HRA No 167 of 2019, Varo Valentine Kapigeno v Central Bank of Papua New Guinea and Loi Bakani, Governor, Central Bank of Papua New Guinea and Elizabeth Genia, Assistant Governor, Central Bank of Papua New Guinea and Bruce Kitchen, Facilities & Property Manager, Central Bank of Papua New Guinea and Patrick Kwiwa, Human Resources Manager, Central Bank of Papua New Guinea and Hitolo Galamo, Human Resources Officer, Central Bank of Papua New Guinea and Mauri Sere, Human Resources Officer, Central Bank of Papua New Guinea and Naomi Kedea, Human Resources Consultant, Central Bank of Papua New Guinea and the Independent State of Papua New Guinea (2020) N8167

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 January 2020
• Court: National Court
• Citation: (2020) N8167
• Year: 2020
• Judgement Number: N8167

Full Title: HRA No 167 of 2019, Varo Valentine Kapigeno v Central Bank of Papua New Guinea and Loi Bakani, Governor, Central Bank of Papua New Guinea and Elizabeth Genia, Assistant Governor, Central Bank of Papua New Guinea and Bruce Kitchen, Facilities & Property Manager, Central Bank of Papua New Guinea and Patrick Kwiwa, Human Resources Manager, Central Bank of Papua New Guinea and Hitolo Galamo, Human Resources Officer, Central Bank of Papua New Guinea and Mauri Sere, Human Resources Officer, Central Bank of Papua New Guinea and Naomi Kedea, Human Resources Consultant, Central Bank of Papua New Guinea and the Independent State of Papua New Guinea (2020) N8167

National Court: Cannings J

Judgment Delivered: 9 January 2020

N8167

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 167 OF 2019

VARO VALENTINE KAPIGENO

Plaintiff

V

CENTRAL BANK OF PAPUA NEW GUINEA

First Defendant

LOI BAKANI, GOVERNOR,

CENTRAL BANK OF PAPUA NEW GUINEA

Second Defendant

ELIZABETH GENIA, ASSISTANT GOVERNOR,

CENTRAL BANK OF PAPUA NEW GUINEA

Third Defendant

BRUCE KITCHEN, FACILITIES & PROPERTY MANAGER,

CENTRAL BANK OF PAPUA NEW GUINEA

Fourth Defendant

PATRICK KWIWA, HUMAN RESOURCES MANAGER,

CENTRAL BANK OF PAPUA NEW GUINEA

Fifth Defendant

HITOLO GALAMO, HUMAN RESOURCES OFFICER,

CENTRAL BANK OF PAPUA NEW GUINEA

Sixth Defendant

MAURI SERE, HUMAN RESOURCES OFFICER,

CENTRAL BANK OF PAPUA NEW GUINEA

Seventh Defendant

NAOMI KEDEA, HUMAN RESOURCES CONSULTANT,

CENTRAL BANK OF PAPUA NEW GUINEA

Eighth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Ninth Defendant

Waigani: Cannings J

2019: 1, 23 November,

2020: 9 January

HUMAN RIGHTS – application to contracts of employment – Constitution, Sections 36 (freedom from inhuman treatment); 48 (freedom of employment); 51 (freedom of information); 59 (principles of natural justice).

LAW OF EMPLOYMENT – six-month probation period under written contract of employment – termination of contract – whether contract lawfully terminated.

The plaintiff was employed by a statutory authority as security services manager under a written contract of employment, subject to successful completion of a six-month probation period. At the end of that period, the authority notified the plaintiff that it would not confirm him to a permanent position, and terminated the contract of employment. The plaintiff sued the authority and seven of its officers and the State, claiming damages for breaches of human rights. The plaintiff claimed that his performance was of a high standard and his employment was terminated without good cause, maliciously. He claimed that the termination of his employment was unceremonious and wrongful; that there had been continuous interference by some defendants in the performance of his duties, amounting to an abuse of the contract of employment; that he had been penalised for exposing gross abuse of powers and conflict of interests in the authority; that the manner of his abrupt termination had caused him serious stress and anxiety; and that the malicious conduct of the defendants had restricted his further employment opportunities. The plaintiff claimed that the defendants breached his human rights under the Constitution, Sections 36(freedom from inhuman treatment); 48(freedom of employment); 51 (freedom of information) and 59(principles of natural justice) and were liable in damages. The defendants denied all allegations of malicious conduct and impropriety, and argued that no cause of action for breach of human rights had been established. A trial was conducted on the issue of liability.

Held:

(1) Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment.

(2) It is not generally the role of the Court in a case of alleged wrongful dismissal of an employee to determine on the merits of the case whether the decision to terminate employment was justified.

(3) The plaintiff failed to prove that the decision to regard his probation as unsuccessful and to not confirm his employment was motivated by malice or personal animosity to him due to the performance of his duties or to his exposure of suspicious or allegedly corrupt activities within the authority.

(4) The plaintiff failed to prove that there had been any breach by the defendants of his human rights, as he was not dealt with inhumanely, was not denied his freedom of choice of employment or his right to freedom of information and was not dealt with procedurally unfairly.

(5) The contract of employment was lawfully terminated in accordance with the term that conferred a wide discretion on the employer, at the end of the period of probation, whether to confirm the plaintiff to the position.

(6) The plaintiff failed to establish a cause of action for breach of human rights and the proceedings were dismissed, subject to an order that the defendants pay the plaintiff his final entitlements, without deduction for or in respect of anything claimed to be owed to it by the plaintiff, within 14 days. The parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Apolonia Steven v Ram KC (2016) N6577

Ayleen Bure v Robert Kapo (2005) N2902

Baisom Konori v Jant Ltd (2015) N5868

Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290

Bernbert Toa v Ly Cuong-Long (2008) N3471

Jimmy Malai v PNG Teachers Association [1992] PNGLR 568

Joe Kala v New Britain Palm Oil Limited (2007) N3125

Margaret Singadan v Bruce S Telfer (2018) N7072

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Podas v Divine Word University (2011) N4395

Vere Kilao v Bernard Tiau (2007) N5000

Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124

TRIAL

This was a wrongful dismissal action in which the plaintiff claimed damages for breach of human rights.

Counsel

V V Kapigeno, the Plaintiff, in person

I Guba & W Mai, for the First to Eighth Defendants

J Nickson, for the Ninth Defendant

9th January, 2020

1. CANNINGS J: This is a trial of a wrongful dismissal action in which the plaintiff, Kapi Valentine Kapigeno, claims damages for breach of human rights against his former employer, the Bank of Papua New Guinea (the Central Bank, the first defendant), the Governor of the Bank (the second defendant) and various other officers (the third to eighth defendants) and the State (ninth defendant).

2. The plaintiff was employed by the Bank as security services manager on 16 July 2018, under a written contract of employment, subject to successful completion of a six-month probation period. At the end of that period, the Governor, in a letter dated 25 January 2019, notified the plaintiff that the Bank would not confirm him to a permanent position as his working and management style was not in conformity with the Bank’s values and mission statement, and terminated the contract of employment.

3. The plaintiff claims that his performance was of a high standard and his employment was terminated without good cause, maliciously, due to (a) his investigation and exposure of suspicious and corrupt or incompetent breakdowns in internal security protocols and external security contract arrangements and (b) other measures he had introduced in his time in the job, which posed a threat to other personnel.

4. He claims that:

· the termination of his employment was unceremonious and wrongful;

· there was continuous interference by the defendants in the performance of his duties, amounting to an abuse of the contract of employment;

· he was penalised for exposing gross abuse of powers and conflict of interests in the Bank;

· the manner of his abrupt termination had caused him serious stress and anxiety;

· the malicious conduct of the defendants had restricted his further employment opportunities; and

· the defendants have not paid his final entitlements.

5. The plaintiff argues that the defendants therefore breached his human rights under the Constitution, Sections 36(freedom from inhuman treatment), 48(freedom of employment), 51 (freedom of information) and 59(principles of natural justice). He seeks general damages for breaches of human rights plus K12.8 million damages for unpaid contractual entitlements for the balance of his productive working life plus medical costs of K35,000.00 for himself and K150,000.00 in respect of his mother’s medical treatment. This was a trial on the issue of liability only.

6. The defendants deny all allegations of malicious conduct and impropriety, and argue that no cause of action for breach of human rights has been established. They agree that the plaintiff has not been paid his final entitlements; that is because he has refused to return a mobile phone and a camera, the property of the Bank, that are still in his possession.

ISSUES

7. The central issue is whether the plaintiff has proven that...