The University of Papua New Guinea and the Chief Security - Mike Moir Bussy and Operation Commander—Thomas Nigaya v Jerry Duwaino (2011) SC1119

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Gabi & Kawi JJ
• Judgment Date: 02 August 2011
• Citation: (2011) SC1119
• Docket Number: SCA NO 112 OF 2009
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1119

Full Title: SCA NO 112 OF 2009; The University of Papua New Guinea and the Chief Security - Mike Moir Bussy and Operation Commander—Thomas Nigaya v Jerry Duwaino (2011) SC1119

Supreme Court: Injia CJ, Gabi & Kawi JJ

Judgment Delivered: 2 August 2011

SC1119

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 112 OF 2009

THE UNIVERSITY OF PAPUA NEW GUINEA

First Appellant

AND

THE CHIEF SECURITY - MIKE MOIR BUSSY

Second Appellant

AND

OPERATION COMMANDER – THOMAS NIGAYA

Third Appellant

AND

JERRY DUWAINO

Respondent

Waigani: Injia CJ, Gabi & Kawi JJ

2011 : 2nd August

SUPREME COURT – CIVIL APPEAL – Appeal from National Court decision on appeal from District Court – Wrongful dismissal of employee – District Court award of damages not supported by finding on liability against employer – National Court made findings on liability, assessed and awarded damages with interest – Error of law –Substantial miscarriage of justice – Appeal upheld and National Court decision quashed – Decision of District Court quashed and matter remitted to District Court for rehearing.

Facts:

The respondent, a security guard employed by the University of Papua New Guinea, instituted legal proceedings, against the University, seeking to be reinstated to his former position. The District Court without making a determination as to liability, proceeded to award him damages using calculations made by the Department of Labour and Employment. The appellant contested both liability and damages in the District Court. On appeal, the National Court, confirmed the decision of the District Court. The National Court extended the award of damages to include compensation for pain, suffering and distress caused by the termination of employment. This was made after making a finding on liability. On appeal to the Supreme Court:

Held:

(1) Liability would have been attached to a finding of wrongful termination of the security employment contract. There was no evidence before the District Court, to ground a cause of action in wrongful termination. Similarly there was no evidence on liability being determined before the National Court. In consequence thereof, both the District Court and subsequently the National Court could not have possibly made a determination on breach of employment contract and thereby award damages.

(2) The question of damages only arises following a determination as to liability. The objective of an award of damages is to put the injured party in the same position as he/she would have been in but for the injury suffered for which he is now getting compensation.

(3) Assuming that the claim for damages was properly before the Court, the onus was on the respondent/ complainant to prove the damages claimed. The plaintiff has an obligation to prove his losses with much certainty and particularity as is reasonable.

(4) It is not sufficient for a plaintiff to simply write down his alleged losses and then request the court to give him back those damages. The plaintiff has an obligation to prove those losses.

Cases Cited

Papua New Guinea cases

Bob Kol v The State (2010) N 3912.

Firman Mawa v Southern Highlands Provincial Government (2008) N3505

Jonathan Mangope Praia v The State (1995) N1343

Kui Valley Business Group v Kerry Wamugl (2009) N3667

Kolaip Palapi v Sergeant Poko (2001) N2274

Kopung Brothers Business Group v Sakwar Kasieng [1997] PNGLR 331

Martin Piaore v Ian Barr (2009) N3786

Paul and Grace Nari v The State (2004) N2769

Peter Goodenough –v- The State [2001] N2157

Ray Tese Pty Ltd –v- Syntex Australia Limited [1998] 1 Qd R 104

Stanely Magi Eremugo v Daniel Tande (2005) N2889

Yange Lagan v The State (1995) N1369

Yooken Pakilin v The State (2001) N2212

Overseas Cases

Bonham Carter –v- Hyden Park Hotel Ltd [1948] 64 TLR 17

Counsel

Ms C. Lari, for the Appellant

Respondent in Person

2 September, 2011

1. BY THE COURT: Background of appeal: The University of Papua New Guinea appealed against the decision of the National Court (“the Court”) given on the 23rd October 2009. The Court dealt with an appeal from the Port Moresby District Court (“the District Court”) which had made certain findings against the University in a wrongful dismissal case brought by the respondent.

2. In the proceedings before the District Court, the appellant contested the question of liability and damages. The District Court did not make any specific findings on liability against the appellant. The Court did not conduct a proper assessment of damages. In spite of this the District Court ordered judgment in favor of the respondent and awarded K10,000.00 in damages. Aggrieved by this decision, the appellant appealed the decision to the National Court.

3. The National Court in dismissing the appeal made findings on the question of liability. The Court confirmed the District Court’s decision to award damages and proceeded to re-asses and awarded damages in the sum of K9,000.00 in general damages with interest at K5, 544.00 plus costs at K500.00.

4. In relation to the question of liability, the Court said this:

“I do not consider that the learned magistrate erred by failing to consider the law relating to the right of the employer to hire and fire at will. In this case the University lacked the power to fire at will. What should have happened is that the operations commander or the chief of security should have put the allegations to Mr Duwaino in writing and asked him to show cause why he should not be terminated over the break and enter incident that he allegedly negligently allowed that to happen. Instead he was sacked virtually on the spot. It was clearly open to the learned magistrate to conclude that as a matter of law this was wrong: It was contrary to the implied terms of the contract of employment between the University and Mr Duwaino.”

5. The Court also said this:

“Damages were awarded in account of the failure to administer a right to be heard prior to termination. This is clear from the respondents statement of claim in the District Court. His complaint was that he was not given reasons, but that he was not given a right to be heard.”

6. In relation to damages, the Court said this:

“When an employee succeeds in proving that their employment has

been unlawfully terminated, they establish a cause of action in breach of contract. The employee is therefore entitled to damages if damages have been sought in their statement of claim – which is a remedy aimed at compensating them for the losses suffered as a result of the breach of contract. In any civil action, the purpose of an award of damages is to put the innocent party in the same position, as far as possible, they would have been in if the wrongdoer had not committed the wrongful act. It follows that the dismissed employee is to be compensated not only for wages that they have lost for the length of the notice period but also for pain and suffering and inconvenience caused to them by the employer’s unlawful act.”

7. The Court also took into account frustration and sufferings even though that category of damages was not specifically pleaded and pursued in the District Court. The Court said this:

“Loosing one’s job is invariably a dramatic and traumatic event in a person’s life, especially in PNG where jobs are scarce and many people other than the employee’s family are dependent on the income generated by the job. When a person is wrongfully – ie –unlawfully- dismissed, the pain and anguish are magnified. Such a person deserves an adequate award of damage to compensate them for injury to their livelihood and emotions and those of their dependants caused by the wrongful dismissal.”

Grounds of Appeal

8. The appellant relies on a total of eleven (11) grounds of appeal which are as follows:

a) The National Court erred in law and in fact in assuming that the Respondent’s employment contract attracted the same provisions of the National Public Service employment contracts. What the University employment contract states was that the conditions are “comparable to those that apply in the National Public Service”. It does not state which conditions they are and does not even say the same conditions applied in this contract. Being comparable is not the same as being applied. The conditions were written and were before the National Court and His Honour did not set them out at all? The National Court has proceeded on the wrong footing, that the Agreement was the same as that in the Public Service, whilst the contract of employment does not say so.

b) The National Court erred in law and fact in building into the contract of employment terms that are not in the contract of employment of the respondent at all by deciding that the terms of the conditions applicable to the Public Service employees apply to the contract of employment of the respondent.

c) There was no specific right under the Respondent’s employment contract to be heard before termination. The National Court erred in law and fact in building that right into the employment contract.

d) The National Court having...