Cosmas Gawi v RD Tuna Canners Limited (2013) N5336

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 22 August 2013
• Citation: (2013) N5336
• Docket Number: WS NO 765 OF 2010
• Year: 2013

Full Title: WS NO 765 OF 2010; Cosmas Gawi v RD Tuna Canners Limited (2013) N5336

National Court: Cannings J

Judgment Delivered: 22 August 2013

LAW OF EMPLOYMENT—wrongful dismissal—oral contract—whether contract lawfully terminated for cause; Employment Act, s36 (grounds for termination of contract)—whether employee paid proper amount of salary in lieu of notice; Employment Act, s35 (termination of contract without notice).

The defendant terminated the plaintiff’s employment for cause, without notice or money in lieu of notice, on the ground of theft of company property. The plaintiff sued the defendant, claiming damages for wrongful dismissal, arguing that the defendant breached the contract of employment as his alleged theft of property was unproven and the defendant failed to act as soon as practicable and failed to pay him money in lieu of notice. The defendant denied liability, arguing that the proceedings should be summarily dismissed due to defects in the statement of claim and that the plaintiff had been lawfully terminated for cause, so there was no obligation to give notice or pay money in lieu of notice.

Held:

(1) The statement of claim sufficiently pleaded a cause of action in breach of contract.

(2) The plaintiff proved that he was employed under an oral contract of employment and that its terms were breached in that (a) none of the grounds of termination for cause prescribed by s36(1) of the Employment Act applied and (b) the defendant failed, by waiting for more than four months after the alleged theft, to terminate the contract “as soon as practicable after the happening of the event on which the termination is based” and (c) the defendant, being obliged to pay salary instead of notice (which, in this case, pursuant to s34(4)(d) of the Employment Act, was four weeks) failed to pay that amount.

(3) The plaintiff therefore established a cause of action in breach of contract.

Cases cited

The following cases are cited in the judgment:

John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092

Samoua v Aces Venture Ltd (2013) N5325

STATEMENT OF CLAIM

This was a trial on the question of liability.

1. CANNINGS J: The plaintiff Cosmas Gawi is seeking damages for wrongful dismissal against the defendant, his former employer RD Tuna Canners Limited. The plaintiff commenced employment on 25 January 1999. He was a lead person in the general services...