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

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 March 2008
• Citation: (2008) N3290
• Docket Number: CIA NO 64 0F 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3290

Full Title: CIA NO 64 0F 2007; Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290

National Court: Cannings J

Judgment Delivered: 25 March 2008

N3290

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 64 0F 2007

BAL BAR

First Appellant

STETTIN BAY LUMBER COMPANY LIMITED

Second Appellant

V

MAIMA KORA

Respondent

Kimbe: Cannings J

2007: 23 November

2008: 25 March

LAW OF EMPLOYMENT – oral contract of service – termination of contract for cause – wrongful dismissal claim – whether contract of employment validly terminated.

The respondent was employed by a company as a security guard. The company sacked him on the ground of absenteeism. The respondent sued his immediate boss, the security manager (first appellant) and the company (the second appellant) in the District Court for wrongful dismissal. The District Court found in the respondent’s favour and awarded him general damages of K5,000.00 and special damages of K2,000.00, a total of K7,000.00. The appellants appealed on three grounds: (1) there was no evidence before the District Court of unlawful termination; (2) the award of damages was excessive as, even if termination were unlawful, the amount of damages is restricted to the notice period; and (3) the award of damages was excessive as there was no evidence to substantiate the amount of K7,000.00.

Held:

(1) There was ample evidence before the District Court of unlawful termination.

(2) The amount of damages for wrongful dismissal is not restricted to the notice period.

(3) The amount of K5,000.00 for general damages is not unreasonable.

(4) There was no claim for special damages in the District Court and no explanation was given of how the sum of K2,000.00 was arrived at; so ground 3 of the appeal was, to that limited extent, upheld.

(5) The appeal was substantively dismissed and the District Court’s order quashed and replaced with a substitute order: the respondent is awarded damages of K5,000.00 plus interest of K1,760.00, being a total judgment sum of K6,760.00; plus costs of K500.00.

Cases cited:

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Egga Pua v Otto Benal Magiten (2005) N2892

Livingston v Raywards Coal Co [1880] 5 App Cases 25

Naki v AGC (Pacific) Ltd WS No 1256/1999, 20.10.06

Vere Kialo and Chemica Didiman v Bernard Tiau CIA No 46/2006, 16.02.07

APPEAL

This was an appeal from a decision of the District Court upholding a claim for wrongful dismissal.

Counsel

T Tingnni, for the appellants

O Oiveka, for the respondent

1. CANNINGS J: This is an appeal from a decision of the Kimbe District Court in a wrongful dismissal case.

2 The complainant in the District Court was Maima Kora, who was for a number of years employed as a security guard by Stettin Bay Lumber Company. On 27 October, 2003, the company sacked him without notice, ie his employment was terminated on that day without prior notice and without paying him any money in lieu of notice.

3 He was told that he was being sacked as he was absent from duty without leave on 17 October 2003, he was seen to be drunk that day and he had a history of absenteeism.

THE DISTRICT COURT CASE

4 In January 2004, he sued his immediate boss, the security manager, Bal Bar, and his employer, SBLC, in the District Court, claiming K10,000.00 damages for wrongful dismissal, ie unlawful termination.

5 The case took a long time to be heard, apparently because of a shortage of Grade V Magistrates in Kimbe, but it was eventually resolved on 4 April 2007 by Magistrate Mr L Vava.

6 His Worship decided the case in Mr Kora’s favour. He held that the termination was unlawful as, in fact, Mr Kora was at work on 17 October 2003 until 1.00 pm when he signed off and went from the company’s head office at Buluma to his sister’s place at Kavui to attend to an urgent customary obligation. His Worship found, as a fact, that Mr Kora obtained permission from his immediate supervisor, Mr John Wakore, before signing off and that there was no evidence that he was drunk. His Worship relied on evidence from Mr Kora and two other company employees, in making those findings of fact.

7 His Worship considered that an affidavit by the company’s Administration Manager, Mr Reginald Ovasui, did not address the central issue of whether the reasons given to Mr Kora for his sacking were true or false. His Worship concluded that there was no evidence, for the purposes of the Employment Act, of a just or lawful excuse for terminating Mr Kora’s employment without notice. Therefore his termination was unlawful.

8 His Worship awarded Mr Kora general damages of K5,000.00 and special damages of K2,000.00, a total of K7,000.00.

GROUNDS OF APPEAL

9 The appellants, Mr Bar and SBLC, have appealed to the National Court on three grounds:

· ground 1: there was no evidence before the District Court of unlawful termination;

· ground 2: the award of damages was excessive as, even if termination were unlawful, the amount of damages is restricted to the notice period; and

· ground 3: the award of damages was excessive as there was no evidence to substantiate the amount of K7,000.00.

GROUND 1: WAS THERE EVIDENCE OF UNLAWFUL TERMINATION?

10 I have struggled to appreciate what point the appellants are trying to make with this ground of appeal. The notice of appeal states:

The Magistrate erred in law and fact to find the second defendant [SBLC] liable for unlawful termination when there was no evidence before the court.

11 Are the appellants really arguing that there was no evidence before the District Court? If so, the argument goes nowhere as clearly there was evidence.

12 The complainant (Mr Kora, the respondent to the present appeal) presented three affidavits, one from himself and the others from SBLC employees. They were aimed at establishing what happened on 17 October 2003 and the reasons he was given for being sacked. The defendants (the appellants in the present appeal) presented Mr Ovasui’s affidavit, which stated that Mr Kora had been given a warning notice in respect of a two day absence from duty in August 2003 and was suspended without pay for a week in September 2003, on the ground that he was absent without leave for one day. This affidavit was aimed, it appears, at establishing that Mr Kora had an absenteeism problem and there were good reasons for sacking him.

13 Thus, there was evidence presented by both sides of the case and it cannot be said that there was no evidence before the District Court.

14 When Mr Tingnni, for the appellants, made his oral and written submission, he travelled beyond the scope of the argument raised by the ground of appeal. He argued that there was no evidence of unlawful termination. Put the other way, he submitted that there was evidence that Mr Kora’s termination was lawful. Mr Tingnni referred to Section 36(1) (grounds for termination of contract) of the Employment Act, the provision that prescribes the circumstances in which an employer can terminate a contract of service without notice and without paying money in lieu of notice.

15 Section 36(1) states:

An employer may terminate a contract of service without notice or payment instead of notice—

(a) where the employee—

(i) wilfully disobeys a lawful and reasonable order; or

(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or

(iii) is guilty of a fraud or dishonesty; or

(iv) is habitually neglectful of his duties; or

(v) is imprisoned for a period exceeding seven days; or

(vi) is continually absent from his employment without leave or reasonable excuse; or

(vii) is convicted of an offence or contravention of this Act or any other law relating to employment; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

16 Mr Tingnni submitted that Mr Kora was guilty of breaching Section 36(1)(a)(i), (ii), (iv) and (vi), in that he:

· wilfully disobeyed a lawful and reasonable order;

· misconducted himself;

· was habitually neglectful of his duties; and

· was continually absent without leave or reasonable excuse.

17 Mr Tingnni submitted that the learned Magistrate erred by not making those findings. But he has failed to show me how his Worship erred.

18 His Worship did not ignore the evidence presented by the appellants. Nor did he fail to weigh the evidence. His Worship summarised the evidence presented by Mr Kora and the evidence presented by the appellants (which he was not impressed with), then made findings of fact that Mr Kora was at work on 17 October 2003 until he signed off at 1.00 pm after obtaining permission from his immediate supervisor to attend to an urgent customary obligation. His Worship was, in effect, finding that none of the circumstances in Section 36(1) applied.

19 Therefore if the company wanted to terminate the contract of employment it had to do so under Section 34 (notice of termination) and Section 35 (termination of contract without notice) of the Employment Act, which are the provisions that allow employers to terminate an oral contract of service with notice or by paying money in lieu of notice.

20 Section 34(2) states:

… a party to a contract of service may, at any time, give notice to the other party of his intention to terminate the contract.

21 Section 34(4)(d) states:

Where there is no provision in a contract of service for notice of intention to terminate, the length of the notice shall be not less than … four weeks'...