N10119

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  887 OF 2013

BETWEEN:
NARAYAN GEHLOT
- Plaintiff-

AND
VERONICA THOMAS as Acting REGISTRAR
-First Defendant-

AND
JOHN PUMWA as ACTING VICE CHANCELLOR
-Second Defendant-

AND:
PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
-Third Defendant-

Lae: Dowa J
2021:  12th October
2023:   14th February
EMPLOYMENT LAW - breach of employment contract of non-citizen under written terms and conditions -minimum terms and conditions governed by Employment Act- principles applicable in termination of written contract of employment-Where the contract of employment is terminated based on a set disciplinary procedure, the employer is obliged to follow that procedure.
MEDIATION - where parties reach agreement in Court annexed mediation, parties are bound by the terms of agreement reached. 
DAMAGES – subject to the agreement reached, damages limited to reasonable period for carrying out the disciplinary process and for outstanding entitlements -judgment for plaintiff. 

Cases Cited:
Porgera Joint Venture -v- Robin Kami (2010) SC1060
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
 Samot v Yame (2020) N8266
Ruhuwamo v PNG Ports Corporation (2019) N8021
 John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092

Counsel:
K. Keindip, for the Plaintiff
S. Kesno, for the Defendants 

JUDGEMENT
14th February 2023

1.	DOWA J:	The Plaintiff seeks damages against the Defendants for the unlawful termination of employment contract. The issue of liability was resolved through mediation and the matter proceeded to trial on the assessment of damages.

BACKGROUND FACTS

2.	The Plaintiff is an expatriate, a USA citizen. At all material times he was employed by the PNG University of Technology (Unitech) as a Professor and Head of Department of Electrical and Communication Engineering. He was terminated on 10th December 2012. The Plaintiff alleges the termination was unlawful and in breach of the Contract of Employment he signed with the University. The Plaintiff therefore seeks damages for loss of salary and other entitlements and consequential orders.

HISTORY OF THE PROCEEDINGS

3.	The Plaintiff filed the proceedings on 16th August 2013. The Defendants filed their Defence on 9th September 2013. The matter was referred for mediation on 16th November 2018. The issue of liability was resolved through mediation as per Certificate of Mediation dated 21st November 2018 certified by Mediator, Nigel Merrick. On 18th August 2020 the Court in endorsing the terms of the mediation directed the parties to agree on the outstanding issues, especially the amount of damages to be settled. Failing settlement, the Court has on 20th August 2020 directed the matter to be resolved by trial for the assessment of damages. The trial was concluded on 2nd September 2021 and decision was reserved, which I now deliver.

ISSUES

4.	The issues for consideration are:

a.	Has the Plaintiff proved his loss on the required standard of proof.
b.	How much is the Plaintiff entitled to in terms of damages. 

TRIAL 

5.	The parties agreed to conduct the trial on assessment of damages by tendering their respective affidavit evidence without cross-examination. The Plaintiff relies on the following affidavits:

a.	Affidavit of Narayan Gehlot sworn 30th October and filed 6th November 2020 – Exhibit P1.

b.	Affidavit of Narayan Gehlot sworn 10th and filed 29th June 2021 – Exhibit P2

6.	The Defendants rely on the Affidavit of Veronica Thomas sworn 27th April and filed 12th May 2021 – Exhibit D1

LIABILITY

7.	 The parties agree that liability is no longer in issue. The trial is for assessment of damages. I will say more on it later in my judgment.

ASSESSMENT OF DAMAGES

8.	Whilst the issue of liability is settled, the Plaintiff is still required to prove his damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

9.	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

10. 	I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff.

EVIDENCE

11.	The summary of the Plaintiffs evidence is this. He commenced employment with the Third Defendant as Associate Professor in the Electrical and Communication Department at Unitech.  In December 2011 he was appointed by the University Council as Full Professor and Head of Department.  He signed a Contract of Employment as governed by the Standard Terms and Conditions for Contract Employment of Non-Citizen staff at Unitech.  On 10th December 2012, he was terminated from employment for unauthorized leave of absence from the University. On 16th February 2013, he was arrested and charged on allegations of fraud and conspiracy to defraud the University. On 5th July 2013, the District Court dismissed the committal proceedings for lack of evidence.

12.	The Plaintiff says during this period of time, he was not allowed to enter Unitech and retrieve his personal property. As a result, he had to stay at a hotel for 61 days at his own expense at the daily rate of K1,019.00.  He also spent money on private hire of motor vehicle.

13. 	As a result of the termination, the Plaintiff claims he is entitled to claim from Unitech certain losses under the Contract of Employment and other approved reimbursements and allowances in the following:

a)	Damages for loss of reputation 		–	to be assessed
b)	Damages for hotel expenses 		-	K      62,159.00
c)	Loss of personal property at Unitech 	-	K      32,950.00
d)	Reimbursements from Unitech	 	-	K    207,252.00
e)	Accrued leave entitlements			-	K     76,211.00	
f)	Phone allowances 				-	K       1,000.00
g)	Salaries for balance of Contract period 	-	K1,180,669.00
h)	Motor vehicle hire				-	K     18,300.00

DEFENDANTS EVIDENCE

14.	The First Defendant, Veronica Thomas, gave evidence for the Defendants. She is the Registrar of the University.  On instructions from the Second and Third Defendants she terminated the Plaintiff for breach of the terms of his employment contract, that is for being absent from duty and for misappropriating of the University funds totaling K675,600.00. She laid a complaint with the Police and the Plaintiff was charged with the said criminal offences. On 5th July 2013, the Plaintiff was discharged by the Committal Court due to insufficiency of evidence.

15.	In respect of the current proceedings, Ms. Thomas says, the Plaintiff was terminated for cause and is not entitled to any damages except for the concession given in the Court annexed mediation. During the mediation conducted on 21st November 2018, the University admitted liability on the basis that it did not comply with the disciplinary procedures relating to termination but not on the merits of allegations. The parties could not reach agreement on the amounts resulting in the trial.

16.	On quantum, Ms Thomas deposes, that as per the Mediation Agreement, that Plaintiff is only entitled to 3 months notice pay. As for the other heads of damages, claimed by the Plaintiff, Ms Thomas denies that the Plaintiff is entitled to any of them.

THE ADR PROCEEDINGS

17.	In my view, it is necessary to refer to the mediation agreement as a reference point for the purposes of assessing the Plaintiffs claim. The Plaintiff pleaded in the statement of claim that he was unlawfully terminated and claims more than K1.4 million in loss of salaries and wages and other allowances. The Defendants in their Amended Defence pleaded that the Defendants were entitled to terminate the Plaintiff’s employment contract for good reasons and are not liable.

18.	On 6th November 2018 by a consent order, the Court referred the matter for mediation. On 21st November 2018, a mediation was conducted, and an agreement was reached. The terms of the agreement are:

“1.	PNG University of Technology representing the Defendants conceded liability for unlawful termination of the Plaintiff in November 2012 subject to his Contract of Employment in so far as the disciplinary process was not followed but not on the merits of the allegations.

2.	Without admission of the level of damages/entitlements and expenses due to the Plaintiff, the Defendants are prepared to pay 3 months equivalent of salary plus accrued entitlements to the Plaintiff.

3.	There is no other agreement on level of damages or expenses claim.

4.	The reminder of the claim by the Plaintiff is referred to the trial judge.”
 
19.	Between November 2018 and August 2020, the parties were negotiating settlement on quantum. On 18th August 2020, Kandakasi J (as he then was) in endorsing the mediation agreement, gave directions for parties to settle. The directional orders are reprinted below.

“COURT ORDERS

The Court orders that:

“1.	This is a simple and straight forward matter in which the Plaintiff is now only claiming payment in lieu of a contractual three months notice.

2.	In view of term 1 of these orders, the Defendants are required to settle this claim with the Plaintiff by reference to the relevant and applicable law and return to Court with draft consent orders finalizing the proceeding for the Court’s consideration and endorsement.

3.	Failing settlement in accordance with term 2 of these orders, the parties shall come ready with submissions with case law directly on point, following which, the Court will consider the parties’ submissions and make a binding determination.

4.	The matter shall next return to the Court on Thursday 20th August 2020 at 9:30 am or soon thereafter.

5.	The time of the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.”

20.	The matter was not resolved as directed, and on 21st August 2020 Kandakasi J (as he then was) gave further directions for trial on assessment of damages in the following terms.

“Order

The court orders that:

“1.	This matter shall be resolved by trial for which purpose, it is fixed for trial before His Honour Justice Numapo on 4th September 2020 at 9:30am or soon thereafter.

2.	The trial shall beon the assessments of damages only given that liability has been resolved by agreement of the parties through mediation.

3.	The trial shall proceed provided the Plaintiff pays the Defendants costs of the various adjournments to date fixed at K500.00.

4.	Parties to file and serve affidavits and unless the parties otherwise agree as to the use of the affidavits, witnesses shall be called in the usual manner.

5.	If the Plaintiff fails to comply with any of the forgoing orders or otherwise is not ready to proceed with the trial, there shall be no further adjournment and proceeding shall stand dismissed.

6.	The time of the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.”

21.	It is clear from the mediation agreement and subsequent endorsement by the Court that liability is resolved on terms that the Defendants are to pay the Plaintiff three months’ salary in lieu of notice period.

	DAMAGES:	HOW MUCH IS THE PLAINTIFF ENTITLED

22.	The Plaintiff claims damages under the following heads of damages.

a)	Salary and wages
b)	Reimbursements
c)	Hotel expenses
d)	Loss of personal property
e)	Damages for unlawful termination
f)	General Damages for pain and suffering
g)	Interest at 8%
h)	Cost

SALARIES AND WAGES

23.	Mr Keindip, counsel for the Plaintiff, submits that the Plaintiffs employment contract was unlawfully terminated. The Plaintiff is entitled to damages for the loss of salary and wages under the contract for the remaining 25 months. According to the Plaintiffs calculations, the claim for wages and salary is K976,983.10.

24.	Mr Kesno, counsel for the Defendants, submits that the termination was for cause and the Plaintiff is not entitled to damages for loss of salary and wages for the remainder of the term. However, the Court considers otherwise, the Plaintiff is only entitled to three (3) months pay in lieu of notice, and that shall be in the sum of K 47,781.71.
       
        Consideration

25.	The submissions by the counsel for the Plaintiff is misconceived. The parties have resolved the issue of liability on terms during the mediation on 21 November 2018 which was endorsed by the National Court in the orders of 18th and 21st August 2020. There is no ambiguity on the terms agreed which are:

a)	Liability is conceded for failure to follow disciplinary process but not on the merits of the allegations.

b)	Defendants were prepared to pay 3 months equivalent of salary plus accrued entitlements.

26.	The settlement agreement reached is consistent with the employment law in this jurisdiction as expounded in the following cases.

27. 	In Porgera Joint Venture -v- Robin Kami (supra) Injia CJ, (as he then was) said this at paragraphs 25- 26 of the judgment:

“25. I consider that in a private employment situation where an employee is employed under a written contract of employment for a fixed term and which contains a termination clause for termination with or without notice by either party, with or without reason, the measure of damages which the employee is entitled to receive is based on the salary and other entitlements that the employee would have received if the contract had been lawfully terminated. In a case where it is an express or implied term of the contract that termination of the employment contract for cause would be effected upon compliance with disciplinary procedures, the measure of damages is assessed on a reasonable period within which the disciplinary proceedings would be commenced and concluded. The likely outcome of the disciplinary proceeding is immaterial or is an irrelevant consideration” (underlining mine)

26…. But damages will not be for the balance of the contract unless the parties agree to such a term under the contract. Instead, damages is for the reasonable period during which proper disciplinary process would have been initiated and concluded in accordance with any time lines prescribed for various steps in the disciplinary procedure to be concluded. For a start, it would very much depend on the steps in the procedures set out in the disciplinary process and the time limit, if any, prescribed for various procedural steps where they are no time limits prescribed, it would come down to assessing what would be as reasonable time frame to cover the main steps in the process – formulating and presenting complaint, opportunity to reply and a decision made and communicated to the employee and any provisions for appeal or review from that decision by a higher management body or person. It is not a matter for the Court to analyze and speculate on the employee’s chances of success if the process was completed.

28. 	In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J said this at paragraph 17-19 of her Judgement:

“17.	 It is well settled by a long line of case authorities in PNG, that an employer has 	the right to hire and fire his employees and does not have to give reasons for his decision. If this is done in breach of the terms of a contract, the measure of 	damages is what the employee would have received for his salary and other entitlements if the contract had been lawfully terminated. (See Jimmy Malai v PNG Teachers Association (1992) PNG LR 568, Paddy Fagon v Negiso Distributors Pty Ltd (1999) N 1900, New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC 946, and Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) PGSC 11).
18. 	This is consistent with the provisions of the Employment Act. Under S 34, a contract of employment may be terminated at any time, with the length of notice being either as specified in the contract, or dependent on the length of the employment. If an employee has been employed for over five years, the length of notice shall be not less than four weeks. Under S 35, the termination may be by notice, or by payment in lieu of notice.
19. 	Under S 36, the employer may terminate without notice or payment in lieu, if the employee, inter alia, wilfully disobeys a lawful and reasonable order or misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties.”
29. 	In John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092   Cannings J, stated that: “There is no binding principle of law that in assessing damages, the National Court is obliged to award nothing more than the amount of salary that would have been paid to the employee during the notice period.” His Honour proceeded to award general damages assessed at a week’s salary in that case.

30.	In Tand v Newcrest Mine Ltd (2020) N8616, His Honor Makail J set out certain principles should apply when assessing damages for breach of employment.  These principles appear in the head note of the judgment which read:
“ There are at least four different situations where damages may be awarded in a case where a contract of employment is terminated. These are:
(a)	Where there is no provision in the contract for parties to terminate the contract before the expiry of the contract, damages will be awarded for the full balance of the contract: Rooney v. National Forest Authority [1990] PNGLR 914.
(b)	 Where it is an expressed term of the contract that the employee is entitled to be paid out the balance of the contract in the event of early termination for specified cause, damages for the full balance of the contract will be awarded: Bromley Pacific Finance Limited [2001] N2097.

(c) 	Where the contract provides for notice to be given and where no notice and reasons are given, damages will be awarded for the balance of the contract: Peter Aigilo v. Sir Mekere Morauta & Ors (No 2) [2001] N 2103.

(c)	Where the contract provides for notice to be given and the employee is terminated for cause, the employee is entitled to payment in lieu of notice for the period of notice: Michael Kandiu v. ANZ Bank [2002] N 2226; Paul Pora v. Poliamba Limited [2008] N 3582 and Robert Kapo v. Ayleen Bure & Ors [2010] SC 1162.”

31.	In the present case, I find that the Plaintiff is entitled to three months pay in lieu of notice and no more. First, the parties have agreed during mediation that the Plaintiff would be entitled to only three months’ salary and wages and unpaid entitlements.

32.	The second reason is that under the terms of the employment contract, the Plaintiff is entitled to three months pay in lieu of notice. I note the Plaintiff’s argument that there is no evidence of a term or provision in Plaintiff’s contract making provision for 3 months’ notice.  The Plaintiff’s submission is not supported by any evidence.  On the contrary, the evidence shows otherwise.

33.	Paragraph 1 of the Employment Contract signed by the Plaintiff on 9th December 2011 clearly states that:

“This contract shall comprise the agreement and the Terms and Conditions of Employments attached hereto, and this Agreement and Terms and Conditions shall be read and interpreted together as one document.”

34.	Under Clause 6 and 7 of the Standard Terms and Conditions for Contract Employment of Non-Citizen Staff provide that if the contract is terminated without cause he would be entitled to three (3) months’ notice or payment in lieu of notice and if the contract is terminated with cause, there would be no requirement for notice.

35.	Ms Thomas deposed at paragraph 18 of her affidavit that: 

“Under the contract of employment if the Plaintiff is terminated without cause he would be entitled to three months notice or three months pay in lieu of notice. The Plaintiff was terminated for cause so he is not entitled to three months, however since the University has admitted liability for unlawful termination, the three months notice period for termination would apply.”

36.	I find that the Plaintiff is only entitled to three months’ salary and unpaid entitlements. What is the amount for the three (3) months salary. The Plaintiff claims in 25 months is K976,983.00. For the three (3) months based on his calculations would be K117,237.96. This figure is without deduction for tax. According to the calculations presented by Ms Thomas, the gross pay for three months with entitlements is K61,093.44. This figure is contained in and derived from the salary calculation sheet on termination of service effective 10th December 2012. A copy of the calculation sheet is annexed to the Affidavit of Veronica Thomas (Annexure “9”). The summary on the calculation sheet is set out below.

Outstanding Entitlements

1.	Payment of ordinary pay from 15.11.2012 to 10/12/2012 = 17 days = K  18,678.69
2.	Payment of 70 days rec. leave balance:				    = K  71,275.68
3.	Payment of 3 months salary in lieu of notice:			    = K  61,093.44
Total 									       K151,047.81

Less Deduction:

Tax						K55,002.85
Medical Levy					K       25.50
TV Rental					K       37.40
Rental High Cost				K       68.00
Staff Departure (Bond Fee)			K  2,000.00
Cheque Payment				K46,125.35

Total Deductions				K103,260.10

Total Salary:					K151,047.81
Less
Total Deductions:				K103,260.10
BALANCE OUTSTANDING:		K 47, 787.71 

37.	One notable figure from the deduction is for a cheque payment made for the sum of K46,125.35 to the Plaintiff.

38.	I accept these calculations as accurate as they have been properly calculated. I will therefore accept the figure of K47,781.71 as the final and outstanding amount owed to the Plaintiff and I award same.

	LOSS OF PERSONAL PROPERTY. K30,000

39.	The Plaintiff claims the sum of K32,950 for the loss of his personal property ranging from dog food to formal dress suits to TV set. The Plaintiff alleges that he was out of the Unitech Campus when he was terminated and arrested and charged. He was not allowed to return to Unitech to pick up his personal property. At paragraph 21 of his affidavit (P1), he lists 21 items, to the value of K33,950.00. The Plaintiff has not produced any receipts. He explains that the receipts were also lost or disposed. There is no explanation from the Plaintiff what arrangements he made for the retrieval of his personal property and items. The evidence shows, at the material time, the Plaintiff was still in Lae, attending to his court case and it is improbable that he could not retrieve his personal property from Unitech. I am not satisfied on the balance of probabilities that he is entitled to claim the loss and will reject same. 

HOTEL EXPENSES – K62,159.00

40.	The Plaintiff claims K62,159.00 for hotel and meals during the time when he was refused entry into Unitech. The Plaintiff has not produced any receipts. He has not given any details of the hotel accommodation. He did not provide the name of the Hotel. He did not give the dates or period he stayed in the hotel, except to say that he stayed at the hotel during the time he defended the disciplinary and criminal proceedings.

41.	The Plaintiff was terminated on 10th December 2012. On termination, the University was not responsible for the Plaintiff’s accommodation. The Plaintiff was a non-citizen contract officer and is expected to leave the shores. However, the University has admitted liability that they have not followed the disciplinary process. That process if followed would have taken about 2 months. In my view, the claim by the Plaintiff is not unreasonable except that he can not give the details and receipts in his evidence. In my view, the Plaintiff should be allowed a reasonable sum for alternative accommodation. I am prepared to allow K300.00 per day for 61 days totaling K18,300.00.

       MOTOR VEHICLE EXPENSES- K 18,300.00 

42.  The Plaintiff claims K 18,300.00 for motor vehicle hire for the 61 days he was deprived of the use of the University vehicle. On termination the Plaintiff was fighting his termination and the criminal charges brought against him. The Plaintiff has not provided any details or receipts establishing his claim.  Although no receipts are produced I will allow for a reasonable sum for the two months period it would have taken to go through the disciplinary process. In the absence of evidence from the Plaintiff I will allow K 100.00 per day totaling K 6,100.00 and award same. 

REIMBURSEMENTS – K207,252.00

43.	The Plaintiff claims K207,252.00 for approved reimbursements by the University in respect of the following:

1.	K40,000.00	School fees for daughter (2012)
2.	K36,900.00	Reimbursement of IRC fees
3.	K105,000.00	For extra 121 days extra teaching time
4.	K25,352.00	Reimbursement of educational travel subsidy

44.	Ms Veronica Thomas, the current Registrar refutes the claims saying, the claims have not been verified and approved by the University. No documents were presented to confirm that they have been approved by the Senior Management of the University and as a result the claims have been rejected.

45.	Is the Plaintiff entitled to seek reimbursement of the monies allegedly owed to him by the University. The Plaintiff has the burden to prove these claims. The Plaintiff relies on a Memorandum sent by the former Registrar of the University, Allan Sako, dated 20th March 2012. In that memo, Mr Sako, is said to have approved the reimbursement for the payments to IRC (K36,900) and the school fees (K40,000).

46.	Apart from Mr. Sako’s memo, the Plaintiff has not provided any explanation or support documents verifying the claim. The Plaintiff has not provided an explanation why his claims were not settled immediately after approval was given in March 2012.

47.	I accept the explanation given by Ms Thomas that the claims were not approved and were rejected. There are other reasons why I have doubts in respect of this claim. For example, at paragraph 7 of his affidavit (Exhibit P1) the Plaintiff says he was entitled to K23,000 educational subsidy under the employment contract. If that is the contractual limit, why seeking reimbursement of K40,000.00, about K17,000.00 more than entitled. In respect of the IRC payments, the Plaintiff has not explained the circumstances or reasons for these payments he made. There are no documents like invoices and receipts from IRC verifying those payments.

48.	For the foregoing reasons, I am not satisfied that the Plaintiff has proven the claims for reimbursement and is therefore rejected.

SCHOOL FEE SUBSIDIARY – K23,000.00

49.	The Plaintiff claims K23,000.00 school fee subsidiary for his daughter for the 2012. The Plaintiff alleges it was not paid by the University and remains outstanding.

50.	The University has denied the claim. The Plaintiff has not pleaded or particularized this claim in the statement of claim. The Plaintiff’s employment contract does not specifically provide for educational subsidy. However, Clause 8 of the contract provides that the Plaintiff is entitled to receive benefits for dependents. The only evidence for the subsidiary is a letter from the Acting Registrar Lawrence Yaum dated 12th July 2012 which is annexed to the Plaintiff’s affidavit as Annexure ‘C’. Mr. Yaum confirms that the Plaintiff is entitled to educational subsidy of K23,000.00.

51.	There is no other evidence from both parties to the proceedings whether this subsidy was claimed and settled. The Defendants are making a general denial. The Plaintiff has claimed that he paid the fees and sought reimbursements which I rejected in paragraphs 43-48 of the judgment. Although I rejected the claim for K40,000.00 I am inclined to allow the lesser sum of K23,000.00 for the education subsidy especially where the defendants have not specifically denied the claim.

ACCRUED LEAVE ENTITLEMENTS - 
		
52.	The Plaintiff claims K76,211.00 for accrued leave entitlements of 97.25 days. The Plaintiff relies on a printout as evidence of this claim. I note the Plaintiff did not specifically plead this claim in the statement of Claim. On termination, the Plaintiff’s entitlement was calculated which included pro-rata leave entitlements, which is contained in Annexure ‘G’ of Veronica Thomas’ Affidavit (D1). The calculations show Plaintiff was paid for 70 days leave credits in the sum of K71,275.68. Clearly the claims for outstanding leave entitlements were included in the calculations done and part payment being made. Therefore, I am not satisfied that he would have leave credits apart from the ones shown on the calculation sheet. For these reasons I reject this claim.

	OTHER BENEFITS AS HEAD OF DEPARTMENT

53.	The Plaintiff claims K87,350.00 being allowances for Head of Department, telephone allowance, motor vehicle, housing benefit, registration benefits.

I reject this claim. The specific claims were not pleaded in the statement of claim. Secondly, the Plaintiff is only entitled to the benefits while performing his duties. As he has been terminated, he is not entitled to these allowances.

REIMBURSEMENT OF GENERAL EXPENSES

54.	The Plaintiff makes an unspecified claim for reimbursement of General Expenses. In paragraph 27-28 of his affidavit, he claims he made payments for general expenses on behalf of the University to which he is entitled to reimbursement. However, this claim is not specifically pleaded in the statement of claim. There is no evidence of approval being given by the University for such expenses. I reject this claim.

        REPATRIATION EXPENSES

55.   The Plaintiff claims he is entitled to repatriation expenses for K 30,000.00.     I note this amount is for return airfares from Lae, PNG to Palin, USA and return. For a one-way travel will be K 15,000.00. I note the Defendants have not taken issue with this claim. I will allow this claim and award K 15,000.00.

GENERAL DAMAGES

56.	The Plaintiff claims K50,000.00 for general damages for wrongful dismissal. Counsel for the defendants submit that a global sum of K 8,000.00 is sufficient compensation. General damages are for pain, suffering, humiliation, distress, and inconvenience. The Plaintiff testified of the pain, suffering and frustration caused to him. He suffered humiliation and financial inconvenience. General damages are not readily awarded in unlawful termination of employment contracts. The case authorities relied on by counsel for the Plaintiff are not applicable.

57.	However, the decisions in Porgera Joint Venture v Kami and Murua v Ramu Nico, provide useful guide on this issue, especially in PJV v Kami, the Court expressed that a reasonable sum of damages can be awarded for the time (period) it would have taken to complete the disciplinary process. I am of the same view that reasonable damages be paid for the period it would take to complete the prevailing disciplinary process. In this case, if Unitech followed due process according to the disciplinary procedure set in place it would have commenced and completed in four weeks. I am therefore inclined to make an award for damages which will be equivalent or close to two fortnights salary. Based on the calculation sheet provided by the Defendants, two fortnights net salary would be around K20,300.00.

58.	In the present case, I note the Plaintiff’s employment contract was dismissed for cause. Irrespective of what would have been the outcome of the disciplinary process, the Plaintiff is entitled to a reasonable sum for general damages. In my view, K20,000.00 is appropriate under this head of damages and I award same.
	
SUMMARY

59.	In summary, I have assessed and allow the Plaintiff’s claim as follows:

i)	O/S Salaries and entitlements	K 47,757.71
ii)	Hotel expenses				K 18,300.00
iii)	Motor vehicle expenses                  K 6,100.00
iv)	Education subsidiary			K 23,000.00
v)	Repatriation Expenses                    K 15,000.00
vi)	General Damages			K 20,000.00
Total					K130,157.71

INTEREST

60.	The Plaintiff claims interest at 8%. The Court has a discretion to award interest on the rate claimed or lesser sum. The proceedings commenced in August 2013. The Plaintiff did not diligently prosecute the matter until 2018. In November 2018, parties reached agreement through mediation. The file records show the Plaintiff, and his lawyers were not proactive and failed to comply with certain directions with a view to resolving the matter sooner. At one stage, the matter was even listed for summary determination. For these reasons I will award interest at a lower rate of 6% per annum. Interest at 6% on K130,157.71 from date of filing of writ (16/8/2013) to date of judgment (14/02/2023) for 3,468 days is K 74, 215.20. Interest is calculated as follows:

•	130, 157.71 x 6% =                  K 7,809.46 per annum
•	K 7,809.46 ÷ 365 days 	= 	K 21.40 per day
•	K 21.40   x 3,468 days	=	K 74,215.20

60. 	The total judgment shall be K 204,372.91

COST

61.	Counsel for the Plaintiff submitted that costs be awarded to the Plaintiff on solicitor -client basis. He proposed a figure of K 100,000.00. He submits that the defendants did not have a good defence and the defence raised was hopeless and vexatious. The Plaintiff relies on the decisions in Don Polyo v Papaki (2000) PNGLR 166, Gulf Provincial Government v Baimuru (1988) PNGLR 311 and Benny Balepa v Police Commissioner (1999) N1371 in support of his submissions.

62.  In my view the case on point is Opi vs Telikom (PNG) Ltd (2020) N8290.  In the Opi vs Telikom, his Honour, Shepherd J extensively reviewed decided cases to distinguish cost on party/party basis to that of cost on solicitor/client basis. His Honour summarized the principles that can be applied when considering the issue at paragraph 235 of his judgement which reads:
“235. The salient principles which I consider can be distilled from these Australian cases and the cases in our jurisdiction which I have referred to are these:
(1) 	The purpose of a costs award on an indemnity basis, although compensatory is primarily punitive. As was stated by the Supreme Court in the Rex Paki case, an award of costs on an indemnity basis can be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that punishment is warranted.

(2) 	An award of costs on a solicitor/client basis is made to compensate the receiving party for the fees and disbursements that the lawyer charges the client, to the extent that those fees and disbursements, if taxed, were “reasonably” incurred. They do not include unreasonable or unusual fees and disbursements.

(3) 	Because a costs award on an indemnity basis is more generous than a costs award on a solicitor/client basis, its scope extends beyond that to which a receiving party is entitled had a solicitor/client costs been ordered. It is intended as a full indemnity for all costs and expenses incurred preparatory to and during the proceedings, not just the legal fees and associated disbursements charged by that party’s lawyer(s). So for example a receiving party, if an individual, is entitled to claim for loss of income or the value of time wasted when attending to matters relating to the proceedings. Similarly, a corporation or business can claim for the value of time spent by its officers and employees when attending to the proceedings.

4) 	An award of costs on a solicitor/client basis is intended to compensate the receiving party for legal fees and disbursements charged by that party’s lawyer in having to unnecessarily defend proceedings which were an abuse of process, where there was no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without the need for court action or delay, where there has been defiance by the other party in complying with court orders and or where the receiving party has generally had to incur unnecessary expense through unmeritorious litigation.

(5) 	Forewarning in writing or by electronic means should always be given that costs will be sought on a solicitor/client basis if proceedings are wrongly instituted and then dismissed as being without merit, or if the circumstances are sufficiently egregious to warrant not just the disapproval by the Court but also punishment, that costs will be sought on a full indemnity basis.“

63.   In my view the defendants raised a valid defence on the merits of the case. The defence raised is substantial and meritorious. It is not hopeless and vexatious as submitted by counsel. I will allow cost in favour of the Plaintiff on party/party basis to be taxed, if not agreed.

ORDERS

64.     The final orders of the Court are:

 1) 	Judgment be entered for the Plaintiff in the sum of K 204,372.91         inclusive of interest. 
2) 	The Defendants shall pay the Plaintiff’s costs to be taxed, if not agreed.
            
3) 	Time be abridged.

_______________________________________________________________________
Gamoga & Co. Lawyers:	Lawyers for the Plaintiff
Kesno Lawyers:	Lawyers for the Defendants