David Simon v Michael Koisen

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2018
• Citation: (2018) N7075
• Court: National Court
• Year: 2018
• Judgement Number: N7075

Full : HRA No 56 of 2015; David Simon v Michael Koisen, Chief Executive Officer, Teachers Savings and Loans Society and Teachers Savings and Loans Society (2018) N7075

National Court: Cannings J

Judgment Delivered: 31 January 2018

N7075

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 56 OF 2015

BETWEEN

DAVID SIMON

Applicant

AND

MICHAEL KOISEN, CHIEF EXECUTIVE OFFICER,

TEACHERS SAVINGS AND LOANS SOCIETY

First Respondent

AND

TEACHERS SAVINGS AND LOANS SOCIETY

Second Respondent

Waigani: Cannings J

2015: 18th December

2016: 23 February

2018: 31 January

PRACTICE AND PROCEDURE – whether it is an abuse of process to make an application for enforcement of human rights in an employment context – whether termination of employment can amount to a breach of human rights.

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether an employer’s act of terminating an employee’s employment was in the circumstances harsh or oppressive or otherwise not reasonably justifiable.

The applicant was employed by the respondents for four years and was given two weeks’ notice of transfer from a provincial location, where he had been based for two years, to head office. He resisted the transfer on hardship grounds and sought an explanation. The respondents failed to give him an explanation and charged him with disciplinary offences including insubordination and wilful disobedience of management’s orders and found him guilty and terminated his employment. The applicant filed an application for enforcement of human rights, arguing that his human rights had been breached in several respects in particular his right under Section 41 of the Constitution not to be treated harshly, oppressively or otherwise in a manner not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and seeking compensation. The respondents argued that the application should be summarily dismissed as an abuse of process as the applicant should have used conventional means of seeking redress by filing a writ of summons rather than making a human rights application. The respondents denied all allegations of human rights breaches, arguing that the applicant had been dismissed for cause and paid his lawful entitlements.

Held:

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

(2) The characterisation of the case as an unlawful termination matter did not mean that an application for enforcement of human rights was an improper mode of commencement of proceedings. There was no abuse of process. The preliminary argument of the respondents was dismissed.

(3) The applicant adduced credible evidence. The respondents failed to provide evidence to counter the applicant’s claim that he was given short and unreasonable notice to transfer, without any reasons being given, and that he was charged with disciplinary offences and then, when found guilty and had his employment terminated, was the victim of personal abuse.

(4) The actions of the respondents were harsh, oppressive and not reasonably justifiable and therefore unlawful, amounting to a breach of the applicant’s human rights under Section 41 of the Constitution.

(5) The applicant established a cause of action for breach of human rights and was entitled to damages.

(6) The applicant was awarded reasonable damages in the sum of K1,000.00 and exemplary damages of K1,000.00, being a total award of damages of K2,000.00.

Cases cited:

The following cases are cited in the judgment:

Apolonia Steven v Ram KC (2016) N6577

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

APPLICATION

This was an application for enforcement of human rights.

Counsel:

D Simon, the Applicant, in Person

F Lalo, for the Respondents

31st January, 2018

1. CANNINGS J: David Simon, the applicant, is applying for enforcement of his human rights under Section 57(1) of the Constitution, which he claims were breached by the respondents, his former employer, the Teachers Savings and Loan Society (TSLS), and its Chief Executive Officer, Michael Koisen.

2. Mr Simon was employed by TSLS from 17 November 2003 to 19 May 2008. He was a member services clerk, first in Port Moresby and later, from 3 April 2006, in Wewak. He was at the time married with three children. On 10 March 2008 he received a fax from Mr Koisen to say that he was being recalled to head office and that he had to start work there on 24 March 2008.

3. Mr Simon resisted the transfer on hardship grounds and sought an explanation. The respondents failed to give him an explanation and charged him with disciplinary offences including insubordination and wilful disobedience of management’s orders and on 19 May 2008 found him guilty and terminated his employment.

4. On 15 April 2015 Mr Simon filed an application for enforcement of human rights, arguing that his human rights had been breached in several respects in particular his right under Section 41 of the Constitution not to be treated harshly, oppressively or otherwise in a manner not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. He seeks compensation.

5. The respondents argue that the application should be summarily dismissed as an abuse of process as the applicant should have used conventional means of seeking redress by filing a writ of summons rather than making a civil claim for unlawful termination dressed up as a human rights application. The respondents deny all allegations of human rights breaches, arguing that Mr Simon was lawfully dismissed for cause and paid his lawful entitlements.

6. There are four issues:

1 Should the proceedings be summarily dismissed?

2 Has the applicant proven the factual allegations?

3 Has the applicant established a cause of action for breach of human rights?

4 What orders should be made?

1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

7. No. The proceedings are not an abuse of process. An abuse of process occurs when a party uses a wrong court process or acts improperly by trying to use court proceedings for an improper purpose. Here the plaintiff is an individual citizen with a genuine grievance who has filled out and filed in the National Court a form, and thereby commenced a human rights enforcement application. He filled out the correct form under Rule 7(1)(c) and Form 124 of the Human Rights Rules (Order 23 of the National Court Rules). He has done exactly as people in his position are encouraged to do by the making of the Human Rights Rules by the Judges in 2010.

8. I reject the submission of Ms Lalo, for the respondents, that the law as to termination of employment is governed only by private law and that the applicant was obliged to invoke conventional means of seeking redress by filing a writ of summons and that the respondents are being treated unfairly or that they have been denied the opportunity to file a defence. The respondents’ position is clear. They have had a full opportunity to be heard. They have not been dealt with unfairly.

9. Human rights as conferred and defined by the Constitution have universal application. They cannot be said to have no operation in any situation (Petrus and Gawi v Telikom (2006) N3373). The characterisation of the applicant’s case as an unlawful termination action does not mean that an application for enforcement of human rights is an improper mode of commencement of proceedings (Paru v Kotigama & Bmobile-Vodafone (2015) N6089, Apolonia Steven v Ram KC (2016) N6577). The respondents’ preliminary argument is dismissed.

2 HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?

10. One affidavit of Mr Simon has been admitted into evidence, together with three affidavits for the respondents.

Mr Simon’s evidence

11. Mr Simon’s version of events is this:

· He was transferred to Wewak in 2006. He went willingly, with his wife and three children, as his wife is from East Sepik Province, so when he went to work in the Wewak branch his wife and the children could live in the village and the children could go to school in the village. He paid his own expenses to transfer himself and his family to Wewak.

· He worked diligently to build up TSLS’s membership base in the East Sepik and as a result of his efforts plans were put in place to open a new TSLS branch in Wewak, scheduled to open in April 2008. The position of branch manager was advertised and he applied for the position in January 2008.

· On 10 March 2008 he received the fax from Mr Koisen to say that he was being recalled to head office and he had to report for duty there on 24 March 2008. No explanation was given and no financial assistance was offered to him to transfer himself and his family back to Port Moresby.

· Mr Simon wrote back immediately to Mr Koisen asking him to reconsider his decision but received no reply from him. Instead he...