Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain and The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Injia J, Sawong J
• Judgment Date: 02 November 1999
• Court: Supreme Court
• Citation: (1999) SC623
• Year: 1999
• Judgement Number: SC623

Supreme Court: Woods J, Injia J, Sawong J

Judgment Delivered: 2 November 1999

SC 623

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 51 OF 1999

BETWEEN:

NAZEL WALLY ZANEPA — Appellant

AND:

ELLISON KAIVOVO — First Respondent

AND:

DEPT OF EAST NEW BRITAIN — Second Respondent

AND:

THE STATE — Third Respondent

Waigani: Woods, Injia, Sawong JJ

1999: 24 August, 2 November

Employment — Terms — Termination — measure of damages and entitlements — reasonable notice — Public Servant — Public Service (Management) Act — Employment Act.

P Dowa for the Appellant

C Makail for the Respondents

29 October 1999

WOODS & SAWONG, JJ: The appellant is appealing against the judgement of Akuram J given in Mount Hagen on the 7th May 1999 on a claim by the appellant for damages for wrongful termination of employment.

The claim was based on the termination of the appellant as the Provincial Town Planner in East New Britain in October 1994. The claim was for salary and entitlements during the period from October 1994 until June 1996 when the Plaintiff obtained new employment, although at a claimed reduced salary, as Provincial Town Planner in the Department of Western Highlands.

The trial judge disallowed the claim for reduced salary. For loss of salary the trial judge only allowed 4 weeks in lieu of notice based in accordance with the provision of section 33 of the Employment Act Chapter 373. The trial judge disallowed the claims for recreation leave entitlements, loss of POSF savings, furlough leave entitlements, loss of family car, loss of claim over a Government house. The trial judge assessed a sum for frustration and distress.

The grounds of appeal relate to each of the items of salary and entitlements claimed.

However there is an overall point to be considered namely the measure of damages for unlawful termination. The appellant was employed by the Department of East New Britain and was thus a Public Servant. There was no evidence that he had any written contract of employment which took him out of the ordinary law or gave him any fixed term of employment or any permanent employment. It must therefore be deemed to be a contract of service for an unspecified period of time and under the terms of section 33 of the Employment Act Chapter 373 a party to such a contract of service may give notice to the other party of his intention to terminate the contract and the length of such notice in the case of the appellant who had been in the employment for over 5 years was 4 weeks notice. The trial judge referred to the case of Ereman Ragi & The POSF Board v Maingu Unreported SC 459, and found that this period of notice was relevant in this case and assessed the damages on the basis of the 4 weeks salary in lieu of notice.

On the loss of reduced salary the trial judge found that the evidence before him did not show that his new position had any increased salary from the previous salary rather the figures showed his new salary was higher. However on the basis of the right to terminate on appropriate notice as referred to above then there can be no claim here. I find no errors in the trial judge's consideration of this claim.

The loss of salary is covered by the reference to the Employment Act Section 33 above. The law is as stated in the Ereman Ragi & Anor v Maingu case above referred to and we find no reason to deviate from that. It is submitted that as a permanent public servant the appellant is in a different situation than persons covered by the Employment Act and has

some sort of permanency by way of the Public Service Management Act. Whilst it may appear from Section 3(1)(b) of the Employment Act that public servants do not come under that Act because their employment comes under the Public Service (Management) Act, that Act does not then give them any more rights than under the Employment Act. What the Public Service Act gives is the right to air any grievance about their employment, to someone other than their immediate superior, but it does not take away the common law right to hire and fire, or the converse that the law does not force a reluctant employer to retain the services of an employee that it does not wish to continue relationships with. The Employment Act then comes in and gives an employee the minimum right to notice. We find that there is nothing in that Act which gives any rights or claims to permanency and thereby any consequent right to damages based on any other term than that referred to in the Employment Act. We therefore find there are no grounds to interfere with the principles propounded in the Ereman Ragi judgement and we therefore find no errors by the trial judge.

The claim for loss of recreational leave entitlements and POSF entitlements and furlough entitlements is covered by the ruling on the right to terminate under the Employment Act and we find no errors by the trial judge here.

We can find no basis for any entitlement for loss in relation to the opportunity to acquire a government house. This was merely an opportunity, if there was any subsisting agreement then that agreement would exist and give rights independent of any termination of employment. We find no errors in the trial judge's ruling here.

The claim in relation to the motor vehicle has nothing to do with the termination of employment. The fact that the appellant left his motor vehicle in Rabaul was a matter independent of the employment and the subsequent loss was because of the failure of the appellant to protect his property and was through no negligence or wrong attributable to the respondents. We find no errors by the trial judge here.

We find no errors by the trial judge and we dismiss the appeal with costs.

INJIA, J.: In this appeal, the grounds of appeal raise questions of mixed law and fact for which leave to appeal is not required, and of fact alone for which leave is required. We granted leave on those grounds pertaining to fact alone: Supreme Court Act, S.14. We then proceeded to hear arguments on the merits of the appeal.

This is an appeal against the trial judge's refusal to award damages for certain claims in respect of an action for wrongful dismissal brought by the Appellant against his former employer, the State (third respondent). The first respondent is the Administrator of the Department of East New Britain (second respondent). The second respondent is a department of the third respondent. Pursuant to provisions of the Wrongs (Miscellaneous Provisions) Act (Ch. No 297), the third respondent is vicariously liable for the wrongs committed by the first respondent in the course of his employment. The cause of action was founded on the first respondent's failure to comply with certain disciplinary procedures prescribed by the Public Service (Management) Act 1995 (hereinafter abbreviated PS(M) Act), in effecting his dismissal from the public service. As liability was not in issue at the trial because the appellant obtained default judgment against the respondents, the trial before the National Court was on assessment of damages only.

The grounds of appeal are:

(a) His Honour fell in error in dismissing the Appellant's claim for loss for reduced
salary in the sum of K5,080.00 against the weight of evidence.
(b) His Honour fell in error in holding that the Plaintiff was only entitled to 4
weeks salary when the evidence was clear that the period of loss was clearly
ascertainable.
(c) His Honour's decision to dismiss the whole claim for loss in salary was harsh
and oppressive in the circumstances.

(d) His Honour fell in error in dismissing the Plaintiff's claim for loss in
Recreation Leave Entitlements against the weight of evidence.
(e) His Honour fell in error in dismissing the claim for loss of POSF damages
against the weight of evidence.
(f) His Honour fell in error in dismissing the Plaintiff's claim for loss of Air Fares
against the weight of evidence.
(g) His Honour fell in error in dismissing the...