to you, a sum of money equivalent to that which would have been paid to you in respect of the notice period.

Termination for cause

You may be terminated for cause if you do not follow these Terms and Conditions, breach the Company’s Golden Workplace Rules or behave in a manner that justifies dismissal under the law of Papua New Guinea.

Recommendations for termination by the Company require the approval of the Manager Human Resources. 

19.	The introductory statement in the ET&C reads:

These are your general Terms and Conditions of employment, please review then carefully in conjunction with out HR Policies and Procedures, which are available on the intranet and which may be reviewed from time to time. If you are unclear about any conditions please discuss with a member of OTML’s Workplace Relations team.

20.	The Golden Rules Workplace lists the kind of employee behaviour that may warrant dismissal from employment, and includes:

•	Attendance in any OTML workplace under the influence of illicit drugs, buai, alcohol or other intoxicating substances.
•	Breaching any of OTML’s Policies and Procedures.  

21.	Among other things, OTML’s Alcohol Policy states that:

•	An employee shall not enter a workplace under the influence of alcohol (Clause 5)
•	A positive result will be assumed where an employee refuses to undergo an alcohol test (Clause 5)
•	Positive tests shall be reported to management for the institution of disciplinary process in consultation with the Executive Manger Human Resources (Clause 5.2)

22.	OTML’s Disciplinary Procedure provides that:

•	An alleged incident of unacceptable behaviour by an employee shall be investigated by the employee’s immediate supervisor and the HR Coordinator and concluded within 3 days. (Clause 1.0)
•	Recommendations on the action to be taken must be agreed to by the Departmental Head and the HR Coordinator and implemented within 5 days of the incident being reported. (Clause 1.0)
•	Serious breaches that may warrant instant dismissal includes being under the influence of alcohol in the workplace. (Clause 2.0)
•	A recommendation for termination must be endorsed by the Manager HR.

23.	In accordance with OTML’s Open Door Policy, an appeal may be submitted to the Managing Director, whose decision is final. 

PLAINTIFF’S SUBMISSIONS 

24.	The plaintiff submitted that his termination was unlawful for these reasons:

(1)	He did not breach the Golden Rules Workplace.
(2)	None of the grounds for termination for cause existed.
(3)	The proper disciplinary process was not followed. 
(4)	The termination was harsh and oppressive pursuant to s.41 of the Constitution.

CONSIDERATION

25.	Generally, where parties have reduced their agreement into writing, the document should be allowed to speak for itself, and no extrinsic evidence can be allowed to add to, subtract from or contradict the language of the document: Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285. 

26.	If an employee is not terminated in accordance with the agreement of employment, that amounts to an unlawful termination; Leo Nuia v The State  (2000) N1986 and Peter  Aigilo v Mekere Morauta (No..2) (2001) N2103.

27.	In private law, 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).

28.	In a case for wrongful dismissal or unlawful termination of employment, the National Court does not sit to rehear the evidence as to whether the employee should have been dismissed, but shall only inquire into the circumstances of dismissal to determine whether the employer breached the contract of employment. If the court finds that the employer had before it evidence which, if accepted, would constitute misconduct under the terms of the contract of employment, the conclusion will generally be that there was no breach of contract; Tau Gulu v PNG Defence Force Savings and Loan Society Ltd (1995) N1399; William Maninga v Ramu Sugar Ltd (2010) N4118. 

29.	I am satisfied there is evidence, if accepted, would constitute the alleged misconduct against the plaintiff. There is no dispute that the plaintiff was under the influence of alcohol and was in an OTML workplace without authorization, and where other employees were at work.  Pursuant to the Contract, he was not only subject to the Golden Rules Workplace, but he was obliged to comply with his employer’s HR policies. That includes the Alcohol Policy which prohibited an employee from entering a workplace under the influence of alcohol.

30.	The plaintiff also argued that OTML’s disciplinary process was not followed. In his pleadings, he alleges that: 

•	The General Manager Power did not have the authority to suspend him.
•	There was no Board resolution that he be suspended or terminated.
•	The reason for his suspension and termination is not contained in the Golden Rules Workplace.
•	 The circumstances of the case did not warrant termination.

31.	In my view, the suspension was in accordance with Clause 1 of OTML’s Disciplinary Procedure. It was an action initiated by the plaintiff’s immediate supervisor and not the General Manager Power. I note also that the recommendation for termination was properly endorsed by the HR Manager. 

32.	Under the same Policy, the Board has no role in any decision whether or not to suspend or terminate an employee such as the plaintiff. 

33.	As I noted earlier, there was more than sufficient evidence for the OTML management to find that the plaintiff had breached the Golden Rules Workplace and the Alcohol Policy which prohibited an employee from entering a workplace under the influence of alcohol. 

34.	I am therefore not satisfied on the balance of probabilities that the plaintiff’s termination was unlawful.

35.	As to the claim based on s. 41 of the Constitution, I find it unsubstantiated and has no foundation. This provision basically states that even if an act is done under a valid law, it is unlawful if it is:

•	Harsh; or
•	Oppressive; or
•	Not warranted by the requirements of the particular circumstances;
•	Disproportionate to the requirements of the particular circumstances;
•	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.

36.	The burden of showing that an act falls under one of the categories prescribed in s.41 rests on the claimant. 

37.	The plaintiff cited the case of Petrus and Gawi v Telikom PNG Ltd [2008] PGNC 85, and relied on Cannings J’s observation that harsh and oppressive conduct referred to in s.41 may include an act that is ‘unfair’ ungentle, unpleasant or unwarranted given all the circumstances of the particular case”. 

38.	That reference does not assist the plaintiff’s claim. I am not persuaded that his termination of employment was harsh and oppressive, or falls into any of the other categories listed in s.41. The plaintiff was terminated for cause, and his termination was processed in accordance with his contract of employment.

CONCLUSION

39.	In my opinion, the plaintiff has not proven to the requisite standard, his claim of unlawful termination of employment. Accordingly, I dismiss this case with costs in favour of the defendants.  

ORDER

40.	I order that:

(1)	The proceeding is dismissed.
(2)	The plaintiff shall pay the defendants’ 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.
________________________________________________________________
Greg Manda Lawyers: Lawyer for the Plaintiff
Allens Lawyers: Lawyer for the Defendant