Robert Karava v Kevin Byrne and Tourism Promotion Authority

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 19 March 1999
• Court: National Court
• Citation: [1999] PNGLR 39
• Year: 1999
• Judgement Number: N1805

National Court: Kapi DCJ

Judgment Delivered: 19 March 1999

N1805

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 392 of 1997

BETWEEN:

ROBERT KARAVA

Plaintiff

AND:

KEVIN BYRNE

First Defendant

AND:

TOURISM PROMOTION AUTHORITY

Second Defendant

Waigani: Kapi DCJ

11th September 1998, 19th March 1999

Contract of Employment – whether effectively resigned before termination – Procedure not followed on termination – Damages equivalent to wages for the period of proper notice.

J. Sirigoi for the Plaintiff

R. Riddle for the Defendants

19th March 1999

KAPI DCJ: The plaintiff was employed as a Promotion Officer - Domestic in the Marketing Division of Tourism Promotion Authority (TPA). He claims that he was unlawfully terminated by the Chief Executive Officer (CEO) of TPA and claims for orders (1) to quash the decision to terminate (2) to reinstate him to his position (3) to award damages for loss of salary and other benefits from the date of termination to the date of reinstatement.

The TPA denies liability on two basis. The first is that the plaintiff effectively resigned from his position and therefore the procedures required for terminating an officer on disciplinary grounds are not applicable. Alternatively, TPA claims that if the resignation was not effectively withdrawn, it had the right to hire and fire under the Terms and Conditions of Employment of TPA as well as under the common law and therefore the termination was legal and effective.

The parties agreed to the following issues to be determined in the present case:

(1) Whether or not the plaintiff effectively resigned before the notice of termination by the CEO for TPA took place?

(2) In the event that there was no effective resignation, did the CEO of TPA wrongfully terminate the plaintiff in the circumstances of this case?

The plaintiff was confirmed as a Promotion Officer - Domestic in the Managing Division of TPA on the 18th April 1995. The contract of employment was open-ended.

Resignation

It is not disputed that the plaintiff had previously indicated his desire to leave the employment of TPA on several occasions. It is also not disputed that on each of these occasions, he had withdrawn his intention to leave.

Sometimes before the notice of termination was served, the plaintiff had once again indicated his desire to leave the employment of TPA. This is clearly acknowledged in the notice of termination letter dated 16th May 1997.

The plaintiff claims that subsequently to his notice to resign but before termination, he expressed his desire to withdraw his intention to leave and this was accepted by the CEO. Therefore, he claims that there was no effective resignation.

The CEO claims that the plaintiff did not withdraw his intention to resign and he denies that he accepted the withdrawal.

I have considered all the evidence on both sides and the submissions put tome by counsel.

It is common ground between the parties that the plaintiff indicated his desire to leave the employ of TPA. It is not clear from the evidence when precisely the plaintiff intended to leave. In his affidavit, the plaintiff indicated he would leave after completing the Cruise Ship Strategy. This is...