Robert Darragh v Roman Kayumu

• Jurisdiction: Papua New Guinea
• Judge: Higgins, J.
• Judgment Date: 22 September 2015
• Citation: (2015) N6068
• Court: National Court
• Year: 2015
• Judgement Number: N6068

Full : CIA NO. 160 OF 2013; Robert Bob Darragh and Darragh’s Welding and Steel Construction Limited v Roman Kayumu (2015) N6068

National Court: Higgins, J.

Judgment Delivered: 22nd September 2015

N6068

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 160 OF 2013

BETWEEN:

ROBERT BOB DARRAGH

First Applicant

AND:

DARRAGH’S WELDING AND STEEL CONSTRUCTION LIMITED

Second Applicant

AND:

ROMAN KAYUMU

Respondent

Kokopo: Higgins, J.

2015: 9th June, 19th August, 8th & 22nd September

APPEAL FROM DISTRICT COURT - application to set aside ex parte judgment – decision to refuse application defective – good defence on the merits – long delay explained – wrongful dismissal lies only against employer – whether dismissal for cause open.

Cases Cited:

Papua New Guinean Cases

Barker v. The Government of PNG [1976] PNGLR 340

Green & Company Ltd v. Green [1976] PNGLR 73, 77

Greene v. Greene [1976] PNGLR 73

Koroguen v. Wagen [2008] PGNC 108

Lambu v. Torato [2008] PGSC 34

Murphy v. Mundell [1969] PGSC 56

Paraka v. Kava [2000] PNGNC 40

Page P/L v. Malipu Bus Balakau [1982] PNGLR 140

Porgera Joint Venture v. Kami [2010] PGSC 11

Putput Logging v. Ambalis [1992] PNGLR 159, 164

Rainbow Holdings P/L v. Central Province Forest Industries P/L (Per Liq Apptd) [1983] PNGLR 34, 40

Tolanas v. Gipe [2008] PGNC 179

Overseas Cases

Bowmakers Ltd v. Barnet Instruments Ltd [1945] 1KB 65

Blunden v. Commonwealth of Australia [2000] FCA 1581

Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541

Stefek v. Garnama Pty Ltd [2014] ACTSC 140

Counsel:

Mr. Robert Asa, for the Applicants

Mr. Wesley Donald, for the Respondent

DECISION

22nd September, 2015

1. HIGGINS, J: On 14 July 2008 the respondent, Roman Kayumu, filed a summons in the District Court at Rabaul. That summons instituted proceedings by Mr. Kayumu against the applicants for unlawful dismissal.

2. It recited that the respondent had been employed by “the defendant” for the last 12 years. He, therefore, sought “entitlements” consequent upon the termination of his employment.

3. Those entitlements he particularised as follows:

1. Backdated Pay K1,920.00

2. Damages for unlawful termination K2,080.00

3. General Damages K4,500.00

4. Punitive Damages K1,000.00

5. Costs K 500.00

6. Any other orders as the Court deems fit.

4. In the Statement of Claim, it was alleged that the second applicant was incorporated and carried on the business of selling fuel and related items under the name “Darragh’s Mobil Center Point”. The respondent was employed as a “fuel regulator”.

5. At the outset it is apparent that the second applicant was wrongly described in the title to the proceedings. It is a limited company. That was an error of form and easily corrected. I have, with the consent of the parties, duly amended the description of the second applicant. However, that brings into sharp relief the status of the first applicant. He is alleged to have been, with the second applicant, the employer of the respondent.

6. It is inherently unlikely that the two applicants would be the respondent’s employer. Rather, it is highly likely that the second applicant was the employer; being a company owned, and no doubt controlled, by the first applicant.

7. The Statement of Claim recited that “no reasonable opportunity was afforded to the Plaintiff to response (sic) to the alleged and false allegations brought against him”.

8. Those allegations are somewhat confusingly referred to in the next paragraph.

“6. As a result of the false allegations, threats were leveled (sic) against the complainant, and the complainant’s good name and repute had been tarnished after almost 12 years of his employment with the Defendants, his name had not been defamed”.

9. I think the allegation was intended to convey that the respondent was defamed after 12 years of good repute as an employee of the applicants by reason of the “false allegations”.

10. Those allegations were particularised as follows:

“(a) Suspicious (sic) of me being a thief.

(b) Threats were levelled (sic) against the complainant that if he does not admit to committing the alleged offence then he would be taken to the old Rabaul airport (Matupit) and whilst the defendant (sic) will stand guard and the Policemen will severely assault the complainant.

(c) Complainant was involved with the Islands Petroleum Limited (IPL) in their evil acts of stealing fuel and re-selling for personal benefits without the knowledge of their employees”.

11. That last allegation is plainly confused. It is more likely that it was allegedly suggested to the respondent that he and employees of IPL were involved in stealing fuel without the knowledge of that company.

12. The next paragraph recites that:

“On the 19th November 2007, the Defendants unlawfully terminated the Plaintiff (sic) on suspicion of illegal dealings in the embezzlement of 300 litres of diesel fuel, which the Plaintiff denies.”

13. The wrongfulness of the termination of employment was particularised as arising from the following:

“(a) No notice of suspension or warning letter not (sic) given before terminated.

(b) No reasonable opportunity afforded to the complainant to respond to the false allegations of misconduct in the performance of his duties of employment given to the complainant.

(c) Refusal by the defendant (sic – which defendant?) to take into account the complainant’s valid reasons against his termination.

(d) Proper employment ethics and regulations under the Employment Act have not been complied (sic) before terminating the complainant.”

14. Presumably the latter particular was intended to be a reference to the Employment Act 1978 (PNG). It may be a reference to s.17:

“Each party to an oral contract of service that expires under Section 16 (end of wages period) shall, immediately on the expiration of the contract, be deemed to have entered into a new oral contract of service for a further period of the same duration and subject to the same terms and conditions as the expired contract unless –

(b) the contract has been summarily terminated by either party for lawful cause”.

15. Otherwise, under s.34(4) of that Act, the respondent, after 12 years of employment, if that was the fact, would be entitled to 4 weeks notice or payment in lieu. Indeed, 5 years service would suffice.

16. Under s.36(1) of the Act, complicity in theft of fuel from the employer would be lawful cause for instant dismissal without notice or payment in lieu of notice.

17. The applicants engaged Mr. Kevin Latu of Latu Lawyers to appear on their behalf to defend the claim.

18. Unfortunately, Mr. Latu was in poor health and did not attend to the matter as diligently as he might otherwise have done. That is referred to in an affidavit of Mr. Darragh, the first applicant, sworn 2 August 2013. To compound the problem, Mr. Darragh was himself in poor health and needed to go to Australia for specialist treatment. While he was away in Australia, apparently from October 2008 to at least mid-2009, the matter, first listed for hearing on 3 November 2008, was heard and determined in his absence. Counsel for the applicants did not attend either so a judgment was entered ex parte in favour of the respondent.

19. I have now received the District Court file. Copies have been given to the parties. It does record that the first appearance was on 23 September 2008 before Magistrate Linge at Rabaul. The applicants appeared, the first applicant being personally present. The first applicant told Magistrate Linge that the matter would be defended, that the respondent had not been “terminated” and that investigations into alleged fraud by the respondent were pending.

20. On 23rd October 2008, the first applicant sent a request for adjournment of the hearing date and a copy of his medical report to the Court in support of that request.

21. On 3 November 2008, there was no appearance for the applicants. The respondent sought an adjournment to enable his lawyer to attend. The matter was adjourned to 13 November 2008. On that day there was again no appearance for the applicants. The respondent again sought an adjournment for his lawyer to attend. The matter was adjourned to 10 December 2008.

22. On that day, Mr. Latu appeared for the applicants. The respondent appeared in person. Directions were given for a defence to be filed by 17 December 2008. The matter was adjourned to 19 December 2008.

23. On 17 December 2008, a defence, dated 12 December 2008, was filed. It raised the point that the respondent was employed by the second applicant only and had been summarily terminated as a result of allegations of stealing fuel and that investigations by police were pending.

24. On 18 December 2008, Mr. Latu wrote to the Court requesting that the matter stand down to 1:30pm on 19 December 2008 due to a clash with another matter he had in Kokopo at 9am the same day.

25. On 19 December 2008 at 10am, the respondent appeared in person. There was no appearance for the applicants. The...