Peter Pama v Chris Gens trading as Kanagio Security Services (2020) N8358
| Jurisdiction | Papua New Guinea |
| Judge | Narokobi J |
| Judgment Date | 11 June 2020 |
| Court | National Court |
| Citation | (2020) N8358 |
| Docket Number | WS 682 of 2018 |
| Year | 2020 |
| Judgement Number | N8358 |
Full Title: WS 682 of 2018; Peter Pama v Chris Gens trading as Kanagio Security Services (2020) N8358
National Court: Narokobi J
Judgment Delivered: 11 June 2020
N8358
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 682 OF 2018
BETWEEN:
PETER PAMA
Plaintiff
AND:
CHRIS GENS trading as KANAGIO SECURITY SERVICES
Defendant
Madang: Narokobi J
2020: 22nd & 25th May, 11th June
LAW OF EMPLOYMENT – constructive dismissal – whether the employer has engaged in a course of conduct with the deliberate and dominant purpose of coercing the employee to resign.
PRACTICE AND PROCEDURE – pleadings and proof – Plaintiff under duty to plead and prove his damages – Failure to – no award for damages.
HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether an employer’s act of terminating an employee’s employment was in the circumstances harsh or oppressive or otherwise not reasonably justifiable.
The Plaintiff, a former employee of the Defendant claims that he was unlawfully terminated and further claimed breach of his rights under s 41 of the Constitution.
Held:
(1) In the circumstances, the Plaintiff was constructively terminated.
(2) The pleadings did not sufficiently plead claim for final entitlements to be entitled to an award of any damages.
(3) The applicant adduced credible evidence on the issue of breach of s 41 of the Constitution. The Defendant failed to provide evidence to counter the Plaintiffs claim that he was sworn at, led to believe that he would be re-employed and failed to respond to the letters from the Department of Labour on his final entitlements.
(4) The actions of the Defendant were not reasonably justifiable and therefore unlawful, amounting to a breach of the applicant’s human rights under Section 41 of the Constitution.
(5) The Plaintiff established a cause of action for breach of human rights and was entitled to damages.
Cases Cited:
The following cases are cited in the judgment:
Bar v Kora (2008) N3290
Bernard v Marshall (2015) N5850
Malai v PNGTA [1992] PNGLR 568
New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946)
Okona Meten v Mamu (2019) N7668
PNGBC v Jeff Tole (2002) SC 694
RecksRuhuwamo v PNG Ports Corporation Ltd (2019) N8021
Simon v Koisen (2018) N7075
Soki v Kanglean (2019) N7860
Timothy Mong v George Doa (1997) N1540
Tony Charles Kerowa v Arnold Harriman (2017) N6940
Counsel:
Mr. B. Wak, for the Plaintiff
Mr. J. Lai, for the Defendant
RULING
11thJune, 2020
1. NAROKOBI, J: This is the court’s decision after a trial on liability for payment of damages for unlawful termination and breach of the Plaintiff’s rights under s 41 of the Constitution.
A BACKGROUND
2. This proceeding was filed on 2 August 2019 by the Plaintiff claiming that he was employed by the Defendant security company as a security guard commencing on 6 May 2017 to 25 April 2018, when he was unlawfully terminated.
3. The Defendants deny the claim and have filed a Defence.
4. The trial proceeded by way affidavits. Affidavits were tendered by consent on 22 May 2020 and submissions were made on 25 May 2020.
5. Like an archaeologist given pieces of evidence of events that happened some time ago and would have to reconstruct the story of how humans lived in a particular locality, I am placed in a similar situation. Based on the stories that both sides have told, I must work out what actually transpired. The real story will never be told. I have information that both sides have made a deliberate decision to tender, and I must, based on the laws of evidence and my understanding of an urban Papua New Guinean society, construct the story and confer an appropriate legal consequence based on that story as I see it.
B PLAINTIFF’S CONTENTION
6. The Plaintiffs cause of action is founded on unlawful termination and breach of constitutional rights.
1) Plaintiff’s Statement of Claim
7. In the Statement of Claim, the Plaintiff claims at paragraph 2, that he was employed by the Defendant as a security guard commencing on 6 May 2017 and he ceased employment on 25 April 2018.
8. At paragraph 3, the Plaintiff alleges that on 25 April 2020 he was unlawfully terminated by the Defendant without any lawful justification or legal basis. He then approached the Defendant to pay him his final entitlements, but he refused to pay him any money (paragraph 4 of the Statement of Claim).
9. After unsuccessfully checking with the Defendant, the Plaintiff then approached the Labour Department. With the information he provided to them by the Plaintiff, the Labour Department made a calculation for outstanding entitlements for K12,480.12 and sent itin a letter dated 02July 2018. Although the Defendant were then asked to respond to the claim, he refused to either comply with the notice or to respond with contrary calculations(paragraph 8, Statement of Claim).
10. Despite numerous follow ups, the Defendant has not responded positively to the letter from the Labour Department.
11. At paragraph 10, the Plaintiff says that in the circumstances, he was treated in a manner that was unfair, harsh and oppressive contrary to s 41 of the Constitution.
12. In the light of his unlawful termination and the manner he was treated, the plaintiff claims the following relief:
· A judgement sum of K12,480.12;
· General damages for pain and suffering to be assessed;
· An award of damages for breach of constitutional rights under sections 57 and 58 of the Constitution;
· Special damages;
· Interests, costs and any other orders the court deems fit and proper.
2) Plaintiff’s Evidence
13. In support of his claim, the Plaintiff relied on his own affidavit sworn on 24 February 2020 and filed on 1 March 2020. Mr Pama says the following in his affidavit, from paragraphs two (2) to 13.
14. Mr Pama is a 63 years old male from Tari, Hela Province and resides at Humandi Settlement, Madang, Madang Province. He started work with the Defendant, Chris Gens trading as Kanagio Security Services on 6 May 2017.
15. On 25 May 2018, the Defendant removed all his belongings and put them outside of the company premises. He swore at him and told him not to destroy any of his property and fight him back. If he did, he would pay him K1million for the damages. He told him to put all his belongings in his car and he dropped him off at Tales Street, Newton, Madang, Madang Province.
16. Mr Pama says that at Tales Street, he was told to wait for weeks and after that the Defendant would come and get him after two weeks. After two weeks, since he did not come to get him, he went to check the Defendant, but was told that there was no work.
17. After being informed that there was no work, he asked for his outstanding entitlements, but the Defendant told him that there was no outstanding entitlements. He was not given any termination notice or provided reasons for not continuing to work.
18. The Plaintiff then lodged a complaint with the Labour Department, following which the Department issued a letter to the Defendant, dated 2 July 2018, which he ignored. A sum of K12,480.00 was calculated as due and owing to the Plaintiff. That letter states that the Plaintiff’s date of termination was 25 April 2018. A follow up letter dated 6 March 2018 from his lawyer, also went unanswered. That letter states that his termination date was 25 May 2018.
19. The Plaintiff says that these actions amounted to unlawful termination and he was not paid his lawful entitlements.
3) Plaintiff’s submission on the law
20. The Plaintiff’s main legal argument was that the required period of notice under the Employment Act, ss 34 and 36 were not complied with.
21. In the Plaintiff’s submission, he was employed from 6 May 2017 to 25 April 2018, and therefore he was employed for a year and should have been given two weeks’ notice under s 34(4)(c) of the Employment Act 1978.
22. In the Plaintiff’s contention, none of the grounds listed in s 36 arose to warrant summary dismissal or were put to the Plaintiff as constituting his summary termination. The Plaintiff relies on the authority of
23. Furthermore, the Plaintiff also submits that his right to s 41 of the Constitution was breached. The Plaintiff says that the circumstances surrounding his removal from employment amount to breach of s 41 of the Constitution in that they were unfair and unlawful. For this ground the Plaintiff relies on the following cases – Simon v Koisen (2018) N7075
C DEFENDANT’S CONTENTION
24. The Defendant has filed its Defence, essentially disputing the factual basis giving rise to the claim alleged by the Plaintiff.
1) Defendant’s Defence
25. The Defendant’s defence as contained in the Defence filed on 17 September 2019 is as follows.
26. Firstly, he says that the Plaintiff is not his employee.
27. Secondly, he says that the Plaintiff did not approach him to have his final entitlements paid.
28. Thirdly he says...
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