Benjamin Lopa v Air Niugini Ltd

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 06 October 2017
• Citation: (2017) N6972
• Court: National Court
• Year: 2017
• Judgement Number: N6972

Full : OS No 681 of 2017; Benjamin Lopa, Vincentia Tongia, Joseph Kumasi, Boris Ageda, Norman Daniel, Elijah Yangi, Abel Kanego and David Seken and National Air Pilots Union (NAPU) v Air Niugini Ltd (2017) N6972

National Court: Polume-Kiele J

Judgment Delivered: 6 October 2017

N6972

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 681 OF 2017

BETWEEN:

BENJAMIN LOPA, VINCENTIA TONGIA, JOSEPH KUMASI, BORIS AGEDA, NORMAN DANIEL, ELIJAH YANGI, ABEL KANEGO AND DAVID SEKEN

First Plaintiffs

AND

NATIONAL AIR PILOTS UNION (NAPU)

Second Plaintiffs

AND

AIR NIUGINI LTD

Defendant

Waigani: Polume-Kiele J

2017: 7, 29 September & 6 October

CIVIL LAW - Master and Servant – Written Employment Contract –National Airline Commission Act (Ch. No. 244); Industrial Relations (Ch. No. 174)

ESTOPPEL - Res judicata — Termination of employment contract unlawful - Claim for reinstatement — Claim determined - Whether claim for reinstatement estopped

EMPLOYMENT LAW — Contract of employment — Construction and effect — employment clause — Airline pilots - Terms of employment — Usual terms

Cases cited:

Papua New Guinea Cases

Alan Stevens v Kopi Larapa (2013) N5425

Central Bank of PNG v Gabriel Tugiau (2009) SC1013

Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285

Divine University v George Podas (2015) SC 1414

Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2013) N2498

Lysenko v. National Airline Commission [1988 – 89] PNGLR 69

National Airline Commission v Lysenko [1990] PNGLR 226

Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106

Pama Anio v Aho Baliki (2004) N2719.

Papua New Guinea Forest Authority v. Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (2003) N2456.

Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC 1060

Placer (PNG) Ltd v Alois Kawa (2008) SC 919

Telikom PNG Ltd v ICCC (2008) SC906

Wilson Thompson v NCDC (2004) N2686

Overseas’ cases cited:

Bank of New Zealand v. Simpson [1900] AC 182 at 187

Horsfall v.Braye (1908) 7 CLR 629

Marginson v Blackburn Borough Council [1939] 2 KB 426

Counsel:

Mr O. Dekas, for the Plaintiffs

Mr I. Shepherd, for the Defendant

Interlocutory Ruling

6th October, 2017

1. POLUME-KIELE J: The first plaintiffs by a motion filed on the 23rd of August 2017 sought order for interim injunctive relief; firstly to restrain the Defendant from taking action to evict them from company provided accommodation and secondly that the decision made by the defendant in September 2016 to terminate their respective employment with the Defendant be stayed.

Background Facts

2. The First Plaintiffs, at the time of filing these proceedings are still current members of the National Air Pilots Union but former employees of the Defendant. The First Plaintiffs were employed under an individual 2015 Contract of Employment until on or about September 2016 when they were terminated from their employment for misconduct under the 2015 Contract.

3. The Plaintiffs challenged the decision taken by the Defendant to terminate them in the National Court in OS (JR) No. 632-637, 648 & 649 of 2016. These proceedings were filed on the 23rd of September 2016 seeking Leave to review the decision of the Defendant to terminate their employment. Leave was refused to review the decision.

4. The plaintiffs appealed this decision to the Supreme Court in SCM No. 8-10 of 2017. The Supreme Court dismissed the appeal on 7th February 2017.

5. In an unrelated proceedings, OS No. 6 of 2015 (Clark Piokole v Air Niugini). The National Court per the decision of his Honour Kandakasi J delivered on the 21st of April 2017; the Court declared the Individual Air Niugini Pilots Contract 2015 unlawful, invalid and void ab initio.

6. The First Plaintiffs are now coming back to court claiming that they are covered under the decision in OS No. 6 of 2015 (decision subject to appeal before the Supreme Court – SCA No. 83 of 2017). The First Plaintiffs say that due to the declaration by the Court that the Individual Air Niugini Pilots Contract 2015 is null and void ab initio; the defendant cannot effect their termination under the terms of the said purported Individual Air Niugini Pilots Contract 2015. The reason being the purported action taken by the Defendant to terminate them was based on an illegal contract, therefore their termination is also deemed unlawful, invalid and void ab initio.

7. Consequently, the First Plaintiffs seek interim orders to restrain the defendant from evicting the First Plaintiffs from company provided accommodation and for the continuation of payment of rental of the property for the plaintiffs, Vincentia Tongia, Boris Ageda and Norman Daniel pending the outcome of the proceedings SCA No. 83 of 2017.

8. I note that the First Plaintiffs are not parties to OS No. 6 of 2015 or SCA No. 83 of 2017. Their interest in these proceedings is by way of their being members of the Second Plaintiff (National Air Pilots Union).

Relevant Law

Air Niugini Pilots Contract 2015 (the 2015 Contract)

Industry Based Agreement (the 2012 Agreements)

National Airlines Commission Act 1973 (Ch. No. 244)

The Plaintiffs Submission

9. The First Plaintiffs say that they had each entered into the same purported contract (“Individual Air Niugini Pilots Contract 2015”) that had been declared null and void in the proceedings (Clark Piokole v Air Niugini - OS No. 6 of 2015). Consequently they are entitled to the same remedy as the Plaintiff (Clark Piokole) in OS No. 6 of 2015. They say further that the Defendant’s action to terminate them pursuant to the terms of the Individual Air Niugini Pilots Contract 2015 is therefore null and void ab initio. Therefore their employment as employees of the Defendant should continue as per the terms of the Industry Based Agreement (the 2012 Agreements) that they entered into as members of the PNG National Airline Pilots Union (NAPU) and the Airline Pilots Association (APA).

10. Whilst noting the First Plaintiffs’ argument, there is presently no copy of the Individual Air Niugini Pilots Contract 2015 or the Industry Based Agreement (the 2012 Agreements) before the Court.

The Defendant’s Submission

11. The Defendant opposes the application and says that the First Plaintiffs have no cause of action against the Defendant. The First Plaintiffs are former employees of the defendant and were each employed pursuant to an Employment Agreement, known as the Air Niugini Pilots Contract 2015 (the “2015 Contract”) which were terminated in about early September 2016.Upon being terminated, the first plaintiffs sought judicial review of the decision. The judicial review application was dismissed by the National Court on the 4th of August 2017. The First Plaintiffs did not challenge the validity of the 2015 Contract.

12. The Defendant says that this is a case where the First Plaintiffs being unsuccessful in their claim in review proceedings, they have now embarked on this current proceeding. The First Plaintiffs’ first challenge was the decision to terminate their employment services in the judicial proceedings which has been finally determined in SCM No.3 of 2017.

13. The First Plaintiffs are now challenging the same decision and in these circumstances, the principle of res judicata and issue estoppel apply. The First Plaintiffs in the judicial review proceedings sought re-instatement and this is the same relief sought in this proceedings.

14. The Defendant says that the First Plaintiffs claim is in damages for alleged wrongful dismissal (which is denied), the measure of which is the period of notice of termination or if there is a disciplinary procedure in the contract, within such reasonable period within which the disciplinary proceedings would be commenced and concluded as held in the following cases: Central Bank of PNG v Gabriel Tugiau (2009) SC 1013; Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC 1060; Divine Word University v George Podas (2015) SC 1414; Placer (PNG) Ltd v Alois Kawa (2008) SC 919; Wilson Thompson v NCDC (2004) N2686; Pama Anio v Aho Baliki (2004) N2719. These cases all relate to termination of employment for cause as is this current case.

Issue

15. There are at least two matters for determination. These being:

(i) Are the plaintiffs’ as former employee of Air Niugini (or the National Airline Commission) under a contract of service, entitled to remain on company provided accommodation upon their termination of employment?

(ii) Should a stay be granted for a course of action that has already been determined?

Analysis of the merits of the application

16. There is no dispute that, the First Plaintiffs employment, prior to termination was based on their individual written contract of employment (Air Niugini Pilots Contract 2015 (the 2015 Contract)) with the Defendant.

17. Whilst evidence of the contract has not been tendered in any of the affidavits filed into court, a number of case authorities...