N9821

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1130 OF 2015

BETWEEN:
LYNDON MARLEY GORIE
Plaintiff

AND:
GRAHAM LOVE
BRANCH MANAGER
First Defendant

AND:
ZENITH PACIFIC PTY LTD
Second Defendant

Kimbe :  Batari, J
2019	:   24th April
2022	:   22nd July

CIVIL LAW – Employment – Contract – Termination of – Employee terminated for cause after warnings – Whether termination unlawful – held termination not unlawful – case dismissed

Case Cited:
Lingei v OK Tedi (2005) N2912
Apolonia Steven v Ram KC (2016) N6577
New Britain Palm Oil Ltd v Vitus Sukuramu [2008] PGSC 29
Leo Nuia v The State (2000) N1986
Peter Aigilo v Sir Mekere Morauta & Ors (2001) N2103 
Legu Vagi v NCDC (2002) N2280

Counsel:

Mr E. Isaac, for the Plaintiff
Mr G. Garo, for the Defendants

22nd July, 2022

1.	BATARI, J: The plaintiff was a contracted employee with Zenith Pacific Pty Ltd (ZPPL). He brings this action for unlawful termination of employment and consequential loss of entitlements and damages. This is the verdict following a trial by documentary evidence.   

Background 

2.	The plaintiff is an electrical engineer, engaged by ZPPL from 1st May 2014 as the company Maintenance Planner/Schedular for a three-year term under an Employment Contract. The company, ZPPL services the OK Tedi Mining Project (OTML) by operating and maintaining the Tabubil Thermal Power Station.  On 30th July 2015 ZPPL terminated Mr Gorie’s contract. This followed two disciplinary warnings for behavioural indiscretions.

3.	Mr Gorie claims he was terminated contrary to the terms of his Employment Contract and suffered loss of entitlements and general damages as a result. On 6th August 2015, he authored a letter of demand to the Executive Director of ZPPL Mr Gavin Great demanding the payment of the balance of the term of his three-year contract. 

4.	Mr Gavin Great instead, offered the plaintiff two weeks payment in lieu of notice in accordance with Clause 4.1 of the Employment Contract as well as two weeks advance pay. The Executive Director also offered Mr Gorie, redundancy status to avoid the ramifications the termination of contract would have on his employment prospects. The plaintiff however rejected the offer and insisted on litigating the matter in court.    

5.	The plaintiff’s claim is refuted by the defendants whose case is that the plaintiff was lawfully terminated for cause.

Issues 

6.	The issue for trial is two-fold:

1)	Whether the plaintiff’s termination is in conformity with his contract
2)	If yes, is the plaintiff entitled to:
a.	Unpaid field break pay;
b.	Pay in lieu of notice;
c.	Any unpaid entitlement;
d.	Balance of contract?

Evidence 

7.	The plaintiff relies on the affidavits of: 

(i)	Lyndon M Gorie sworn, 2 February 2016, marked Exhibit P1;
(ii)	Lyndon M Gorie sworn, 24 October 2016, marked Exhibit P2;
(iii)	Lyndon M Gorie sworn, 27 February 2017, marked Exhibit P3;
(iv)	Fabian Eugene sworn, 15 February 2016, marked Exhibit P4. 

8.	The defence relies on the Affidavit evidence of:

(i)	Ms Rebecca Stringer-Krein sworn, 15 March 2019, in Exhibit D1;
(ii)	Mr Graham Love sworn, 11 October 2016, marked Exhibit D2;
(iii)	Mr Guguna Karo sworn, 23 April 2019, marked Exhibit D3.

9.	These documentary evidence will be read into the records. I will refer to the affidavit as appropriate in deliberating the issues as set out earlier.

The Termination Notice

10.	On 30th July 2015 ZPPL terminated the Plaintiff’s employment on two principal grounds. The termination Notice reads:

“RE:  Termination of your employment
Lyndon, 
I would like to inform you that your position with Zenith Pacific will be terminated, effective immediately.

As a result of not performing your duties to the best of your ability, Zenith Pacific considers that your conduct is still unsatisfactory and has decided to terminate your employment for the following reasons:

•	Not having parts and spares ready for major rebuilds after receiving numerous direct instructions to get these ready.  As a result of this OTML management have raised this as an issue that we had to act on.

•	You have received two warning letters for previous indiscretions in your behaviour which were signed by you on the 23rd of March 2015 and the 1st of July 2015.

Your employment will end immediately.  Based on your length of service, there is no notice period.  Therefore, your employment will end on the

You will be paid your accrued entitlements and outstanding remuneration, up to and including your last day of employment.  Your outstanding personal travel debt as described and agreed via email correspondence dated 27th of July 2015 will be recovered out of your final entitlements.”

Legislative and Employment Contract provisions

11.	It is pertinent to start with the legislative framework and safeguard for termination of a person under a contract of service with an employer as set out in s. 36 of the Employment Act (Chapter 373). Section 36 (1) relevantly reads: 

“36.	Grounds 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
(iii)	is guilty of a fraud or dishonesty; or
(iv)	is habitually neglectful of his duties; or
(v)	is imprisoned for a period exceeding seven days; or
(vi)	is continually absent from his employment without leave or reasonable excuse; or
(vii)	is convicted of an offence or contravention of this Act or any other law relating to employment; or
(b)	on any other ground on which he would be entitled to terminate the contract without notice at common law.”

This provision is not made subject to the terms of any contract between the parties.  It applies in addition to any contractual term: New Britain Palm Oil Ltd v Vitus Sukuramu (2008) PGSC 29. The legislative intent is to regulate contract of service practices, commonly applied in the private sector domain where the employer has the right to dismiss an employee instantly with or without cause: Lingei v OK Tedi (2005) N2912.  

12.	In practice, dismissals are usually occasioned by cause. As Mr Guguna for the defendants put it, s 36 (1) conveys the notion that the employee has done something wrong that warrants instant dismissal.   

13.	The plaintiff’s employment with ZPPL in this case is by virtue of an Employment Contract. Clause 4.3 sets out the provisions for termination of employment with or without cause.  It reads as follows:

“4.3 	Termination of employment WITHOUT notice and WITHOUT payment where the employee;
i.	Wilfully disobeys a lawful and reasonable order or instruction from Zenith Pacific or OTML; or
ii.	Misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties such as;
a)	Fighting or threatening behaviour and or abusive language; or
b)	Wilful damage to machinery or property; or
c)	Wilful acts which risks safety of self or others
d)	Attending work under the influence of alcohol or drugs including the use of betelnut whilst on duty; or
iii.	is guilty of fraud or dishonesty; or
iv.	is habitually neglectful of his duties and shall fail to show the usual standard of skills in the performance if his contracted duties; or
v.	is imprisoned for a period exceeding seven days; or
vi.	is continually absent from his employment without leave or reasonable excuse; a. or
vii.	is convicted of an offence or contravention of the employment act or any other
viii.	law relating to employment; or
ix.	is in breach of the conditions of this contract as stated in Clause 3”.

14.	Clause 3 also relevantly imposes obligations on the plaintiff as follows:

3.  OBLIGATION OF THE EMPLOYEE

“The Employee shall; 

3.1	Comply with all Zenith Pacific and OTML policies and procedures.  The nature of work in our client’s operations requires you to be aware of site operating and administrative policies and procedures that you must follow.  On arrival, you are required to confirm with the Zenith Pacific Superintendent, which polices, and procedures apply to you and you are then to ensure you read, understand, and follow them.

3.2	Devote your full attention exclusively to the business and affairs of Zenith Pacific and/or OTML at all times during work hours;

3.3	Ensure that you attend to your duties punctually and efficiently.

3.4	Ensure that you faithfully and diligently carry out all lawful and reasonable directions of Zenith Pacific and/or OTML Board of Directors and/or the Management of the Company.”

Whether the Plaintiff’s termination was/is in conformity with his contract 

15.	It is trite law that if an employee is not terminated in accordance with the agreement of the parties, that amounts to an unlawful termination:  Leo Nuia v The State (2000) N1986; Peter Aigilo v Sir Mekere Morauta & Ors (2001) N2103; LeguVagi v NCDC (2002) N2280.

16.	The plaintiff’s contention being, that the defendants improperly terminated the contract for cause, he must prove that none of the grounds of termination fell within the grounds prescribed by s 36(1) of the Employment Act and clause 4.3 of the Employment Contract. 

17.	The plaintiff’s main contention is, that he was unlawfully terminated for causes that are closely linked and rolled into the first allegation of failure to have, “parts and spares ready for major rebuilds after receiving numerous direct instructions to get these ready.” Mr Isaac for the plaintiff submitted, that for the validity of the cause for termination to stand, the plaintiff need only prove that he did not receive direct instructions to have parts and spares ready for the major rebuilding of GW10 machine. The onus is on the defendants to show that the plaintiff was in fact issued numerous directions to have the parts and spares ready and show, how and when those instructions were communicated. 

18.	Counsel submitted that the plaintiff has been made a scapegoat for the fault and inefficiency of other employees responsible for repairing and rebuilding GW10 power generator. 

19.	In his affidavit, the plaintiff spoke of two employees, Joe Larry and Fabian Eugene being specifically tasked to repair and rebuild the G10 generator in the period leading up to his disciplinary charges and termination. Their task included having spares and parts ready for the build-up. 

20.	On the other hand, he was assigned to do urgent priority work on costs analysis for major maintenance services ZPPL has completed and to do comparatives with OTML’s costs on those specific machines. From time to time, he assists Joe and Fabian with aspects of planning works they were unfamiliar with. His involvement with the G10 generator was limited to that extent.

21.	Mr Gorie conceded having been warned twice for indiscretions in his work attitude and behaviour. However, he has taken steps to correct and improve on his erring work attitude and aptitude, one of which was to alter his weekend work duty from Saturday to Sunday so that he can attend Sabbath for service and worship. Mr Gorie also relied on character references from Michael Ellison, Manager, Power Services, and co-authored references from ZPPL, OK Tedi Project Superintendents, Mr V. Daniel Loog Malim, and Mr Simeon Korihio.

Considerations & reasons for decisions
 
22.	It is clear, Mr Isaac’s submissions are largely concentrated on absence of any direct instructions to have spares and parts ready for the rebuilding of GW10 generator and to be involved in the rebuilding work. So, the cause for the plaintiff’s termination did not exist. Even if the reasons for termination are considered separately, neither of them would amount to legal cause to terminate the plaintiff under s 36(1) of the Employment Act and clause 4.3 of the Employment Contract. So, the dismissal was/is unlawful.

23.	I do not accept the plaintiff’s contentions.  Firstly, the two causes cited for the termination are standalone reasons. The reasons standing alone or read together clearly show the relationship between employer and employee have gone bad. They both relate to serious dereliction of duty and are good causes to form the basis for termination of employment under the Act and the Contract.

24.	The charges fell within the ambits of s 36 (1) of the Employment Act for misconduct: that is inconsistent with the due and faithful discharge of his duties (s. 36 (1)(a) (ii)), or for being habitually neglectful of his duties (s. 36 (1)(a) (iv)), or for continually absent from his employment without leave or reasonable excuse (s. 36 (1)(a) (vi)), on any other ground under the common law principles (s. 36 (1)(a) (iv)). It is also possible the plaintiff’s conduct amounted to failure to carry out lawful and reasonable instructions contrary to s 36 (1)(a)(i) of the Act. The same grounds for termination are adopted in Clause 4.3 of the Contract. 

25.	Second, the argument on absence of instructions does not auger well with the principle of hire and fire with or without cause in common law and the provisions of s 36 (1) that an employer may terminate a contract of service without notice. The implication of the phrase, “without notice” is simply that the employer need not disclose a valid reason for the decision to dismiss the employee. Even if the employer gives a reason, the onus is on the employee to show he has a right to be heard and show that his termination was unlawful.  

26.	In this case, the terms and conditions of the plaintiff’s employment with ZPPL is dictated by the Employment Contract that he signed. The Contract has no provision on the right to be heard. There is also no provision for disciplinary procedures agreed to by the parties under the Contract.  

27.	The cause for termination is set out in the letter of termination dated 30/07/2015 as reprinted above. It is apparent, the reasons spelt out in the notice were the culmination of an employer/employee relationship that has gone sour between the ZPPL and the plaintiff. The underlying reason that underpinned the two causes for the termination is apparent from the opening statement:        

“As a result of not performing your duties to the best of your ability, Zenith Pacific considers that your conduct is still unsatisfactory and has decided to terminate your employment for the following reasons:”

28.	It is clear the plaintiff was terminated for non-performance and continued bad behaviour including absenteeism from work without the necessary explanatory documentation, as attested to in the Affidavit of Graham Love, the Second Defendant.

29.	The problem of lack of parts and spares for the generators being serviced by ZPPL and the continued misbehaviour were seriously affecting the performance of the company in providing service to OTML. And OTML management was not happy because the breakdown of generators was affecting its operations. 

30.	I accept, that there were meetings which the plaintiff attended to discuss the technical requirements for GW10 parts and spares. The plaintiff would have been well informed to do something. That was his responsibility be as clearly set out in the scope of the duties and responsibilities of the plaintiff under his Employment Contract.
  
31.	Annexed to the Employment Contract as “Schedule 1” is the position description and scope of the position the plaintiff was contracted to perform as the company Maintenance Planner/Schedular. This document is vital in assessing the lawfulness or otherwise of the plaintiff’s termination.

32.	When one looks at the plaintiff’s job description and scope of position, the duties and responsibilities of a power station Maintenance Planner and Scheduler is very onerous and highly demanding with emphasis on day-to-day planning activities. The duty statement demands, inter alia, that:

“You will be responsible for assisting with the power station’s electrical and mechanical personnel during breakdowns to achieve the best outcome for the business.  As part of your role you will be responsible in planning of all generator and balance of plant services, mid-life and major rebuilds, identify areas of opportunities in cost reductions in personnel, parts scheduling. As part of this role you will be involved in inventory control both rotatable and returnable items through the OK Tedi warehouse facility. Stock holding in the warehouse will require continuous monitoring to ensure the accurate amount of inventory is stocked; this will include scrutiny of existing stock for serviceability. You will analyse, report and make recommendations to management, on maintenance plans and inventory control after major rebuilds.” (Emphasis added)

33.	So, when the maintenance and repair issues arose over GW10 generator not having parts and spares, the responsibility fell squarely on the shoulders of the plaintiff under his Employment Contract. His role included inventory control and constant monitoring of stock holding to ensure the correct amount of inventory is stocked. As the maintenance planner, the plaintiff was required to arrange for spare parts to be available for repairs and rebuilds to ensure there was no interruptions in to ZPPL’s provision of services to OTML. 

34.	The plaintiff, knowing and fully understanding what his duties and responsibilities entails, need not be reminded to perform his role, or carry out his duties. He need not be specifically instructed to perform his duties and responsibilities under his Employment Contract. 

35.	To do so would be undermining his professional ability and integrity to deliver without or with minimum supervision. The records however show that he had neglected his duty and had to be directed to have the parts and spares ready for the rebuild of GW10 machine. He failed his contractual role, and this resulted in OTML management raising grave concerns over ZPPL services as noted from management meeting on 29/7/2015. The plaintiff also attended that meeting.  

36.	It is a lame excuse for the plaintiff to shift the blame to Joe Larry and Fabian Eugene for lack of parts for the GW10 rebuild. The first reason for termination has substantial merits from the facts preceding termination.

37.	The second reason for termination is also well founded. He had within a space of four months been warned twice against unsatisfactory behaviour.  It was observed that the plaintiff had on various occasions failed to turn up for work. He was warned on 23rd March 2015 and subjected to counselling. He continued to display unsatisfactory conduct and was again warned on 1st July 2015.  “Not having parts and spares for major rebuilds” no doubt resulted from his serious dereliction of duty through his work absenteeism.  

38.	I am satisfied the plaintiff was terminated for good cause. Both stated reasons fall within the ambits of s 36 (1) of the Employment Act and Clause 4.3 of the Employment Contract. 

39.	Furthermore, Clauses 3.3 and 3.4 pertaining to the employees’ obligations under the Employment Contract requires the plaintiff to ensure punctuality and efficiency at work and ensure faithful and diligent work performance. The plaintiff also breached those obligatory provisions. 

40.	I find sufficient evidence that the plaintiff’s employment was lawfully terminated under his Employment Contract with ZPPL.

41.	On the issue of Damages, the plaintiff has no entitlement to damages. He has not established any cause of action.

Final entitlements.

42.	The plaintiff has a number of claims under this head, viz; unpaid field break pay, pay in lieu of notice and any unpaid entitlement.

1)	Unpaid field break pay

43.	The plaintiff makes this claim under 1.6 of the Employment Contract where he was required to work four weeks and take two paid weeks off. He worked 16 days before his termination. His claim is that he redeemed 8 paid days off-site.  His claim is K3,300.00.  This is sufficiently pleaded by the plaintiff. The defendants’ response is general denial. I will award the amount. 

2)	pay in lieu of notice

44.	The plaintiff claims K5,775.00 under this head. He was employed by ZPPL for some 15 months before termination. He had previously refused the offer by ZPPL to pay him in lieu of notice. He also refused the defendants’ offer to pay him two weeks advance pay. Given that the defendants had been willing to settle with him previously, I will order that the defendants pay the claim as calculated by plaintiff at K5,775.00.

3)	any unpaid entitlement

45.	The plaintiff has not established any cause of action. Hence, he is not entitled to any general damages. He has also not shown any outstanding claim against the defendants under the Employment Contract. This claim is dismissed.

46.	The defendant’s position is that the plaintiff has been paid all his entitlements and that there is no outstanding and unpaid entitlement. 

47.	In my view, the defendants should pay the field break pay and money in lieu of notice.  

Orders of the Court

48.	The plaintiff has failed to prove his case. The proceedings will be dismissed. Before I finalise the orders, I will decide the issue of costs. The rule of thumb is to order the plaintiff to pay the defendants’ costs. The award of costs is discretionary to be exercised according to the circumstances of the case and in the interests of justice. 

49.	The plaintiff is an individual citizen who has taken on a multi-national company and lost. He is intelligent and well-articulated and has raised some valid issues. I think, an orders against him to pay costs would harsh and tyrannical. In Apolonia Steven v Ram KC (2016) N6577, Cannings J suggested and I agree,  that the Court must strive to make access to justice easy and affordable 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)	The proceedings are, subject to this order, dismissed.
(2)	The defendants shall within one month after the date of this order, pay the plaintiff the final entitlements due to him upon termination of employment on 30 July 2015, in the sum of K9,075.00 for field break pay and in lieu of notice. 
(3)	The parties shall bear their own costs of the entire proceedings.
(4)	The proceedings are thereby determined, and the file is closed.

Judgment accordingly.
_____________________________________________________________
Emmanuel Lawyers: Lawyer for the Plaintiff	
Gadens: Lawyer for the Defendant