N11032	

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 484 OF 	2023

BETWEEN:
NELLIE IGARANG
Plaintiff

AND:
GRAHAM BROWN
First Defendant

AND:
PNG READY MIXED CONRTETE LIMITED
Second Defendant

Lae: Dowa J
2024: 12th September 3rd & 10th October

WILLS, PROBATE ADMINISTRATION ACT-application of section 44 of the Wills Probate & Administration Act-whether plaintiff has standing to institute proceedings on behalf of deceased estate without being granted letters of administration- Consent of the Public Trustee is not sufficient -only National Court power to grant administration and to commence an action on behalf of the estate-proceedings dismissed for lack of standing

EMPLOYMENT LAW -simple employment contract governed by Employment Act- principles applicable in termination of simple contract of employment-Where the contract of employment is terminated for cause that is the end of that contractual relationship-Plaintiff failed to prove allegations of unlawful termination-Plaintiffs proceedings dismissed.

Cases Cited:

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
Mark Porawi v Agarwal and others (2023) N10118

Counsel

N Igarang, Plaintiff in Person  
S Kesno with K Borifa, for the Defendants

DECISION

10th October 2024 			 

1.	DOWA J:	This is a decision on both issues of liability and damages.

2. 	The Plaintiff, Nellie Igarang, is the daughter of the late Vagi Igarang, deceased, suing in her capacity as representative of her father’s estate.  Her late father was an employee of the Second Defendant (hereafter “PNG Ready-Mix”).  She is suing the Defendants for unlawful termination and unpaid entitlements of her late father whilst employed with the company in Lae, Morobe Province, and for breach of Constitutional rights.

Facts

3. 	The Plaintiff’s late father was employed by the second Defendant from July 1980 until November 2022. His leave entitlements for the period 1980 to 1995 was paid on 31st August 1995. He was terminated from employment on 29th November 2022. He was paid K2,794.06 for his final entitlements on 15th March 2023.

4. 	The Plaintiff alleges that the termination was unlawful and further the entitlements were paid for only three years of service and not the entire 26 years of service. The Plaintiff alleges that the estate is owed more than K 45,000.00 in outstanding wages and final entitlements. The Plaintiff is also claiming damages for breach of Constitutional rights. The Plaintiff alleges she is instituting the current proceedings for herself and on behalf of the widow and other dependents of the deceased.

Defence

5.	The Defendants filed a Defence denying liability. In the Defence, the Defendant pleads that:

a.  the Plaintiff failed to provide the name and particulars of the unnamed deceased she is representing.
b. the Plaintiff lacks capacity to bring the proceedings on behalf of an unnamed deceased estate.

Trial

6.	The trial was conducted on 12th September 2024. Both parties agreed to rely on their affidavits except for the following:

a. Objections were taken on all the affidavits of the Plaintiff because of hearsay and failure to provide translation clause. The Affidavits were allowed subject to weight and submissions on the objections.
b. The Defendant’s Witness, Vaylene Powaseo, gave additional oral evidence to correct a mistake in her affidavit filed 9th July 2024.

Evidence
7.	The Plaintiff relies on the following Affidavits:

a.	Affidavit of Nellie Igarang filed on 20/3/2024 (doc no 39) P1
b.	Supplementary affidavit of Nellie Igarang filed 20/3/2024 (doc no 15) P2
c.	Affidavit of Nellie Igarang filed on 19/4/2024 (doc no 21) P3
d.	Affidavit of Charles Moreva filed on 22/5/2024 (doc no 29) P4
e.	Affidavit of Nellie Igarang filed on 22/5/2024 (doc no 30) P5
f.	Affidavit of Charles Moreva filed on 29/7/2024 (doc no 41) P6
g.	Affidavit of Nellie Igarang filed on 29/7/2024 (doc no 42) P7

8. 	This is the summary of the Plaintiff’s evidence. The Plaintiff is the daughter of late Vagi Igarang, deceased. The Deceased was a former employee of the second Defendant. He worked for the Defendant company for more than 26 years until he met his death in April 2023.The Plaintiff says, as daughter, she acts for herself and as next friend for the mother and other dependents and beneficiaries of the deceased. She deposes that the deceased was unlawfully terminated by the defendants while undergoing medical treatment. After being unlawfully terminated, the Defendants failed to pay all his entitlements. The Plaintiff deposes that the deceased was treated inhumanly by the Defendants. The Defendants paid K 2,794.06 being entitlements for only three years. According to the Plaintiff’s calculations, the deceased was entitled to more than K 45,000.00. The Plaintiff deposes the figures were arrived at with the assistance of the Provincial Labour Officer, Department of Labour and Industrial Relations. The Plaintiff is claiming this sum as well as damages for breach of Constitutional rights. The Plaintiff deposes that she has standing to institute the proceedings as she has received consent from the Public Trustee of Papua New Guinea to institute these proceedings as allowed by law under the Wills Probate & Administration Act.

The Defendant’s Evidence
9. 	The Defendant evidence was from three affidavits and oral testimony.

a)	The affidavit of Graham C Brown filed on 6/6/ 2024 (Doc No 32) D1
b)	Affidavit of Vaylene Powasue filed on 9/7/2024 (Doc No 34) D2
c)	The affidavit of Graham C Brown filed on 18/7/2024 (Doc No 36) D3
d)	Dr Kenneth Sodeng’s Medical Report dated 11th June 2024 Exhibit D4
10.	This is the summary of the Defendants’ evidence. The Defendants    confirm the deceased worked for the second Defendant for a long period of time. He was requested by the management to resign on medical grounds as his health was deteriorating towards the end of 2022. He ceased to be an employee as of 25th November 2022. The deceased was not entitled to extended sick leave. The deceased could not continue due to his worsening ill-health. His final entitlements were paid on 15th March 2023, a month before his passing. The final entitlement of K 2,794.06 accounts for the three years of service from 1st January 2020 to 31st December 2022. As for the previous years, the Deceased has been paid his entitlements on three occasions between 31stDecember 2008 and 31st December 2019, and nothing is outstanding. The Defendants deny that the deceased was treated inhumanly. The Defendants have treated the deceased and his family well over the years. At the time of the deceased’s passing, the defendants provided transport, purchased the coffin and provided cash for the funeral expenses.

Submissions
11.	The Plaintiff submits that:

a. The Defendants unlawfully terminated the deceased without notice.
b. The deceased was terminated while he was on sick leave.
c. The Defendants breached the deceased’s Constitutional rights under Sections 34 to 37 and 61 to 63.
d. The Defendants failed to pay the full entitlements for the 26 years of service.
e. The Plaintiff is therefore entitled to judgment in damages for unlawful termination, damages for breach of Constitutional rights, and for outstanding entitlements.
f. That the Plaintiff has standing to institute the current proceedings for herself and on behalf of other beneficiaries of the estate of the deceased as she has obtained the consent of the Public Trustee of Papua New Guinea to bring the proceedings.
12. 	The Defendants submit that the proceedings be dismissed for the following reasons:

a. 	The Plaintiff does not have standing to represent the deceased estate of late Vagi Igarang and thus the proceeding is incompetent.
b.	The deceased was terminated for inability to work due to serious illness and after he failed to voluntarily resign when asked	.
c. 	All long service and annual entitlements were all paid and nothing outstanding.
d.	The claim for breach of Constitutional rights lacks proper pleadings and evidence and is misconceived.
e.	The Plaintiff’s affidavits are inadmissible as the deponent is illiterate and there is no translation certificate as required under Order 11 Rule 22 of the National Court Rules

Issues

13. 	The issues for consideration are:

a.	Whether the Plaintiff has standing to institute the proceedings on behalf of the deceased estate. 
b.	Whether the deceased was unlawfully terminated.
c.	Whether the deceased estate is entitled to any damages for outstanding entitlements and for breach of Constitutional rights. 
Consideration of the issues
a.	Whether the Plaintiff has standing to institute the proceedings on behalf of the deceased estate. 

14.	The proceedings are brought for and on behalf of the deceased estate of late Vagi Igarang. The deceased, Vagi Igarang, died intestate. The law governing deceased estates is the Wills, Probate and Administration Act Chapter 68. Sections 38 and 44 are relevant and they read: 
“38. GENERAL JURISDICTION.
The National Court has jurisdiction to grant probate of the will or administration of the estate of a deceased person leaving property within the country.
.......
44.	INITIAL VESTING IN PUBLIC CURATOR.
Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary.”
15.	The law is clear.  Section 44 provides that when a person dies intestate, that is, without leaving a Will, his estate is vested with the Public Curator/Trustee of Papua New Guinea to manage the estate until letters of Administration are granted. Section 38 provides that the National Court has the jurisdiction to grant Letters of Administration. Where a person other than the Public Trustee wishes to apply for the grant of administration, he is required to seek the consent of the Public Trustee under Section 9 of the Public Trustee Act Chapter 81. The procedure and process involved in applying for the grant of letters of Administration are set out in Order19 of the National Court Rules.

16.	In the present case, the deceased, Vagi Igarang, died intestate. His estate is vested with the Public Trustee. There is no evidence of any letters of administration being granted to anyone including the Plaintiff. The contention that the Public Trustee has consented to the Plaintiff to pursue the claim for the deceased estate is a fallacy as the Public Trustee does not have the power to grant the administration of a deceased estate. 

17. 	This is not an action brought by a beneficiary under the Wrongs (Miscellaneous Provisions) Act, where Sections 25, 26 and 27 of that Act applies. The present action is an action brought on behalf of the deceased estate against the Employer for wrongful termination and for outstanding entitlements. The right person to institute the proceedings is an Executor or an Administrator of the Deceased estate. The Plaintiff is no such person. 

18.	For the foregoing reasons, I find the Plaintiff, does not have legal capacity to institute the current proceedings. The proceedings are therefore incompetent and shall be dismissed.
Other Issues
19.	Although the proceedings are incompetent, I will generally address the other issues for completeness.
b.	Whether the deceased’s termination of employment was wrongful 
20.	The facts surrounding the termination of employment are disputed. The Plaintiff says the deceased was on sick leave and he was wrongfully terminated without notice. The Defendants contend that the deceased was granted an extended sick leave. Rather, he was asked to resign due to failing health. Although the deceased did not expressly resign, his employment was terminated in November 2022 due to his deteriorating health condition. The failing health condition led to the eventual death a few months later.  
	
21.	The Plaintiff has the burden of proving liability and damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) 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.
22.	The evidence presented by the Plaintiff lacks credibility. Firstly, the Plaintiff’s own affidavits did not have a translation clause to show that the contents in the English language were translated and understood by her. Secondly, her evidence and that of her witness, Charles Moreva, contains speculations, opinions and assumptions on material aspects of the claim. For example, the witnesses allege the deceased was not paid his entitlements for the last 26 years. There is no evidentiary basis to make such a claim. Those facts are peculiarly within the knowledge of the deceased. Or alternatively the facts can be elicited from the HR department of the Defendant company. The Defendants have clearly denied those facts and state in their own evidence that all entitlements were paid in four intervals, over the last 26 years and nothing is outstanding. 

23.	I accept the evidence of the Defendants as truthful that the defendant was terminated on medical grounds. The deceased could not continue his employment because of the condition he was in, and the Defendant company likewise can keep him employed in that condition. The medical evidence confirms this unfortunate state. The deceased was not terminated on any disciplinary grounds. The Defendant company was faithful in keeping the deceased employed since 1980 except for brief breaks in between and in continuous employment since 1996.The Court notes this long service history is a mutual arrangement, and reciprocal benefits flowed to the deceased as employee and the second Defendant as employer. I find nothing untoward in the conduct of the Defendants in dealing with the deceased, a long-time employee. 

24.	For this reason, I am not satisfied that the deceased was wrongfully terminated from employment. 

25.	 Even if the Court were to find the termination unlawful, the law is settled, and that is, the employee will only be entitled to payments for the notice period as exemplified in the following cases.

26. 	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.”
27.	In Mark Porawi v Agarwal and others (2023) N10118, I said this at paragraph 17 of the judgment:

“The Employment Act sets the minimum standards, terms, and conditions of employment. It safeguards against abusive behavior and from forced labour. The Act promotes fair and free employment relationship between employer and employee. This is understandable. An employee should not be forced to serve an ungrateful master under oppressive working conditions against his will. The master, likewise, is under no obligation to keep in continuous employment a defiant and disloyal servant no matter how experienced or qualified or skillful he or she may be. The only obligation they have is keeping their end of the bargain on the terms they have agreed.  Where there is ambiguity or silence or unresolved matter arising out of the relationship, the Employment Act applies, which provides useful guide for resolving the matters in dispute.” 

28.   	 I will apply the above principles in determining this case. The evidence shows the deceased was paid his final entitlements on 13th March 2023 before he passed away.

29,	My final observations relate to the claim for damages for breach of Constitutional rights. Apart from lack of proper pleadings and evidence, it is misconceived and mischievous. The employment laws sufficiently provide or govern employment relationships. Where there is a breach of that relationship, remedies are provided under the employment contract law and the Employment Act. It is a misconception to insist on separate and additional claims under the guise of breach of Constitutional rights.

30.	In conclusion, I am not satisfied that the deceased’s employment was wrongfully terminated. I am not satisfied that the deceased was owed any entitlement more than the amount paid. The result the Plaintiff failed to prove her allegations. I will therefore dismiss the proceedings on the merits as well.

Observation
31.	It seems the Plaintiff was ill advised by those who were helping her to institute the current proceedings. She could have done things differently if she received proper legal advice. Be that as it may, the Court will not treat her differently as she made that decision to pursue this matter personally and not through a lawyer.

Costs
32.	Generally, costs follow the event. This means the one who wins is entitled to the costs. The Defendants have succeeded in defending the claim and thus are entitled to the costs of the proceedings.

Orders
33.     The Court orders:
1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiff shall pay the cost of the proceeding, to be taxed if not agreed,
3.	Time be abridged
________________________________________________________________
Nellie Igarang:	Plaintiff in person
Kesno Lawyers:	Lawyers for the Defendants