Wilson Thompson v National Capital District Commission and The City Manager (2004) N2686

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 11 October 2004
• Court: National Court
• Citation: (2004) N2686
• Year: 2004
• Judgement Number: N2686

Full Title: Wilson Thompson v National Capital District Commission and The City Manager (2004) N2686

National Court: Kandakasi J

Judgment Delivered: 11 October 2004

1 PRACTICE AND PROCEDURE—Pleadings and proof—Plaintiff under duty to plead and prove his damages—Failure to—No award of damages.

2 EMPLOYMENT LAW—Employment with public authority—Authority of political head to execute purported contract of employment promoting an existing employee—No evidence of authority and approval by relevant authority—Effect of—Purported contract null and void—Employee remaining employed on existing position—Termination of—Employee leaving employment for another without prior notice and approval of employer—Effect of—Constructive termination—Employer entitled to terminate without notice or payment in lieu of—National Capital District Commission Act s32, s33, s34.

3 DAMAGES—Contract entitles—Claim for balance of—Effect of—Unenforceable penalty clause—Real measure of damages—Period of notice—Where payment made in lieu of notice—Plaintiff failing to provide evidence of damages pleaded—Effect of—No basis to assess and award damages.

4 Mark Ankama v Papua New Guinea Electricity Commission (23/10/02) N2363, Rimbink Pato & Anor v Reuben Kaiulo & Ors (29/08/03) N2455, Teio Raka Ila v Wilson Kamit (11/10/02) N2291, Wyatt Gallagher Bassett Limited v Benny Diau (16/08/02) N2277, National Airline Commission v Lysenko [1990] PNGLR 226, Tolom Abai & 765 Ors v The State (20/12/95) N1402, Coecon Ltd v The National Fisheries Authority of Papua New Guinea (28/02/2002) N2182, Andrew Moka v Motor Vehicles Insurance (PNG) Limited (01/04/04) SC729, PNGBC v Jeff Tole (27/09/02) SC694, Igiseng Investments Ltd v Starwest Constructions Ltd (17/12/03) N2498, Tom B Gesa v Bernard Kipit & NCDC (06/08/03) N2457, Mathew Himsa & Anor v Richard Sikani (08/11/02) N2307, John Kopil v Malcolm Culligan & The State (28/06/95) N1333, Sulaiman v PNG University of Technology (20/08/87) N610, Albert Kuluah v The University of Papua New Guinea [1993] PNGLR 494, Godfrey Niggints v Henry Tokam& Ors N1158, Pochon Lili v Jospeh Gabut and Ors N1394, Leo Nuia v The State (29/08/00) N1986, Steamships Trading Co, Ltd v Joel & Ors [1991] PNGLR 133, Steamships Trading Co, Ltd v Joel & Ors [1991] PNGLR 133 at 141, Jimmy Malai v Papua New Guinea Teachers Association [1992] PNGLR 568, Andrew Moka v Motor Vehicles Insurance (PNG) Limited (18/05/01) N2098, Andrew Moka v Motor Vehicles Insurance (PNG) Limited (01/04/04) SC729, PNGBC v Jeff Tole (27/09/02) SC694, Post Puma Ltd v Yama Security Services Ltd (unnumbered judgment 26/07/01) SCA No, 80 of 2000, Appa v Wama [1992] PNGLR 395, Robert Karava v Kevin Byrne and Tourism Promotion Authority () N1805 referred to

Facts

Under a written contract of employment, the Second Defendant (NCDC) employed the plaintiff as its Revenue Controller. Sometime later, the National Government suspended the powers and functions of the NCDC. During the period of suspension, the Minister responsible for Provincial Affairs purported to execute a contract of employment with the plaintiff for the position of Deputy City Manager (DCM contract) with the NCDC. That contract was not approved by the Salaries and Conditions Monitoring Committee (SCMC) as required by the Salaries and Conditions Monitoring Committee Act 1988. The NCDC through its City Manager played no part in the contract and only came to learn of it later. Eventually, the NCDC suspended the plaintiff. Whilst under suspension, the plaintiff secured employment with the Liquor Licensing Commission as its Chief Licensing Commissioner, without any prior knowledge and approval of the NCDC. So on learning of that, the NCDC terminated the plaintiff's employment with it as its Revenue Controller and paid him his final entitlements, which he accepted. However, he later sued for some damages on the basis of his DCM contract and the National Court made certain awards and ordered the plaintiff to reimbursement some payments he received from the NCDC. Thereafter he sued for damages for the balance of his DCM contract claiming his termination was unlawful.

Held

1. The then political head of the NCDC the relevant Minister, did not have the power and or authority to execute the purported DCM contract, which was an administrative function usually vested in an administrator and not a political or policy head such as the Minister.

2. The purported DCM contract was null and void because:

(a) it was entered into without the necessary statutory or legal authority; and

(b) it did not get the approval of the SCMC, which is mandatory under the SCMC Act.

3. The plaintiff's acceptance of his employment with the Liquor Licensing Commission amounted to a breach of his employment contract with the NCDC in that:

(a) he did not comply with the contracts notice requirements; and

(b) he took up an alternative employment without the prior approval of the NCDC.

4. The validity of the DCM contract was not res judicata because there was no evidence:

(a) in terms of s44 of the Evidence Act; and

(b) that the same issues raised in these proceedings were raised and determined on its merits in the earlier proceedings.

5. The plaintiff's conduct in terms of (2) and (3) above, vested in the NCDC a right to terminate its employment contract with the plaintiff without notice by reason of which the termination of its contract with the plaintiff was lawful disentitling the plaintiff to any damages as claimed or at all.

6. Further or in the alternative, the plaintiff's claim for the balance of his purported DCM contract cannot be upheld because:

(a) there was no foundation in the contract;

(b) if there was foundation in contract it would amount to a penalty and therefore unenforceable; and

(c) the plaintiff failed to establish his claim for damages by appropriate evidence.

___________________________

N2686

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 312 OF 2000

WILSON THOMPSON

Plaintiff

AND:

NATIONAL CAPITAL DISTRICT COMMISSION

First Defendant

AND:

THE CITY MANAGER

Second Defendant

WAIGANI: KANDAKASI, J.

2003: 21st November

2004: 11th October

PRACTICE & PROCEDURE – Pleadings and proof – Plaintiff under duty to plead and prove his damages – Failure to – No award of damages.

EMPLOYMENT LAW – Employment with public authority – Authority of political head to execute purported contract of employment promoting an existing employee - No evidence of authority and approval by relevant authority – Effect of - Purported contract null and void – Employee remaining employed on existing position - Termination of – Employee leaving employment for another without prior notice and approval of employer – Effect of – Constructive termination – Employer entitled to terminate without notice or payment in lieu of – National Capital District Commission Act ss.32, 33, 34.

DAMAGES – Contract entitles – Claim for balance of – Effect of – Unenforceable penalty clause – Real measure of damages – Period of notice - Where payment made in lieu of notice – Plaintiff failing to provide evidence of damages pleaded – Effect of – No basis to assess and award damages.

Facts

Under a written contract of employment, the Second Defendant (NCDC) employed the plaintiff as its Revenue Controller. Sometime later, the National Government suspended the powers and functions of the NCDC. During the period of suspension, the Minister responsible for Provincial Affairs purported to execute a contract of employment with the plaintiff for the position of Deputy City Manager (DCM contract) with the NCDC. That contract was not approved by the Salaries and Conditions Monitoring Committee (SCMC) as required by the Salaries and Conditions Monitoring Committee Act 1988. The NCDC through its City Manager played no part in the contract and only came to learn of it later. Eventually, the NCDC suspended the plaintiff. Whilst under suspension, the plaintiff secured employment with the Liquor Licensing Commission as its Chief Licensing Commissioner,...