SC1762

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 03 OF 2016

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)

BETWEEN:
TELIKOM (PNG) LIMITED
Applicant

AND:
BORA WAMARA & 14 OTHERS
Respondents

Waigani: Gavara-Nanu J, Hartshorn J & Lindsay J
2018: 1 May
2019: 20 February

EMPLOYMENT – Redundancy – Agreement – Redundancy of surplus employees – Forced redundancy to comply with Government policy

EMPLOYMENT – Retrenchment of employees made under redundancy agreement – Forced redundancy permitted by redundancy agreement.

JUDGMENT – Wrong findings of fact – Decision against the evidence and weight of the evidence – Pleadings – Pleadings not disclosing a reasonable cause of action.

Cases cited:

Geno & Nama v. O’Neill and Speaker of Parliament (2017) SC 1617
Ume More & Ors v. University of Papua New Guinea [1985] PNGLR 401 

Counsel:

J. Talipan, for the Applicant
J. Kama, for the Respondents

20th February, 2019 

1.	BY THE COURT: This is an application by the applicant made pursuant to s.155 (2) (b) of the Constitution, seeking review of the decision of the Deputy Chief Justice Sir Gibbs Salika (as he then was), given on or about 30 April, 2015. Leave has been granted for this application.

2. 	The applicant is a company which was incorporated under the laws of Papua New Guinea on 24 December, 1996, following the passing of the Post & Telecommunication Act 1996, by the Parliament. This also resulted in the repeal of the then Post & Telecommunication Corporation Act, (Chapter No. 394). The Post & Telecommunication Act 1996 provided for the creation of three new entities, one of which was the applicant. The others were the Papua New Guinea Telecommunication Authority or PANGTEL, which was the regulatory body and Post PNG Limited.

3.	The Post & Telecommunication Act 1996 and the Gazettal notices issued for it provided amongst others, that all persons employed by the then Post & Telecommunication Corporation (PTC) were to be transferred to the three new entities except for those employees who were considered excess or unnecessary. Such employees were made redundant. The redundancy exercise for this purpose was referred to as “forced redundancy” or retrenchment under Clause 36 of the Redundancy Agreement entered into between PTC and the Telecommunication Corporation Workers Union in 1994. 

4.	We find that the respondents who were all security guards employed by PTC were bound by the terms of the Redundancy Agreement. That Agreement was made under the Industrial Relations Act, Chapter No. 174 and had the approval of the Department of Labour and Industrial Relations.

5.	The respondents were retrenched in 1995, pursuant to Clause 36 of the Redundancy Agreement.  

6. 	The learned trial judge dismissed all the claims by the respondents. His Honour however, found that the respondents were not paid their full entitlements under the Redundancy Agreement. The learned trial judge as a result awarded amounts ranging from the lowest of K00.08 to the highest of K369.43. His Honour found that PTC was liable to pay those amounts. Thus, his Honour said liability passed onto the applicant. The learned trial judge found amongst others, that the applicant was in breach of a “contract” with the respondents.  His Honour went on to award K500.00 to each of the 14 respondents. He multiplied that amount by 20 years for the period from 1995 to 2015. Thus the respective amounts he awarded to each respondent was K10,000.00. This was multiplied by 14 respondents, thus totalling K140, 000.00. Interest was awarded at 8% per annum as well as costs.

7. 	The pertinent parts of the learned trial judge’s judgment appear at the two last paragraphs of his judgment.

“37. The Liabilities of PTC passed on to Telikom after Telikom came into being. Telikom is now therefore responsible for the breach of contract by PTC. In that regard I award K500.00 per year to each plaintiff for the breach of the contract. The breach has been for 20 years. Multiply K500.00 by 20 years gives me K10 000.00 per plaintiff for 14 plaintiffs is a total of K140, 000.00.”

“38. I will award 8% per annum interest on the K140, 000.00 and award costs to the plaintiffs as well.”

8. 	The initial outstanding amounts that the learned trial judge awarded to the respondents were based on one Owen Boku’s affidavit.  His Honour found that the amounts provided by Mr. Boku were taken from the applicant’s records. Thus his Honour found the evidence reliable and used it to determine the amounts awarded.

9. 	It should be noted that Mr. Boku’s affidavit is not in the Application Book, thus we are deprived of his evidence. It is also not known whether Mr Boku was an employee of PTC, and how he arrived at the amounts which the learned trial judge accepted.

10.	Having carefully considered submissions by counsel and the evidence before us, we are of the respectful opinion that the learned trial judge made fundamental errors in his decision. The respondents have conceded in their pleadings that they were also retrenched in accordance with a “Government Policy” as they were excess or unnecessary staff of PTC who could not be transferred to Telikom PNG Limited. Thus, each of the respondents having also been identified as excess or unnecessary staff by the applicant had to be retrenched in accordance with Clause 36 of the Redundancy Agreement. They were each paid all their entitlements which they accepted. According to the applicant the respondents were all casuals and were paid accordingly, no doubt at a rate lower than the rate for substantive employees. 

11.	There is no dispute that the retrenchment of the respondents was lawful. In our view, once the respondents accepted their respective retrenchment payouts that was where the matter ended for them. The payments they received and accepted settled all the claims they had against the applicant regarding their respective retrenchment entitlements. Thus, they could not after almost 6 years come back and complain about the payments, which they had already used. The respondents therefore in our view had no cause of action against the applicant. We therefore find that the learned trial judge erred in finding that the respondents were owed money by the applicant in outstanding entitlements.   

12.	Consequently, we find that his Honour erred in making the various awards. The retrenchment payments received by the respondents were one-off and final. Thus, we see no basis for the learned trial judge to make the various awards. 

13.	We also find that the learned trial judge fell into error when he found that the respondents were permanent employees of PTC.  We believe that his Honour's mind was influenced by this finding when he made the various awards to the respondents. The applicant averred that the respondents were all casual employees and specifically denied in its defence that the respondents were permanent employees.  The learned trial judge did not explain how he found that the respondents were permanent employees. The respondents did not plead the issue. 

14.	The learned trial judge also found that the applicant breached the “contract” but did not say which contract. If his Honour was referring to the Redundancy Agreement, he did not say what part of the Redundancy Agreement was breached.  But the more significant fact is that the respondents also did not plead a breach of the Redundancy Agreement in their Statement of Claim. 

15. 	Consequently, his Honour could not make the various awards on claims which the respondents did not plead or request in their Statement of Claim. See, Uma More & Ors v. University of Papua New Guinea [1985] PNGLR 401. It is trite law that pleadings drive the evidence and the outcome of a case. This Court in stressing these principles in Geno & Nama v O’Neill and Speaker of Parliament (2017) SC 1617, said:
	
“Proof of the Claim

In an ordinary civil claim, it is the pleadings that define the foundation of the claim (or defence to the claim) and it is the pleadings that drive the evidence and the outcome of the case. Findings of fact and reasonable inferences drawn from primary facts are made from the evidence and the law applied to reach a conclusion that determines claim and the relief to be granted. It is possible though for a case that raises purely legal issues on the pleadings based on uncontested facts to be determined without recourse to any evidence. The plaintiff bears the onus of proving the claim on the ordinary civil standard of proof- on the balance of probabilities”.

16.   It is therefore plain that the respondents not only had no cause of action against the applicant but that they also could not prove their claims. 

17.	For the foregoing reasons the application is granted. The decision of the learned trial judge is quashed. 

18.	The respondents will pay the applicant’s costs of and incidental to this application as well as the proceedings in the National Court.

Orders accordingly.
 ____________________________________________________________
Telikom (PNG) Limited In-house Lawyers: Lawyers for the Applicant
Jerry Kama Lawyers: Lawyers for the Respondents