Waro v Mann [2005] PGDC 104; DC421 (26 August 2005)

DC421

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 217 OF 2005

BETWEEN

Robert Waro
Complainant

V

Dr Nicholas Mann
Department of Health
First Defendant

Independent State of Papua New Guinea
Second Defendant

Port Moresby: Bidar, Pm
2005: 26th August

Damages-
Unlawful termination of employment
Casual employee
General Damages and specific performances sought
General Principles – Judgment for Defendants

Master and Servant – Right of employer to hire and fire – circumstances

Cases cited

Legislation
Employment Act (Ch No 373)

DECISION

26th August, 2005

BIDAR, PM: This is an action by Complaint against the Defendants for unlawful termination of his employment.

Complainant was employed by Department of Health under Health Facilities Branch as a messenger, Book Binder and Filing Clerk for five years. Complainant’s engagement was on a casual basis. He was served together with 8 others termination notice on 19th November 2003. The letter dated 17th October, 2003 addressed to Complainant that he was identified as one of the excess casual employees in 2003 and can no longer retain him under 2003 – 2004 budget. His full entitlements have been calculated and subsequently paid to him.

Complainant commenced employment with Department of Health on 1st September, 1998 as a casual on clerk class 2 salary level. On or about 27th June 2000, the Complainants position was reclassified to Clerk Class 4 and performed duties as Book Binder, Messenger and Filing Clerk. Whilst employed as casual worker, he made constant enquiries with his supervisor about his promotion or permanency of employment. Despite his enquiries he remained a casual employee until he received his termination notice.

The Law

The relevant law is the employment Act (Ch No 373) and principles of Common Law and Equity in their circumstantial application.

In Ridge –V- Baldwin [1963] UKHL 2; (1964) A.C. 40, Lord Reid said:

"The law regarding master and servant is not in doubt, there cannot be specific performance of a contact of service, and the master can terminate the contract with his servant at anytime and for any reason or for non. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract."

In this case complainant does not allege breach of contract of employment but say that the termination of his casual employment was unlawful.

The terms of complainant casual employment are unclear in which case, the provisions of Employment Act apply: SC 36 of the Act provides: grounds upon which an employee can terminate employment without notice. In Common Law generally an employer has the right to dismiss an employee without notice for such express matters as insubordination, misconduct etc.

In this case, Complainant was identified together with others as excess casual employees and the 2003 – 2004 Budget could not maintain so many excess casuals. The decision to terminate excess casual was perhaps based on budgetary and policy reasons of the Department.

I have considered evidence filed for complainant thoroughly and I am unable to be satisfied on the balance of probabilities that, the termination of Complainants casual employment was unlawful. In fact it was Departmental decision based on Budgetary reasons to terminate the excess casual employees, including the complainant. In all the circumstances, I find in favour of the Defendants. In any case, this Court lacks Jurisdiction to award specific performance, i.e. to order reinstatement of the Complainant to the position he occupied at the time of his termination.

I therefore enter Judgment for Defendants. I dismiss this proceedings Complainant to pay his own costs.

Complainant appeared in person:

No appearance by or on behalf of the Defendants

BIDAR, PM:
Rules accordingly.

Lawyer: Complainant
Lawyer: Defendant