Rex Tomara v Job Dampen

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 28 November 2014
• Citation: (2014) N5821
• Court: National Court
• Year: 2014
• Judgement Number: N5821

Full : WS (HR) NO 1274 of 2012; Rex Tomara v Job Dampen, Philip Kinau, Security Investigation Officers, Ok Tedi Mining Ltd Security Division and Pema Pongo, Supervisor, Airport Security,Ok Tedi Mining Ltd Security Division and Trevor Green, Executive Manager, Asset Protection, Ok Tedi Mining Limited Security Division and Ok Tedi Mining Limited (2014) N5821

National Court: Cannings J

Judgment Delivered: 28 November 2014

N5821

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1274 0F 2012

BETWEEN

REX TOMARA

Plaintiff

AND

JOB DAMPEN, PHILIP KINAU, SECURITY INVESTIGATION OFFICERS, OK TEDI MINING LTD SECURITY DIVISION

First Defendants

PEMA PONGO, SUPERVISOR, AIRPORT SECURITY,

OK TEDI MINING LTD SECURITY DIVISION

Second Defendant

TREVOR GREEN, EXECUTIVE MANAGER, ASSET PROTECTION,

OK TEDI MINING LTD SECURITY DIVISION

Third Defendant

OK TEDI MINING LIMITED

Fourth Defendant

Waigani: Cannings J

2014: 29 July, 23 October, 28 November

HUMAN RIGHTS – proscribed acts – freedom from arbitrary search and entry – right to privacy – Constitution, Sections 41, 44, 49 – application of human rights in employment setting.

LAW OF EMPLOYMENT – wrongful dismissal – whether employer must give right to be heard to employee prior to termination for cause

The fourth defendant company employed the plaintiff as a security guard in its gold room and suspected him of smuggling gold. The company’s security division officers (the first and second defendants) conducted a body search of him as he was about to board a flight at the airport. The plaintiff initially agreed but after the search began, withdrew consent and left the airport. He later returned and participated in an interrogation by the company’s asset protection officers who then took him to his employer-provided accommodation and in his presence searched it. Those officers later that day obtained a search warrant in respect of the plaintiff’s village house and in the presence of his wife and with the assistance of Police officers, searched the house. No incriminating evidence was found during the body search or the searches of the employer-provided accommodation or the village house and the plaintiff denied that he was involved in gold smuggling. The next day the company, acting on a recommendation from the head of the asset protection division (the third defendant) terminated the plaintiff’s employment without notice and without giving him a right to be heard, on various grounds including that he was suspected of smuggling gold and could no longer be trusted. The plaintiff sued the company plus those persons involved in the body search, the interrogation session and the search of his employer-provided accommodation and his house and the decision to terminate his employment. The plaintiff argued that on four occasions the defendants breached his human rights, in particular the rights to protection from proscribed, particularly harsh or oppressive, acts (Constitution, Section 41), freedom from search of his person and property and entry of his premises (Constitution, Section 44) and the right to privacy (Constitution, Section 49). He also argued that he had been unlawfully terminated without notice and without good cause. He claimed damages in respect of two causes of action: (1) breach of human rights, on four occasions: (a) body search at the airport, (b) interrogation session, (c) search of employer-provided accommodation and (d) search of his house; (2) wrongful dismissal, ie breach of the contract of employment. This was the trial on liability.

Held:

(1) Section 41 of the Constitution proscribes (ie prohibits) and gives protection against seven sorts of acts, including those that are harsh or oppressive or disproportionate to the requirements of the particular case.

(2) Under Section 44 of the Constitution every person has the right not to be subjected to the search of his property or person except where the search is conducted (i) in accordance with a law regulating or restricting the exercise of that right that complies with Sections 44(a) or (b), or (ii) with the express or implied consent of the person whose person or property is searched.

(3) Under Section 49 of the Constitution every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except where his privacy is breached (i) in accordance with a law regulating or restricting the exercise of that right and complying with Section 38 of the Constitution, or (ii) with the express or implied consent of the person whose privacy is breached.

(4) An employee has no right to be heard before his employer decides to terminate his employment unless there is a term of the contract of employment providing for such a right. No such right exists in the Constitution or any other written law or under the underlying law (New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946 applied).

(5) The defendants did not breach any of the plaintiff’s human rights on any of the four occasions alleged by the plaintiff, as: (a) the body search was conducted in accordance with the conditions of the plaintiff’s employment and therefore with the consent of the plaintiff, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution and did not involve a breach of the freedom from arbitrary search; (b) the plaintiff freely participated in the interrogation session; (c) the search of the employer-provided accommodation was conducted in accordance with the conditions of the plaintiff’s employment and therefore with the consent of the plaintiff, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution and did not involve a breach of the freedom from arbitrary search; and (d) the search of the village house was conducted in accordance with a search warrant issued by the District Court under the Search Act, it was not conducted harshly or oppressively or in any way contrary to Section 41 of the Constitution.

(6) The defendant was not obliged to give the plaintiff a right to be heard prior to terminating the contract, there being no term of his contract of employment conferring that right.

(7) The plaintiff failed to establish a cause of action in breach of human rights or wrongful dismissal. The proceedings were entirely dismissed and the parties ordered to bear their own costs (in view of the validity and importance of the issues raised by the plaintiff, the genuineness of his grievance and the relative economic positions of the parties).

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

Meta v Kumono (2012) N4958

New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946

Pain v The State (2012) N4708

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Podas v Divine Word University (2011) N4395

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

STATEMENT OF CLAIM

This was a trial on liability to determine whether the defendants are liable in damages for breach of human rights and/or wrongful dismissal.

Counsel:

J Kolo, for the plaintiff

A Mana & E Rere, for the defendants

28th November, 2014

1. CANNINGS J: The plaintiff Rex Tomara is suing his former employer Ok Tedi Mining Ltd (the fourth defendant) and a number of its asset protection officers (the first, second and third defendants) for breach of human rights and wrongful dismissal. This is the judgment on liability.

2. The company employed the plaintiff as a security officer at Tabubil, Western Province, from 1997 to 2012. His employment was terminated on 1 February 2012 as he was suspected of pilfering gold. There were four incidents the day before, 31 January 2012, which were connected to termination of his employment:

(a) the plaintiff was subject to a body search as he was about to board a flight at the airport;

(b) he was subject to interrogation by the company’s asset protection officers;

(c) his company-provided accommodation was searched, in his presence;

(d) his village house was searched, in his absence.

3. The plaintiff claims that the defendants breached his human rights during those incidents. He also claims that his termination was unlawful. He has commenced proceedings against the defendants, claiming damages. Three issues arise:

1. Has the plaintiff established a cause of action for breach of human rights?

2. Has the plaintiff established a cause of action in wrongful dismissal?

3. What declarations or orders should the Court make?

1. Has The Plaintiff Established A Cause Of Action For Breach Of Human Rights?

4. In the statement of claim the plaintiff alleges that the defendants breached six of his human...