Apolonia Steven v Ram KC

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 December 2016
• Citation: (2016) N6577
• Court: National Court
• Year: 2016
• Judgement Number: N6577

Full : WS No 651 of 2015; Apolonia Steven v Ram KC, Store Manager, Modilon Retail Store and Shirley Tsang, 1st Managing Director, Modilon Retail Store and Martin Tsang, 2nd Managing Director, Modilon Retail Store and M & S Tsang Limited (2016) N6577

National Court: Cannings J

Judgment Delivered: 9 December 2016

N6577

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

WS NO 651 OF 2015

APOLONIA STEVEN

Plaintiff

V

RAM KC,

Store Manager, Modilon Retail Store

First Defendant

SHIRLEY TSANG,

1st Managing Director, Modilon Retail Store

Second Defendant

MARTIN TSANG,

2ndmanaging Director, Modilon Retail Store

Third Defendant

M & S TSANG LIMITED

Fourth Defendant

Madang : Cannings J

2015: 1, 2 December

2016: 9 December

HUMAN RIGHTS – application to contracts of employment – Constitution, Sections 36 (freedom from inhuman treatment); 41 (proscribed acts); 59 (principles of natural justice).

LAW OF EMPLOYMENT –oral contract of service – termination of contract – whether contract lawfully terminated for cause; Employment Act, Section 36 (grounds for termination of contract) – whether employee paid proper amount of salary in lieu of notice; Employment Act, Section 35 (termination of contract without notice) – whether employee entitled to salary in lieu of notice; Employment Act, Section 34 (notice of termination).

The fourth defendant terminated the plaintiff’s employment on the grounds of absence from duty, failure to follow instructions and giving improper instructions to other employees. The plaintiff sued the fourth defendant and three members of its management team, claiming damages for wrongful dismissal, and argued that the defendants breached the contract of employment by (1) breaching her human rights under the Constitution, Sections 36(freedom from inhuman treatment); 41(proscribed acts);and 59(principles of natural justice); and by (2) failing to pay her money in lieu of notice as required by Section 34 (notice of termination) of the Employment Act. The defendants denied liability and argued that there had been no breach of human rights and no breach of the Employment Act as the plaintiff had been lawfully terminated for cause under Section 36(1) of the Employment Act. A trial was conducted on the issue of liability.

Held:

(1) Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment.

(2) The plaintiff failed to prove that there had been any breach by the defendants of her human rights, as she had not been dealt with inhumanely, harshly or oppressively or in denial of the principles of natural justice.

(3) The contract between the plaintiff and the fourth defendant was an oral contract of service. Such a contract can be terminated by an employer at any time on any ground without notice provided that, if the contract is not lawfully terminated for cause under Section 36(1) of the Employment Act, an amount of salary for the number of weeks of the notice period is paid to the employee under Sections 34 and 35 of the Employment Act. If a contract is lawfully terminated for cause no salary in lieu of notice is payable.

(4) As the plaintiff was arguing that the fourth defendant unlawfully terminated the contract for cause she had to prove that none of the grounds of her termination fell within Section 36(1) of the Employment Act.

(5) The plaintiff failed to prove that none of those grounds applied. There was sufficient evidence that in fact the plaintiff had wilfully disobeyed lawful and reasonable orders and misconducted herself for the purposes of Sections 36(1)(a)(i) and (ii) of the Employment Act. This was a case of lawful termination for cause. Therefore the fourth defendant was not obliged to pay salary instead of notice.

(6) In fact, the fourth defendant paid the plaintiff one week’s salary in lieu of notice, which it was not obliged to pay; and later attempted to pay the plaintiff an additional K1,000.00 to avoid litigation, an amount it was also not obliged to pay.

(7) The plaintiff failed to establish a cause of action for breach of contract and the proceedings were dismissed. The parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Ayleen Bure v Robert Kapo (2005) N2902

Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290

Bernbert Toa v Ly Cuong-Long (2008) N3471

Jimmy Malai v PNG Teachers Association [1992] PNGLR 568

Joe Kala v New Britain Palm Oil Limited (2007) N3125

Meta v Kumono (2012) N4958

Pain v The State (2012) N4708

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Podas v Divine Word University (2011) N4395

Re Conditions of Detention at Beon Correctional Institution (2006) N2969Baisom Konori v Jant Ltd (2015) N5868

Vere Kilao v Bernard Tiau (2007) N5000

Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124

TRIAL

This was a trial of a wrongful dismissal action.

Counsel:

M Avasi, with leave, for the Plaintiff

G Purvey, for the Defendants

9th December, 2016

1. CANNINGS J: The plaintiff, Apolonia Steven, is seeking damages for wrongful dismissal against the defendants.

2. The plaintiff’s former employer, M & S Tsang Limited, which operates retail and wholesale businesses in Madang, is the fourth defendant. The other three defendants are members of the fourth defendant’s management team. The first defendant, Mr Ram KC, is the manager of the store at which the plaintiff was employed as a senior shop assistant. The second and third defendants, Shirley Tsang and Martin Tsang, are the owners, directors and managing directors of the fourth defendant.

3. The plaintiff commenced employment under an oral contract of employment on 3 April 2006. Her employment was terminated without notice and with immediate effect on 30 December 2014 after a meeting with Mrs Tsang. The grounds of termination were:

(a) too many absences from work;

(b) failure to follow instructions; and

(c) giving improper instructions to other employees.

4. The particular allegations regarding grounds (b) and (c) were that:

• the plaintiff, who worked in the manchester department of the store, had given instructions to other employees that no material was to be cut for sale in her absence,

• this had led to many complaints from customers and a downturn in business, and

• the plaintiff had been instructed by the store manager, Mr Ram, to cease this practice but had not followed instructions and continued the practice.

5. On 2 January 2015 the plaintiff was paid K2, 634.16 as finish pay, which included K134.40 as one week’s salary in lieu of notice.

6. The plaintiff, who was ably represented, with the leave of the Court, by Mr Avasi, argues that the defendants breached the contract of employment by:

(1) breaching her human rights under the Constitution, Sections 36(freedom from inhuman treatment); 41(proscribed acts); and 59(principles of natural justice); and

(2) failing to pay her money in lieu of notice as required by Section 34 (notice of termination) of the Employment Act.

7. The defendants deny liability and argue that there was no breach of human rights and no breach of the Employment Act.

8. The plaintiff gave oral evidence and was subject to cross-examination regarding five supporting affidavits. For the defendants, Mrs Tsang gave oral evidence and was subject to cross-examination regarding 16 supporting affidavits.

9. The central issue is whether the plaintiff has established a cause of action in breach of contract (wrongful dismissal). The specific issues are whether a breach of contract has been committed due to a breach of the plaintiff’s human rights by any of the defendants, and whether any breach of contract has been committed due to the fourth defendant’s failure to pay the proper amount of money in lieu of notice.

(1) WAS THERE ANY BREACH OF HUMAN RIGHTS?

10. Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment (Paru v Kotigama & Bmobile-Vodafone (2015) N6089).

11. The plaintiff argues that the defendants breached the contract of employment by breaching her human rights under the Constitution, Sections 36(freedom from inhuman treatment); 41(proscribed acts); and 59(principles of natural justice). She argues that on 30 December 2014 she was aggressively interrogated by Mrs Tsang over a trivial matter, defamed, verbally abused and sacked on the spot, after serving the company for more than eight years, without notice and without being given a right to be heard, and that the defendants failed to consider that she is a mother and a breadwinner in her family and that the termination of her employment was unlawful, unjust and unfair.

Section 36

12. The plaintiff argues that the treatment meted out to her was inhumane, so much so that Section 36 of the Constitution was breached.

13. As I pointed out in Bernbert Toa v Ly Cuong-Long (2008) N3471...