Felix T Ramram v National Broadcasting Commission, Leo Morgan and Collee Puro (1990) N1110

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 16 November 1990
• Court: National Court
• Citation: (1990) N1110
• Year: 1990
• Judgement Number: N1110

Full Title: Felix T Ramram v National Broadcasting Commission, Leo Morgan and Collee Puro (1990) N1110

National Court: Doherty J

Judgment Delivered: 16 November 1990

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 113 OF 1988

FELIX T. RAMRAM

V

NATIONAL BROADCASTING COMMISSION

1ST DEFENDANT

LEO MORGAN

2ND DEFENDANT

COLLEE PURO

3RD DEFENDANT

Lae

Doherty J

16 November 1990

DAMAGES FOR WRONGFUL DISMISSAL — Application of Employment Act 373 to Instrumentalities of the State — Declarations not given without special circumstances — Distress for termination not actionable.

The plaintiff claimed damages amounting to salary and other employment entitlements for eight years following termination of employment with the first defendant. He purported to claim for distress and anxiety in the course of evidence. He also claimed against the second defendant (the Chairman) and the third defendant (an employee) of the first defendant. He sought declarations that he was wrongfully dismissed and entitled to be employed.

Held

(1) No action lay against the second and third defendants in the absence of evidence that they acted maliciously in having the plaintiff dismissed;

(2) Declaration of right to be employed will only be made in special circumstances;

(3) The Employment Act 373 does not apply to the National Broadcasting Commission but its provisions may be a guide in assessing damages;

(4) There is no automatic right to continuous employment or damages for early termination in Contracts of employment that are not for a fixed term.

Cases Cited

Beck v Atlas Hire (1984) P.N.G.L.R 158.

Nahau Rooney v Forest Industry Council of Papua New Guinea and Aaron Nawason unreported judgment N914.

Taylor v National Union of Seamen 1967 1 W.L.R., 532.

Ibrahim v University of Technology unreported N610.

Hodson v Independent State of Papua New Guinea (1985) P.N.G.L.R 303.

Cox v Phillips Industries 1976 I.C.R. 178.

Counsel

Mark Sevua for the Plaintiff

First, Second and Third Defendants: no appearance

JUDGMENT

DOHERTY J: The plaintiff sues the three defendants for "wrongfully and in breach in the provisions of the National Broadcasting Commission (National Officers and Employees) Determination" dismissing him and claims damages. The plaintiff was dismissed from his employment with the first defendant on the 1 February 1982. He claims damages in respect of:- Accrued recreational leave for three years, loss of recreational leave for four years, loss of superannuation for four years, loss of salary for a total of eight years, (less amounts earned by the plaintiff), expenses incurred as a result of the dismissal, general damages for mental distress, anxiety and embarrassment and declarations (apparently of his right to be employed).

The defendant is a statutory corporation incorporated under an Act, the Broadcasting Commission Act 149. At the time of the plaintiff's dismissal the second defendant was Chairman of the National Broadcasting commission and the third defendant was the plaintiff's immediate supervisor at his place of employment in Vanimo, West Sepik Province.

During interim applications in relation to this matter I enquired as to the basis for the liability of the second and third defendant and was informed that they were being sued in their personal capacity, not because they were servants or agents of the first Defendant, but because they had acted maliciously in the wrongful dismissal of the plaintiff.

I was informed that relevant evidence would be adduced to this effect.

In the documents before me I have been unable to find any personal action on the part of the second defendant towards the plaintiff. There is a letter with a reference to the "Chairman having terminated the plaintiff's services after taken into account offences committed by him in the past and more recently" (Sic). I find no evidence or suggestion of actions or any form of personal exchange between the second defendant and the plaintiff. From evidence before me he acted solely in a capacity as the Chairman of the first defendant I can find no liability against him personally. Accordingly I dismiss the claim against the second defendant.

The third defendant was the Acting Station Manager at Vanimo and was the person who physically wrote and signed the letter informing the plaintiff of his dismissal. That letter stated that the Chairman had terminated his services and informed the plaintiff of the Chairman's instruction to him (the third defendant) to bring his dismissal to the plaintiff's attention. There is no suggestion in the evidence before me that the third defendant acted maliciously in achieving the plaintiff's dismissal. The only evidence indicates that he was carrying out a direction given to him by the Board through the first defendant. Accordingly I can find no personal liability on the third defendant and dismiss the claim against him.

None of the defendants filed any notice of intention to defend or any defence to the claim by the plaintiff. From the evidence adduced by the plaintiff it would appear that the first defendant considered the plaintiff had 'committed more than one offence'. There is a reference in correspondence to 'past and (your recent offences) ' (Sic) and references in the plaintiff's correspondence with the Public Employees Association to his not coming to work. It would appear that the defendant may have considered he had a right to dismiss the plaintiff.

However he has not filed any defence in this Court nor raised any of these points and I can therefore only act on the information and the evidence before me.

Plaintiff was first employed by the defendant on 22 March 1971 and in the course of his employment was transferred to various parts of the country. In November 1979 he was transferred to Vanimo. He was accompanied by his family. His wife was also employed by the first defendant.

The first defendant is a statutory corporation with its own legislation which includes a power to employ personnel for the carrying out of its statutory duties. This is provided for in S.22 of the Broadcasting Commission Act Chapter 149 permitting the Commission to appoint "such persons" as it thinks fit and necessary for the purposes of the Commission (S.22 (1) ) and at S.24 providing for temporary employees.

Counsel for the plaintiff has tabled the determination of rates of pay, terms and conditions of employment to national officers and employees of the Commission. The determination is headed 'Broadcasting Commission Act No. 78 of 1973' and is stated to be the Determination No. 1 of 1975. This sets out the terms and conditions and the procedures for recruitment and discipline of employees of the National Broadcasting Commission. I note that the Determination is 1975, and therefore, would have been drawn up prior to the passing and the introduction of the Employment Act of 1978 373.

The Employment Act...