National Airline Commission, trading as Air Niugini v Valerian Lysenko [1986] PNGLR 323

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1986] PNGLR 323
• Date: 05 December 1986
• Year: 1986

Full Title: National Airline Commission, trading as Air Niugini v Valerian Lysenko [1986] PNGLR 323

Supreme Court: Bredmeyer J, Cory J, Wilson J

Judgment Delivered: 5 December 1986

1 Master and servant—employment contract—redundancy clause—reason for termination

2 MASTER AND SERVANT—Contract of employment—Construction and effect—Termination of services—No reason given or required—Redundancy clause—Redundancy pay dependent on objective facts at date of dismissal.

3 MASTER AND SERVANT—Contract of employment—Construction and effect—Termination of services—Dismissal for proven misconduct—Proof of misconduct required.

The contract of employment of a pilot with Air Niugini provided (cl 3) that a person with the pilot's length of service could be dismissed by one month's notice in writing or one month's salary in lieu of notice. The clause also provided that nothing in it derogated from the employer's right at common law to dismiss a pilot without notice for "proven misconduct or other proven sufficient cause". Clause 12 provided that where a person is dismissed for redundancy he is entitled to a redundancy payment based on a formula involving the person's level of pay and years of service.

A senior pilot with eleven and a half years service was given one month's pay in lieu of notice and sued to recover redundancy pay. The trial Judge found that there was a redundancy situation at the time of the dismissal, but that the main reason why the pilot was singled out for dismissal was that management considered him guilty of misconduct. On appeal from an award of redundancy pay plus interest,

Held,

on a proper construction of the contract,

(1) The pilot could only be dismissed for misconduct or other sufficient cause where there was proof thereof.

(2) Management's belief in misconduct did not satisfy the requirement of proof.

(3) Accordingly, the pilot was to be treated as having been dismissed for no stated reason under cl 3.

(4) The entitlement to redundancy pay under cl 12 was dependent on the objective fact of redundancy at the date of dismissal.

(5) There being a redundancy situation at the time of dismissal the pilot was entitled to redundancy pay.

Appeal

This was an appeal from a decision of Barnett J in which he awarded a pilot dismissed by the appellant, redundancy pay plus interest.

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Bredmeyer J:

This is an appeal against a decision of Barnett J awarding K77,403.51 redundancy pay plus interest to the respondent. The respondent was a pilot employed by Air Niugini whose services were terminated in March 1985. The appellant appeals as of right on the trial Judge's finding of estoppel in pais against the appellant. The appellant seeks leave to appeal on findings of fact that the respondent was terminated as redundant. The respondent in turn has filed a notice under O7, r28 of the Supreme Court Rules claiming that the trial Judge should have found that the plaintiff was...