SC1079

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 17 OF 2007

BETWEEN:

PACIFIC INTERNATION HOSPITAL LTD
Appellant

AND:

JOHSITA JOTHIMANIKAM
Respondent

Waigani: Gavara-Nanu, J & Mogish & Manuhu JJ

2009:	 23 November
2010: 27 October

PRACTICE & PROCEDURE – Employment Act, Chapter No. 373; s. 138 and Employment Regulations; s. 81 (1) – Right of an employee to require information from an employer pursuant to s. 138 of the Employment Act – Duty of an employer to provide information reasonably required by an employee.

PRACTICE & PROCEDURE – Employment Act; s. 138 – Denial of the employee's right to information by an employer would provide a cause of action for the employee to seek remedy in Court.

PRACTICE & PROCEDURE – Costs – Discretion of the Court – Appeal without merit – Costs on full indemnity basis.

Cases cited:

Tau Gumu v. Papua New Guinea Banking Corporation (2001) N2288

Counsel:

L. Putupen, for the appellant
N. Kopunye, for the respondent 

27 October, 2010

1	by the court: The appellant is appealing against the whole of the decision given by Kandakasi, J on 21st March, 2007, in which his Honour held that the appellant who was the former employer of the respondent was obligated to provide to the respondent records of her (respondent) employment with the appellant as required by the Employment Act. Charter No. 373 and the Employment Regulations.

2.	The appellant was ordered to provide those records forthwith.

Grounds of appeal.

1.	The learned trial judge erred in law when his Honour wrongfully assumed jurisdiction and made the subject orders in favour of the Plaintiff:-

(i)	In that Section 138 of the Employment Act creates an offence and provides for a criminal sanction of K200.00 fine without more.

(ii)	In that Section 138 of the Employment Act was not available to the Plaintiff to invoke as a way of discovery before suit. 

2.	The learned trial judge erred in law and fact when His Honour:-

(i)	failed to consider if the Plaintiff reasonably required the information she sought from the Defendant Employer.

(ii)	granted the subject orders not withstanding that the plaintiff was unreasonable in requiring the information sought.

3.	The Learned trial judge erred in law and fact when his Honour granted the subject orders without having any regard to the Defendant's right as an employer to maintain trade secrecy and confidentiality.

3.	Ground 3 was abandoned at the hearing hence it does not arise for our consideration. We are therefore left to consider only grounds 1 and 2.

4.	Ground 1 relates to the application of s.138 of the Employment Act. 

5.	At the outset, we find this ground incompetent for uncertainty in that, it does not state how the trial judge wrongly assumed jurisdiction.

6.	If the appellant is saying that the trial judge had wrongly exercised his powers under s. 138 of the Employment Act, to grant the orders sought by the respondent, then, that is not stated clearly in this ground of appeal. We nonetheless, assume that to be the case given the way Mr. Putupen argued the appeal, and if this is the case, there is no evidence before us to indicate that the trial judge had based his decision on s. 138 of the Employment Act. The only evidence before the Court is that his Honour made reference to s. 138 when the section was raised by the counsel for the appellant. 

7.	It should be noted that the respondent, who is a doctor by profession was employed by the appellant until the termination of her employment by the appellant on 26 October, 2006. For her termination pay, she claimed that she was not paid some of her entitlements, including overtime. As a result, she wrote to the appellant asking it to provide her with records relating to her employment, which the appellant as an employer was obligated to keep as required under s. 83 (1) of the Employment Regulations.

8.	It is noted that, from a letter sent to the appellant by the respondent's lawyers dated 16 January, 2007, the information requested by the respondent were, salaries paid; tax paid on behalf of the respondent, number of hours of work, both normal and after hours and fringe benefits payable to the respondent.

9.	In response to the respondent's request, the appellant only provided the respondent with computer print outs of the respondent's salary details, namely, gross salary, group tax, car allowance and net salary for the month of March, 2006 only. Those salary details are contained in Annexure 'N' to Dr. Balachandra Keni's affidavit sworn on 20 March, 2007.

10.	Section 138 of the Employment Act, provides among other things, that an employer who refuses to provide information that are reasonably required by an employee relating to his or her employment is guilty of an offence, carrying a penalty of up to K200.00.

11.	The counsel for the appellant in her submissions before his Honour argued that his Honour lacked jurisdiction to hear the application by the respondent in which the respondent sought a declaration that the appellant had the duty to provide the information required by the respondent, because s.138 of the Employment Act, was a penalty provision carrying a sanction. 

12.	In rejecting this argument, his Honour said the effect of s. 138 was one of the reasons why the appellant should have provided the information required by the respondent.

13.	His Honour in a brief ruling noted that the information provided by the appellant to the respondent, even after the appellant was warned about the effect of s. 138. were inadequate. He then went on to grant the orders sought by the respondent and awarded costs in favour of the respondent on full indemnity basis. 

14.	We are firmly of the opinion that the appellant has misapprehended the ruling by the trial judge because, it is clear from his Honour's ruling that he did not base his decision on s.138 of the Employment Act. He only highlighted the section, more particularly, its effect, to emphasize the point that section attracts a penalty for a failure by an employer to provide information reasonably required by an employee and that should have been sufficient to warn and compel the appellant to provide the information required by the appellant.

15.	We are also firmly of the opinion that the trial judge had, although not in express terms, exercised his inherent powers to grant the declaration and other orders sought by the respondent. We find no error in the exercise of the inherent powers by his Honour.

16.	The respondent in this case had by way of an Originating Summons sought a declaration that the appellant as her former employer was under a duty to provide the information she required as of right. 

17.	We consider that s. 138 in its application creates a statutory duty on an employer to provide the information that is reasonably required by an employee relating to his or her employment. Thus, in this case, the appellant was obliged to provide the information required by the respondent, for the information required by the respondent related to her employment, and it was reasonable for the respondent to request or require the information from the appellant.

18.	The issue of whether the information required by the respondent was reasonable is a legal issue, thus having found that the information required by the respondent was reasonable, it follows that the second ground of appeal which raises this issue must fail.

20.	The appellant has also argued that the respondent should have instituted these proceedings under a writ, so that the information she required regarding her employment could be sought through discovery under Order 9 of the National Court Rules. 

21.	We see no error in the respondent choosing to seek relief by way of a declaration through an Originating Summons under Order 4 r 3, firstly because there were no real disputes as to the facts relating to the information required by the respondent and secondly, the application through the Originating Summons was properly made pursuant to a right given to the respondent by s. 138 of the Employment Act.

22.	The right given to an employee by s. 138 to request or require information in relation to his or her employment from an employer, is a right, which if denied by the employer, as in this case, would provide a cause of action for the employee to seek remedy in Court against the employer: Tau Gumu v. Papua New Guinea Banking Corporation (2001) N2288.

23.	Mr. Putupen has also argued that the respondent cannot claim the benefit of s. 138 because she was no longer an employee of the appellant at the time she requested the information relating to her employment. The Employment Act, defines an employee as – "a person serving another person under a contract of service and includes a prospective employee." We are of the opinion that this definition of "an employee" is broad in its application and it does cover the respondent's situation. 

24.	For the foregoing reasons, we dismiss the appeal.

25.	In regard to costs, the trial judge ordered costs of the trial on full indemnity basis against the appellant. The basis of this order was that the appellant was given sufficient warning by the respondent's lawyers that it was obligated to provide the information required by the respondent, yet it failed to provide the information. His Honour also found that the appellant was unreasonable in the way it responded to the respondent's requests by providing details of the respondent's salary only for the month of March, 2006. We see no error in the Order given by his Honour on costs.

26.	We therefore affirm the trial judge's order that costs of the trial be paid by the appellant on full indemnity basis.

27.	In regard to the costs of this appeal, we are also of the opinion that this appeal has no merit; firstly, for the reason that appellant had in our view acquiesced the right of the respondent to obtain the information regarding her employment, by providing some of the information. We see no reason why the appellant could not provide all the information the respondent requested. We are therefore of the opinion that the appellant was mischievous in instituting this appeal which as we said has no merit.

28. 	In the circumstances, we also order that the appellant pay the respondent's costs of this appeal on full indemnity basis.

29.	Orders accordingly.

____________________________________
Greg Manda Lawyers: Lawyers for the Appellant
Bradshaw lawyers: Lawyers for the Respondent/Applicant