Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole (2002) SC694
Jurisdiction | Papua New Guinea |
Date | 27 September 2002 |
Citation | (2002) SC694 |
Docket Number | SCA No 28 of 2001 |
Court | Supreme Court |
Year | 2002 |
Full Title: SCA No 28 of 2001; Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole (2002) SC694
Supreme Court: Amet CJ, Sheehan J, Kandakasi J
Judgment Delivered: 27 September 2002
1 Appeal—Practice and Procedure—Allowing judgment to go in default—Taking issue on pleadings not raised before the National Court—Judgment for matters not pleaded with particulars—Appellant not at liberty to hack back at the lack of pleadings.
2 Practice and Procedure—Loss of salary or wages and other benefits amount to special damages and they ought to be pleaded with particulars—Failure to request for further and better particulars and take issue on pleadings entitles a judge to make awards on evidence presented despite lack of foundation in pleadings.
3 Contract—Written contract of employment—Variation of contract not in accordance with terms of the contract—Termination in accordance with provisions of contract before agreed date of termination—No breach of contract and therefore no basis to award damages for breach of contract.
4 Damages—Damages for breach of employment contract—Purported variation to terms of contract not effected in accordance with contract—Termination in accordance with contract—Dismissed employer under obligation to mitigate loss—Evidence of part–time employment—No evidence of level of income—No loss or damages suffered.
5 Rooney v Forest Industries Council [1990] PNGLR 407, MVIT v John Etape [1994] PNGLR 596, MVIT v Pupune [1993] PNGLR 370, MVIT v Salio Tabanto [1995] PNGLR 214, Repas Waima v MVIT [1992] PNGLR 254, Collins v MVIT [1990] PNGLR 580, Ume More v The University of Papua New Guinea [1985] PNGLR 401, Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1, Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506, Andrew Kwimberi of Paulus M Dowa Lawyers v The Independent State of Papua New Guinea (1998) SC545, Yap v TS Tan [1987] PNGLR 227, Soso Tumu v The State [2002] PNGLR 250, Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Goss v Nugent (1833) 5 B & Ad 54; Gillespie Bros & Co v Cheney, Eggar & Co [1896] 2 QB 59; Edwards v O'Connor [1991] 2 NZLR 542, Ilkiw v Samuel [1963] 2 All ER 879, Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, London Passenger Transport Board v Moscrop [1942] 1 All ER 9, Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490 and Hadkinson v Hadkinson [1952] 2 All ER 567 referred to
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Amet CJ:
The Appellant Papua New Guinea Banking Corporation (PNGBC) appeals against a decision of the National Court awarding the Respondent a sum of K160,834.66 as damages for wrongful dismissal.
The Respondent was employed under a written contract with the Appellant Bank as the Executive Manager, Lending Services for a period of three years commencing on 1 June 1998. On 11 October 1999 his contract of employment was terminated. In proceedings he instituted in the National Court, on 3 December 1999, the Court declared that the decision of the Appellant to terminate the contract of employment was null and void.
At the time of the termination of the contract on 11 October 1999, the Appellant paid the Respondent the sum of K144,953.43 as his entitlements pursuant to Clause 28(b) of the Contract of Employment. This amount represented the Respondent's entitlements for the period of twelve months. At the time of his termination, the Respondent had one year and eight months remaining under his contract of employment.
The Respondent then commenced proceedings in the National Court for damages for unlawful termination, for the remaining eight months under the Contract of Employment.
The Court upheld this claim as being correct in law, applying the ruling in Rooney v Forest Industries Council [1990] PNGLR 407 and concluded that since he was unlawfully dismissed, the Respondent is entitled to salaries and other entitlements or benefits for the balance of his contract.
The Appellant contends that the learned trial judge erred in fact and law in ruling that the Respondent was entitled to judgment in his favour for the sum of K160,834.66, as special damages for wrongful dismissal from his contract of employment, because it had already paid the Respondent his contractual entitlements in the sum of K144, 953.45 upon his termination.
The Appellant further contends that the Respondent's claim was only limited to general damages for distress and suffering, but concedes that the special damages award of K15,000.00 for distress and suffering can be affirmed. It says further that the award of K9,377.84 for interest on the principal sum be set aside but interest at 8 percent may be calculated from the date of filing of the writ on the sum of K15,000.00 special damages.
Clause 28(b) of the Contract of Employment provides for termination of the contract by the bank in the following terms:
"In the event that the bank terminates this agreement for reasons other than unsatisfactory performance and/or cause then and in that event the officer will be entitled and the Bank shall pay to the officer, the salary and all other benefits pursuant to this Agreement, however described for the unexpired duration of this agreement or a maximum of twelve months whichever is lesser."
Whatever the precise reasons for the termination of employment of the Respondent by the Appellant does not matter because the National Court had declared that the termination was unlawful.
In my opinion, the termination clearly fell within the provisions of Clause 28(b), that is that the termination was for reasons other than unsatisfactory performance and/or cause. The Bank was then obliged to pay the salary and all other benefits for the unexpired duration of the agreement or a maximum of twelve months whichever is the lesser.
The Appellant knowingly and correctly calculated the Respondent's entitlements in the sum of K144,953.43, which it paid into the Respondent's account on the date of the termination, 11 October 1999.
I consider that the case relied upon by the learned trial judge as stating the law on the subject, Rooney v Forest Industries Council [1990] PNGLR 407 is to be distinguished from the facts of this case. In this case, the contract of employment specifically provides for termination for reasons other than unsatisfactory performance and/or cause. The termination having been found by the Court to be unlawful and thus inferentially not being for unsatisfactory performance and/or a good cause, then the entitlements of the Respondent were to be in accordance with Clause 28(b).
That being the full entitlements for such a termination, in my opinion the Respondent was not entitled to the balance of the period of the contract remaining and I consider therefore that the learned trial judge erred in extending the proposition enunciated in Rooney v Forest Industries Council [1990] PNGLR 407.
The Appellant has conceded that the claim for special damages for distress and suffering could be affirmed, the only head of damages the respondent could legitimately claim plus interest.
In these circumstances therefore, I am content to uphold the appeal on this ground alone without needing to determine the other grounds of appeal.
I would therefore uphold the appeal with costs.
Sheehan J:
I have read the judgment of the Chief Justice (Amet CJ) and my brother Kandakasi J. I agree with the conclusions reached and the orders proposed by them.
Kandakasi J:
This is an appeal against a decision of the National Court awarding the Respondent ("Mr Tole") a sum of K160,834.66 on 14 March 2001 as damages for wrongful dismissal. That followed an entry of judgment against the Appellant ("PNGBC") on 7 June 2000 and a refusal of an application by PNGBC for a stay of the assessment of damages. An appeal against the refusal to stay was filed and was set for hearing on the same date as this appeal but was abandoned at the hearing.
Arguments of the Parties
PNGBC argues that Mr Tole is not entitled to the damages that were awarded to him by the National Court. It advances two reasons, the second being an alternative to the first. The first reason is that Mr Tole did not plead with sufficient particularity and pray for any of the...
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