In the matter of an application for enforcement of human rights, Noel Sepol v Rex Harison – Supervisor Chef, Head Base, OM Holdings Limited and Jock Turner – Site Project Manager, Oil Min Holdings Limited and Fintan Lalor – Operations Manager, Oil Min Holdings Limited and Oil Min Holdings Limited (2020) N8263

• Jurisdiction: Papua New Guinea
• Judge: Tamate J
• Judgment Date: 16 March 2020
• Court: National Court
• Citation: (2020) N8263
• Docket Number: HRA NO. 88 OF 2018
• Year: 2020
• Judgement Number: N8263

Full Title: HRA NO. 88 OF 2018; In the matter of an application for enforcement of human rights, Noel Sepol v Rex Harison – Supervisor Chef, Head Base, OM Holdings Limited and Jock Turner – Site Project Manager, Oil Min Holdings Limited and Fintan Lalor – Operations Manager, Oil Min Holdings Limited and Oil Min Holdings Limited (2020) N8263

National Court: Tamate J

Judgment Delivered: 16 March 2020

N8263

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 88 OF 2018

IN THE MATTER of an Application for Enforcement of Human Rights

BETWEEN:

NOEL SEPOL

Plaintiff

AND

REX HARISON – SUPERVISOR CHEF, HEAD BASE, OM HOLDINGS LIMITED

First Defendant

AND

JOCK TURNER – SITE PROJECT MANAGER, OIL MIN HOLDINGS LIMITED

Second Defendant

AND

FINTAN LALOR – OPERATIONS MANAGER, OIL MIN HOLDINGS LIMITED

Third Defendant

AND

OIL MIN HOLDINGS LIMITED

Fourth Defendant

Waigani: Tamate J

2018: 9 November

2020: 16th March

HUMAN RIGHTS– application for enforcement pursuant to Section 57 of the Constitution for breaches of rights under Sections 36, 41 and 48 of the Constitution – whether termination without notice lawful – Section 36 of Employment Act.

PRACTICE AND PROCEDURE - Application to dismiss proceedings – Order 12 Rule 40 of National Court Rules – failure to disclose a reasonable cause of action, for being frivolous and vexatious and for being an abuse of the Court process.

Facts

The Plaintiff had instituted a HRA proceedings against the defendants for breach of his rights to freedom of employment. He claimed that the Defendants had failed to give him any reason for his termination of employment or accord him the principles of natural justice to be heard. As a result of this his rights under Sections 36, 41 and 48 of the Constitution had been breached. He has therefore filed this proceedings seeking damages and compensation and other remedies for those breaches.

Held:

(1) Pursuant to Order 12 Rule 40 NCR the application to dismiss proceedings is granted for the reason that the plaintiff has not disclosed a reasonable cause of action.

(2) Section 48 of the Constitution only gives a person a freedom of choice of employment and not a right of employment either short term or on a permanent tenure or term of years.

Cases Cited:

Anderson Agiru v Electoral Commission (2002) SC687.

In Rooney v Forest Industries Council of PNG [1990] PNGLR 407

Island Cargo Service Ltd v Emmanuel Abau [1997] PNGLR 469

Malai v PNG Teachers’ Association [1992] PNGLR 568

New Britain Oil Palm Ltd &Ors v Vitus Sukuramu (2008) SC 946

PNG Forest Products Pty Ltd & Another v The State & Genia [1992] PNGLR 85

PNG Forests Products Ltd and Inchcape Berhad v Minister for Forest and the State [1992] PNGLR 85

Ronnie Wabia v BP Exploration and Operating Ltd [1998] PNGLR 8

Steamships Trading Company Ltd v Joel [1991] PNGLR 568

Talin v PNG Water Board [1992] PNGLR 211

Counsel:

Samson Tolo, for the Plaintiff

Austin Edo, for the Defendants

16th March, 2020

1. TAMATE, J: This is an application by the defendants by way of a notice of motion (NOM) seeking orders to dismiss the entire proceedings pursuant to Order 12 Rule 40 (1) of the National Court Rules (NCR).

2. The defendants have relied on the affidavits of one Fintan Lalor filed on the 11th October, 2018 in support of their application. They claim that the Plaintiff does not have a reasonable cause of action and that the proceedings is frivolous and vexatious and being an abuse of the Court process.

Background of the case

3. The Plaintiff is a male adult and comes from the Southern Highlands Province. He is a trained chef from the Asia Pacific Technical College in Fiji and has a certificate in commercial cookery. He was employed in 2016 by the 4th Defendant at its project site at Baimuru in the Gulf Province as a chef and was paid a salary of K1, 120.00 fortnightly. He claims he was terminated without notice or any charges in April, 2017. He says he was never given any reason for his termination and was kept in suspense up to the time of filing this proceedings on 25th April, 2018. He claims he had been treated inhumanely by the defendants therefore breaching his rights under sections 36, 41 and 48 of the Constitution. He claims the defendants had breached the Employment Act when they failed to give any notice of his charge and termination.

The Application by Respondents

4. The Defendants have applied for the dismissal of this proceedings under Order 12 Rule 40 (1) of the NCR for failure by the Plaintiff to disclose a reasonable cause of action and that the proceedings is frivolous and vexatious and an abuse of the Court process. They claim that there is no breach of any of the rights under the Constitution that he has referred to in his Statement of claim.

ISSUES

5. The issues for determination are:

(1) Can this proceedings be dismissed in its entirety pursuant to Order 12 Rule 40 of the National Court Rules for failure by Plaintiff to disclose a reasonable cause of action?

(2) Was the Plaintiff’s termination of employment without notice unlawful and in breach of Section 48 of the Constitution?

Law

6. Order 12 Rule 40 of the National Court Rules:

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

(a) reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

(d) the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

Case Laws

7. It is trite law that the Constitutional right to be heard cannot lightly be set side.

8. The Plaintiff should not be driven from the judgment seat unless the case is unarguable: PNG Forest Products Pty Ltd & Another v The State & Genia [1992] PNGLR 85, Anderson Agiru v Electoral Commission (2002) SC687.

9. The Rules also provide a safe guard against abuse of the Court’s process by persons filing cases that are frivolous or vexatious. The Court has an inherent power and a duty to protect itself from such claims: Ronnie Wabia v BP Exploration and Operating Ltd [1998] Sevua, J, PNG Forests Products Ltd and Inchcape Berhad v Minister for Forest and the State [1992] PNGLR 85, Sheehan, J

EVIDENCE

Defendant’s Case

10. The Defendants have relied on the affidavit of one Fintan Lalor filed on 11th October, 2018. He is the Logistics and Operation Manager for the 4th Defendant who is O.M Holding Ltd (“OM Holdings”).

11. He had deposed in his affidavit that Plaintiff commenced employment with the 4th Defendant on 22nd September 2016 as an assistant Chef for the Kerema Hospital Catering Facility. He was then transferred to the project site at HERD BASE, in Gulf Province.

12. During commencement of employment Plaintiff signed his employment papers with HR Section regarding his personal particulars and other necessary information. He was under oral contract of employment and was paid at a rate of K80.00 per day spent on site. He was on a fly-in, fly-out rotation arrangement.

13. During the course of his employment, O.M Holding received reports of the Plaintiff’s work performance and attitude. There were reports about Plaintiff swearing in the kitchen area and lying to his supervisors about temperatures of hot dishes, and insubordination to his supervisors and showing disrespect to his colleagues and clients.There was evidence of poor attitude and conduct to work.

14. There were emails by JACK TURNER, O.M Holding and QA Manager to his colleagues about Plaintiff’s work attitude and conduct. As a result Plaintiff was eventually terminated by O.M Holding on the 16th of April 2017 just about under 7 months of employment.

15. Mr. Fintan Lalor had stated that an attempt was made to have plaintiff acknowledge receipt of his termination by signing his Disciplinary Action Form, however Plaintiff refused to sign.

16. After his termination, Plaintiff was provided transport home to Port Moresby and from airport to his home. Thereafter, he applied for other job positions with 4th Defendant but could not be considered as a result of his past conduct and work attitude.

17. The defendants have submitted that the Plaintiff does not have a reasonable cause of action under this human rights proceedings. There is no breach of any of his human rights which he has pleaded in his statement of claim. This is a case involving termination of employment and should be pursued through the normal civil proceedings.

18. They have further submitted that the termination of employment was lawful and that it was not necessary for them to give reasons or notice for the termination or employment. The defendants summarily terminated the employment as a result of poor performance, swearing in work place and acting in insubordination.

19. The plaintiff was on an oral contract of employment without any specific period of employment. He was not treated inhumanely, harshly or oppressively. The defendants tried to serve him a notice for him to sign and acknowledge regarding the...