Paul Pora v Poliamba Limited (2008) N3582

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 22 August 2008
• Court: National Court
• Citation: (2008) N3582
• Docket Number: W.S.NO. 798 OF 2006
• Year: 2008
• Judgement Number: N3582

Full Title: W.S.NO. 798 OF 2006; Paul Pora v Poliamba Limited (2008) N3582

National Court: Lenalia J

Judgment Delivered: 22 August 2008

N3582

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S.NO. 798 OF 2006

BETWEEN:

PAUL PORA

Plaintiff

AND:

POLIAMBA LIMITED

Defendant

Kokopo: Lenalia; J.

2008: 25th July & 22nd August

LAW OF CONTRACT – Contract of Employment – Master and servant –

Written contract of employment – Contract of service – Termination of contract within probationary period – Contract specifically provided for three (3) months probation – Termination of contract on grounds of inability to perform to expected targets

CONTRACT – Written contract of employment – Construction of

documented contract of service– Contract providing of service – Period of contract – Five years after three (3) months probationary period – Contractual terms in writing – No evidence be allowed to add, subtract, qualify or vary written contract – Assessment of performance occurred within probation period.

CONTRACT – Construction of – Fair and liberal approach to as to give

effect to the agreement of the parties – Court can allow extrinsic evidence to construe invalidating clauses or terms implied by law or practice.

Cases cited:

Papua New Guinea Cases

Iambaki Okuk and The Independent State of Papua New Guinea [1980] PNGLR 274

Papua New Guinea Air Pilots Association v Director Civil Aviation and the National Airline Commission trading as Air Niuguni [1983] PNGLR 1 Steamships Trading Co. Ltd v Joel and Others [1991] PNGLR 133

Bruno Baiwan v University of Papua New Guinea [1995] PNGLR 18

Jimmy Malai v PNG Teachers Association [1991] PNGLR 116

Jimmy Malai v PNG Teachers Association [1992] PNGLR 568

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

Paddy Fagon v Negiso Distributors Pty Ltd (1999) N1900

Legu Vali v NCDC (2002) N2280

Fly River Provincial Government v Pioneer Health Services Limited (24.3.03) SC705

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

Overseas Cases:

Pym v Campbell (1856) 6 E. & B.370

Gillespie Bros. & Co v Cheney Eggar & Co [1896] 2 Q.B. 59

Bank of Australia v. Palmer [1897] AC 540

Bank of New Zealand v Simpson [1900] A.C.182

Reliance Marine Insurance v. Duder [1913] 1 KB 265

Jacobs v Batavia & General Plantations Trust Ltd [1924] 1 Ch.287

Tsang Chuen v. Li Po Kwai [1932] AC 715 at 727

O'Connor v. Hume [1954] 1 WLR 824.

Campbell Discount Co v Gall [1961] 1 Q.B.431

Held:

(1). Where there is a written contract, no extrinsic evidence should be

allowed or added to it unless a contract falls under well recognized exceptions in law. No evidence should be allowed to add, subtract, qualify or vary written contract.

(2) Assessment of performance occurred within probation period.

(3). Where a contract of employment provided for a three (3) months

probationary period which was not successfully completed, there was no obligation on the part of the Defendant to continue to employ the plaintiff.

(4). Termination of the contract of employment was lawful and within the probationary period.

Counsel:

Mr. J. Isaac, for the Plaintiff

Mr. P. Luben, for Defendant

22 August, 2008

1. LENALIA; J. On the 14th of June 2006, the plaintiff filed these proceedings claiming damages for wrongful termination and damages associated with his wrongful dismissal.

Background Facts

2. On 23rd of June 2005, the plaintiff was informed by a letter that the defendant company had accepted his application and he was to commence his employment with the defendant as an Estate Manager on 25th of that month. He did not commence on that date as his evidence shows that he formally began on either 18th or 23rd August 2005.

3. On 23rd November 2005, the plaintiff was served with an unsuccessful probation notice. On 30th of the same month, he was served with the letter of termination. (See letters “C” & “D” of plaintiff’s affidavit).

Evidence

4. The affidavit of the plaintiff contains the following evidence. The acceptance letter contained four (4) pages of the terms and conditions of his employment contract. The plaintiff’s base salary was fixed at K28, 500.00 per annum and was to be reviewed and increased to K34, 000.00 after successful completion of three months probationary period.

5. Other conditions included provision of accommodation with utilities provided by the defendant. On transport, if the plaintiff had to drive a company vehicle, he was required to comply with the company vehicle policy. On the superannuation scheme, he was to contribute 5% while the company would pay 7%. There was also provision for the company to pay 90% school fee subsidy for the plaintiff’s three children.

6. The contract also provided for leave, sick leave and compassionate leave entitlements with provision for Notice of termination and repatriation expenses. A specific aspect of the plaintiff’s contract was that, his salary was subject to an annual performance review which according to the company policies occurs in July of each year. In his case, the plaintiff was given three (3) months probationary period before any increase in his salary could be made.

7. In a letter dated 30th November 2005, the General Manager of the defendant company informed the plaintiff that, after reviewing his appeal and after having observed the key performance areas given him under the probationary period, he did not meet the expected target achievements as shown by the company records.

8. The plaintiff says that when he commenced working with the defendant on 18th of August 2005, he was posted to Nalik Estate with unclear roles and responsibilities because, another person, Mr. Michael Homier was already working there as an Estate Manager. The duty statement given him was labeled “Junior Estate Manager”. According to the plaintiff, the job description was of Divisional Manger. The plaintiff says this was a level below the Estate Manager which he says was contrary to the employment contract.

9. On the structure of the company, the plaintiff says, the general labourers report to the supervisors, from there to the Divisional Managers, from here to the Estate Managers then from there to the Field Managers who report to the General Manager. The plaintiff further states that, contrary to the initial terms of his employment contract as an Estate Manager, he was put on a Junior Estate Manager’s position to fit him in since the job descriptions were over-lapping to those of the Divisional Manager which he says were ambiguous and uncertain.

10. The plaintiff now says that, when he was given the unsuccessful probationary notice through the General Staff Order dated 23rd November 2005 he appealed against that decision. He says his appeal was heard on 2nd of December 2005. He says had he been employed as an Estate Manager, he would have performed well above board to achieve expected targets.

Defence evidence

11. The defendant simply denies liability and says that, the plaintiff’s termination was lawful because it occurred within the probationary period provided for in the contract. They filed certain reports as evidence to show that, the plaintiff did not perform to the expected standards at the end of which he was terminated.

Defence Submission

12. I thank both counsels for your written submissions. For the defendant, Mr. Luben submitted that there was no breach of the contract of employment because the plaintiff was terminated during the probationary period. They submit, the fact that there was a slight variation on placement of the plaintiff to a Junior Estate Manager did not affect the salary fixed and offered to the plaintiff in Item 4 of the contract of employment.

13. Counsel submitted that, there were reports on the plaintiff’s work performances which were unsatisfactory during the three months probation period which finally led to the plaintiff’s termination. On top of that, counsel submitted that, there is no way the plaintiff could claim for a salary of K34, 000.00 per annum as he did not perform to the expected achievement targets as he failed to perform in the three months probation period. They submit that, the evidence of the plaintiff does not establish their case on the balance of probabilities and the case should be dismissed with costs.

Plaintiff’s submission

14. Mr. Isaac of counsel for the plaintiff argued on the other hand that, the defendant breached the terms of the employment contract because such contract was terminated before expiration of the agreed termination date. They submit that due to this, the plaintiff is entitled the benefits he would have received for the balance of the contractual term. The written contract provided for a probationary period of three months and thereafter five (5) years after that.

15. Counsel submitted that the defendant made a unilateral decision to change the plaintiff’s job title from an Estate Manager to Junior Estate Manager without the consent of the plaintiff. They further submit that the reporting structure was also unilaterally altered by the defendant administration and that instead of reporting to the Field Manager, the plaintiff was directed to report to another Estate Manager. Part of their argument is that, the plaintiff’s responsibilities and duties were not discussed with the Field Manager Mr. Russell Hunt.

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