Michael Pundari v Niolam Security Limited (2011) SC1123

• Jurisdiction: Papua New Guinea
• Judge: Davani J, Cannings J, Yagi J
• Judgment Date: 02 September 2011
• Court: Supreme Court
• Citation: (2011) SC1123
• Docket Number: SCA NO 73 0F 2009
• Year: 2011
• Judgement Number: SC1123

Full Title: SCA NO 73 0F 2009; Michael Pundari v Niolam Security Limited (2011) SC1123

Supreme Court: Davani J, Cannings J, Yagi J

Judgment Delivered: 2 September 2011

SC1123

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 73 0F 2009

MICHAEL PUNDARI

Appellant

V

NIOLAM SECURITY LIMITED

Respondent

Waigani: Davani J, Cannings J, Yagi J

2011: 27 June, 2 September

PRACTICE AND PROCEDURE – whether document tendered by a party at trial must be pleaded before being admitted into evidence

LAW OF EMPLOYMENT – written contract of employment – whether the court may look at extrinsic materials to ascertain meaning of terms of contract – wrongful dismissal: circumstances in which written contract of employment confers a right to be heard on an employee prior to dismissal

The appellant commenced proceedings in the National Court, claiming damages for wrongful dismissal against the respondent, his former employer. In the course of the trial the appellant tendered in evidence a copy of the respondent’s operation procedures manual, which, he claimed, stated that all of the respondent’s employees would be given a right to be heard if any allegations were raised against them, prior to dismissal. The trial judge refused to admit the manual into evidence as it was not included in the pleadings and it was extrinsic evidence which was not allowed to add to or subtract from the written contract of employment. The National Court concluded that the appellant’s contract had been terminated for good cause, that the respondent was under no obligation to give a right to be heard to the appellant prior to terminating his employment and that the respondent was under no obligation to give reasons for termination of employment. The appellant appealed against the whole of the judgment on nine grounds.

Held:

(1) Per Cannings J and Yagi J; Davani J dissenting: the trial judge erred by refusing to admit the operation procedures manual into evidence as the proposition that the appellant had a right to be heard, which he was denied, prior to termination of employment, had been sufficiently pleaded and the purpose of tendering the document was to adduce evidence in support of that proposition and it involved too rigid an interpretation of the principle in Curtain Bros (Qld) Ltd v The State to say that reference to any extrinsic materials was impermissible.

(2) Per Cannings J and Yagi J; Davani J dissenting: as there was evidence at the trial that the operation procedures manual stated that all employees would have a right to be heard, the right to be heard was incorporated as a term of the contract of employment, which was breached when the respondent terminated the appellant’s employment without giving him a right to be heard. Consequently the appellant had been wrongfully dismissed and the trial judge’s finding to the contrary was made in error and should be quashed and substituted with an order that liability was established against the respondent and the proceedings should be remitted to the National Court for trial on the relief sought in the statement of claim.

(3) Per Davani J: the operation procedures manual was not properly brought into evidence because it was not pleaded in the statement of claim. The appellant had only pleaded breaches of the contract of employment. The appellant had the benefit of the services of a lawyer to discover the document but failed to do so. If the appellant relied on breaches of the operation procedures manual, he should have pleaded it. The trial judge was correct in not admitting it into evidence. The appeal is dismissed and costs awarded to the respondent.

(4) By majority, the appeal was allowed, with costs, and the proceedings remitted to the National Court for trial on the relief sought in the statement of claim.

Cases cited

Papua New Guinea Cases

The following cases are cited in the judgment:

Ayleen Bure v Robert Kapo (2005) N2902

Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285

Ereman Ragi & Ors v Joseph Maingu (1994) SC459

Igiseng Investments Limited v Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2003) N2498

Jimmy Malai v Papua New Guinea Teachers Association [1992] PNGLR 568

Karava v IPA (1999) N1805

Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg, Valentine Kambori & The State (2006) N3050

Kumar v Wama [1993] PNGLR 38

Michael Pundari v Niolam Security Limited (2009) N3738

MVIT v James Pupune [1993] PNGLR 370

MVIT v John Etape [1994] PNGLR 596

Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain & Anor (1999) SC623

New Britain Oil Palm Limited v Vitus Sukuramu (2008) SC946

Pama Anio v Aho Baliki (2004) N2719

Papua Club Inc v Nusuam Holdings Ltd (2005) SC812

Paul John v Gerd Lindhardt & Servicom Pty Ltd (1999) N1938

PNGBC v Jeff Tole (2002) SC694

Porgera Joint Venture v Robin Kami (2010) SC1060

Rage Augerea v Bank of South Pacific Limited (2009) SC869

Robert Kapo v Ayleen Bure and 4 Ors, SCA 18

Steamships v Joel [1991] PNGLR 133

Susan Love (substitute for Fabian Love) Deceased v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006, 03.09.10

Teio Raka Ila v Wilson Kamit & Anor (2002) N2291

Tony David Raim v Simon Korua (2010) SC1062

Ume More v University of Papua New Guinea [1985] PNGLR 401

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

Willie Joy v Kerowara Logging Company Limited

Overseas Cases

Boyo v London Borough of Lambeth [1995] 1RLR 50AC (1980) ICRC 755

Gunton v London Borough of Richmond-upon-Thames [1980] 3 All ER 577

M Vasudevan Pillai v Singapore City Council (1968) 1WLR 1278

APPEAL

This was an appeal against a decision of the National Court to dismiss an action for wrongful dismissal.

Counsel

D Steven, for the appellant

A Mana, for the respondent

2 September, 2011

1. DAVANI J: Before the Court is a Notice of Appeal filed by Stevens Lawyers for and on behalf of the appellant on 1 July 2009. There are several grounds of appeal which I summarise as follows:

(i) The trial judge erred when he refused to admit into evidence the respondent’s Operation Procedures Manual (‘OPM’) when the relevance and the right to introduce the OPM was permitted and supported by relevant pleadings.

(ii) The Court erred when it relied on Curtain Bros (Queensland) Ltd v The State [1993] PNGLR 285, in refusing to introduce the OPM into evidence.

(iii) The Court erred when it refused to admit into evidence the OPM because the said document is relevant in determining the issue of intention in the employment contract.

(iv) The Court erred when it held that the principles of minimum payments stipulated in the OPM were not an implied term of the employment contract.

(v) The Court erred when it failed to interpret clause 10 of the appellant’s employment contract where the wording of clause 10 itself was unclear and the notice of termination dated 18 July 2005 did not clearly state the grounds of termination as listed in clause 10 of the employment contract.

(vi) The Court erred when it held that the appellant breached clause 10 of the employment contract against all evidence which were that:

- The decision to terminate the appellant was made by individuals rather than by the Board of Directors, in breach of clause 10 of the employment contract.

- There was evidence to refute allegations of financial misconduct.

- There was no evidence to substantiate claims in relation to the respondent’s corporate image.

- Placing too much weight on inconsistent evidence.

(vii) The Court took into account irrelevant considerations.

(viii) The Court erred in its findings on quantum when it held that the appellant was entitled to only one month’s notice in repatriation expenses.

(ix) The Court erred when it held that the appellant did not mitigate his loss.

2. The appellant seeks the following orders:

(i) The appeal be allowed.

(ii) The National Court’s decision be quashed.

(iii) The matter be remitted to the National Court for a rehearing of the plaintiff’s claim.

(iv) Alternatively, that the Supreme Court substitute its own findings that the appellant was wrongly terminated and to set the matter down for hearing on the assessment of damages.

Background facts

3. The trial judge’s decision of 22 May 2009 at Kokopo, was made in National Court proceedings WS 1106 of 2005.

4. The appellant was employed as a General Manager of the respondent company under a written Contract of Employment. He commenced his employment with the respondent company on 23 January 2003. His Contract of Employment ran for two years and was later renewed on 20 January 2005 for a further three years, which would have expired on 20 January 2008. The appellant was summarily dismissed on 18 July 2005 by written letter of even date. He commenced proceedings by filing a Writ of Summons on 20 July 2005 claiming damages for alleged wrongful termination. The respondent’s reasons for termination as stated in the respondent’s letter to him of 18 July 2005, and which in summary are:

(i) ...