Pama Anio v Aho Baliki and Bank South Pacific (2004) N2719

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 12 November 2004
• Court: National Court
• Citation: (2004) N2719
• Year: 2004
• Judgement Number: N2719

Full Title: Pama Anio v Aho Baliki and Bank South Pacific (2004) N2719

National Court: Kandakasi J

Judgment Delivered: 12 November 2004

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 59 OF 2002

PAMA ANIO

Plaintiff

AND:

AHO BALIKI

First Defendant

AND:

BANK SOUTH PACIFIC

Second Defendant

WAIGANI: KANDAKASI, J.

2004: 12th November

EMPLOYMENT LAW – Written contract of employment – Terms of contract dictate the rights and duties of the parties to the exclusion of extrinsic evidence - Dismissal for cause but not disclosed at time of dismissal – Employer’s right to terminate without reasons – Employer could terminate without reason and provide one later – Discovery of employee facilitating a fraud against employer – Serious misconduct and breach of fiduciary duty – Instant dismissal warranted - Termination found lawful.

DAMAGES - Claim of unlawful dismissal – General damages and damage for distress and frustration - Plaintiff under obligation to plead with sufficient particulars and establish claim within terms of the written contract by appropriate evidence – Failure to do so – Effect of – No award of damages.

Papua New Guinea Cases Cited:

Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (17/12/03) N2498.

Tom B Gesa v. Bernard Kipit City Manager National Capital District Commission & NCDC (06/08/03) N2457.

Mathew Petrus Himsa and Napao Namane v. Richard Sikani, Commissioner of Correctional Services & The State (08/11/02) N2307.

Wilson Thompson v. Bernard Kipit & NCDC (11/10/04) N .

PNGBC v. Jeff Tole (27/09/02) SC694.

Legu Vagi v. National Capital District Commission (03/08/02) N2280.

Paddy Fagon v. Negiso Distributors Pty Ltd (10/06/99) N1900.

Nazel Wally Zanepa v. Ellison Kaivovo, & The State (02/11/99) SC623.

Ereman Ragi & The POSF Board v. Maingu [29/06/94] SC 459.

Leo Nuia v. The State (29/08/00) N1986.

Peter Aigilo v. Sir Mekere Morauta & Ors (15/06/01) N2102.

Nahau Rooney v. Forest Industries Council [1990] PNGLR 407.

Teio Raka Ila v. Wilson Kamit & The Bank of Papua New Guinea (11/10/02) N2291. The Supreme Court judgment in Post PNG Ltd v. Yama Security Services Ltd (unreported and unnumbered judgment delivered on 26th July 2001) in SCA 80 of 2000

Harding v. Teperoi Timbers [1988] PNGLR 128.

Naguwean v. The State [1992] PNGLR 367.

Overseas Cases Cited:

Lucy v. Commonwealth [1923] 33 CL R 229.

Commonwealth v. Amann Aviation Pty Ltd [1991] 66 A L JR 123.

Counsel:

L. Manua for the Plaintiff.

A. Mana for the Defendants.

12th November 2004

KANDAKASI, J.: The Plaintiff’s is claiming damages allegedly for wrongful dismissal of his employment contract with the defendant Bank (“the Bank”). He claims that, his termination was arbitrary and without cause or in breach of a contract of employment dated 20th October 1999 for a three years term (“the contract”), without prior notice and warning and was in breach of the Bank’s own Code of Conduct. He therefore claims that his measure of damages should be for the balance of his contract as well as a value of a house he purchased under a loan from the Bank. He is also claiming damages for distress and frustration.

The Bank denies the claim and says it dismissed the plaintiff for cause, namely accepting a commission to facilitate a fraud against it by a third party. As such, the termination was lawful. Further, the Bank says, its Code of Conduct was not part of the contract. Therefore, it was not bound to accord the plaintiff the staff discipline and or termination procedure setout in it. In the circumstances, it says the plaintiff is not entitled to any damages. Furthermore or in the alternative, it says, even if the termination was unlawful, it paid the plaintiff what was due to him upon termination and so therefore, there is no basis for the claim for damages.

These arguments demonstrate the issues for determination in this case. The main issues are thus:

1. Were the Bank’s staff Code of Conduct part of the contract between itself and the plaintiff?

2. Was the termination of the contract unlawful?

3. If the termination of the contract was unlawful, what are the plaintiff’s damages, if any?

The Relevant Evidence

The relevant evidence comes for the Plaintiff from his own affidavits sworn on 25th June 2002 and filed on the 28th June 2002. The Bank’s evidence comes from Ms. Aleena Bird’s affidavit sworn and filed on 4th November 2003.

Relevant Facts

From these evidences, the facts are mainly not in dispute. In October 1999, the plaintiff successfully applied for a job as Assistant Manager with the then Papua New Guinea Banking Corporation, now the Bank with its Multi Media section.

According to the plaintiff, the Bank gave to him during the course of his employment a Code of Conduct which he claims governed the Bank’s procedure for dealing with disputes and all disciplinary matters with its employees. The plaintiff claims that the Code of Conduct formed part of the terms and conditions of his employment with the Bank.

During the currency of his employment, the plaintiff applied for and the Bank granted a housing loan to the plaintiff under its staff housing loan scheme, to purchase a house at Allotment 13, Section 256, Hohola. The loan had a repayment period of up to 15 years, by which time, the plaintiff would retire.

Before October 2001, the plaintiff says he became suspicious of the activities of the Marketing Department and alerted the Management resulting in investigations. In October 2001, one of the Bank’s employees, a Duncan Smith, interviewed the plaintiff over his receipt of a sum of K100.00 from the Head of Marketing Department and about a bank account operated by the social club of the Marketing Department. The plaintiff informed Duncan Smith that, he was not aware of the bank account but confirmed receiving K100.00 from the Head of Marketing Department. He told Mr. Smith that, he thought the money was his Christmas bonus from the Bank and accepted it.

By letter dated 12th November 2001, the Bank under the hand of Mr. Aho Baliki, then Managing Director of the Bank, informed the plaintiff that, if there are any further breaches of the Code of Conduct, regardless of however minor it may be, that would form the basis for a termination of his employment. In the following month, December 24th 2001, the Bank terminated the plaintiff’s employment contract, without any reason but subsequently it claimed that the plaintiff committed a serious breach of his duties in that it facilitated a fraud against it in return for a commission. The termination ended the Contract 9 months short of the plaintiff’s full term of 3 years.

The plaintiff claims his termination was sudden and unexpected that it shocked and caused him distress because it came without a disciplinary charge, hearing him and a finding of wrong doing. He goes onto say, the fact that his termination came about on the eve of Christmas worsened the situation because, it disrupted his family’s Christmas celebration plans.

Since, his termination, the plaintiff says, he tried every opportunity to secure alternative employment with other banking and financial institutions without success. He has since fallen sick, lost his appetite to eat and overtaken by distress following his failure to secure a similar job on same or similar terms and conditions of employment. This, he says, was due to the way and the manner in which the Bank terminated his employment. Eventually, however, he managed to get a job with the National Newspaper as a Training Coordinator on a fortnightly salary of K600.00.

Further, prior to his termination, the Bank informed the plaintiff that on 13th November, his loan was in arrears and that he should repay the loan and enter into a non-staff housing loan arrangement whereby interest and repayment rates would increase. On 15th April 2002, the plaintiff informed the Bank that, he was earning K600.00 a fortnight only and that he would repay the arrears and loan bit by bit. By letter received by the plaintiff on 24th April 2002, the Bank asked him to provide an update of his finances. Five days later, the plaintiff on 29th April, asked the Bank to give him time to repay. However, on 4th June 2002, the plaintiff...