N9858

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 65 OF 2011 (CC1)

BETWEEN:
DR GAE GOWAE
- Plaintiff-

AND:
DR WARI IAMO
SECRETARY FOR DEPARTMENT OF ENVIRONMENT AND CONSERVATION
-First Defendant-

AND:
MARGARET L. ELIAS
SECRETARY FOR DEPARTMENT OF PERSONAL MANAGEMENT
-Second Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Defendant-

Waigani: Tamade AJ
2022: 22nd April, 04th August

JUDGMENTS – assessment of damages after entry of default judgment on liability – restructure based on NEC decision – plaintiff accepted restructure and applied for the position – no direct breach of employment contract.

DAMAGES – defendant consented to the award of K58 531.47 for contract gratuity and retrenchment benefits – General Order 16.10 – general damages – plaintiff not entitled to general damages. 

Counsel:	

Mr Pokup Kepiniu, for the Plaintiff
Mr Robbie Kebaya, for the Defendants

4th August 2022

1. 	TAMADE AJ: The is a decision on the assessment of damages after liability was entered by way of default judgment on 24 August 2011.

2. 	The Plaintiff claims unpaid entitlements from the Defendants pursuant to a contract of employment entered with the Defendants referred to as Employment Agreement for Senior Officers of the National Public Service for a period of three years from 3 April 2006 to 3 April 2009. The Plaintiff was therefore employed as the Deputy Secretary- Conservation with the former Department of Environment and Conservation.

3. 	The Plaintiff claims that whilst serving out his term in the Department of Environment and Conservation, there was a departmental restructure wherein the Plaintiff’s position as Deputy Secretary- Conservation was disbanded and three new positions were created being: Deputy Secretary – Policy and Evaluation, Deputy Secretary- Environmental Sustainability Wing and Deputy Secretary – Environmental Sustainability Protection.

4. 	The Plaintiff was invited to apply for these three new positions, he applied for two of the positions however he was unsuccessful as informed in a letter dated 13 January 2009. The Plaintiff then appealed this decision not to appoint him for the positions he applied for to the Public Service Commission. The Public Service Commission however determined in his appeal that the position of Deputy Secretary- Sustainable Environment Program be readvertised externally. 

5. 	The Plaintiff, therefore, states that due to the restructuring in the organization of the Department of Environment and Conservation, he was therefore unattached and was treated as such. The Plaintiff claims that his contract of employment lapsed on or about 3 April 2009 however he still received his salary as an unattached officer under the contract and General Orders pending either reappointment or retrenchment, whichever occurs first in time. The Plaintiff then resigned from the Department on 16 August 2010.

6. 	At the trial of this matter, Mr. Kebaya of the Office of the Solicitor General conceded to the Plaintiff’s claim for contract gratuity and retrenchment benefits in the total sum of K58 531.47. The award of K58 531.47 is therefore arrived at by consent of parties as an award for contract gratuity and retrenchment benefits that are due to the Plaintiff. 

7.	The Plaintiff however insists on general damages for substantial anguish and mental distress. The Defendants, however, oppose this head of the claim and say that the Plaintiff was not terminated, the Plaintiff continued to receive salary from the Department though unattached until his resignation and therefore the Court should not award the claim for general damages and for mental distress.

Is the Plaintiff entitled to a claim for general damages for mental distress and frustration?

8. 	The Plaintiff claims that because of the restructuring in the Department, this amounted to a breach of his contract of employment and therefore he should be entitled to general damages as a consequence of that.  The Plaintiff claims that the Defendants breached his employment agreement by failing to serve any notice of retrenchment on the Plaintiff as required under General Order 16.10, the Defendants failed to pay out the Plaintiff’s retrenchment benefits as he is entitled to Under General Order 16.10, and that the Defendants failed to give the Plaintiff reasons for the restructure and removal of his position and also misaddressing him as “Mr. Gowae” who should be addressed as  “Dr. Gowae.”

9. 	I find that the Plaintiff’s conduct is quite contrary to his claims. The Plaintiff by his conduct in essence accepted that there was a restructure in the Department and took steps to apply internally for two new positions which were created after his former position was abolished. His very conduct proves that he accepted the restructure and acted accordingly. His claim for unpaid retrenchment benefits cannot be said to be a breach of any sort to his contract, this follows from an exit from his employment. Having read the Affidavit of Dr. Wari Iamo as the former Secretary of the Department of Environment and Conservation, the reason for the restructure was an NEC decision reached and therefore to my mind, the restructure would affect all employees in that Department and not exclusively the Plaintiff.  The Plaintiff seems to allege that there was some ill will and intent against him for the restructure to remove him from his position.  I find nothing of that sort from reading the Affidavit of Dr. Iamo. His claims for the Defendants not properly addressing him in his title as Dr is trivial and without merit to my mind as it is open to the possibility that he could have been incorrectly addressed however again, the Plaintiff’s claim is frivolous and exaggerated. There is no rhyme or reason for a mental distress and anguish of being wrongly addressed in a letter. These are simple contingencies that happen in correspondences and therefore I refuse this argument. 

10. 	 I, therefore, find that there is no breach of the Plaintiff’s agreement. The Plaintiff conceded from his evidence that he resigned from his employment after the restructuring and after being unattached. I find that the Plaintiff continued to receive his salary as an unattached officer and therefore there is no breach of contract and no loss suffered and the claim for general damages for mental distress and anguish is therefore without merit.  

11. 	I, therefore, make the following orders:

i)	The Plaintiff is awarded K58 531.47 by consent of parties as payment for contract gratuity and retrenchment benefits.
ii)	Interest at 2 percent shall be granted on the judgment sum from the date of the Writ of Summons to the date of the default judgment.
iii)	As costs is a discretionary matter, each party shall bear their own costs of the proceedings as the Plaintiff has taken almost ten years since the date of entry of default judgment to pursue assessment of damages. 

Orders accordingly.
_____________________________________________________________	
Posman Kua Aisi Lawyers:	 Lawyers for the Plaintiff
Office of the Solicitor General:	Lawyers for the Defendants